Opinion
March 3, 1998
Appeal from the Supreme Court, New York County (Carol Huff, J.).
Plaintiff was injured when he tripped and fell over an I-beam located across a sidewalk. The I-beam was part of a construction project. The defendants in this case were the contractor and subcontractors hired for restoration work on a building adjacent to the location of the accident, and the building owner. Plaintiff tripped while walking to work along the same route that he walked on a regular basis; however, this was the first time that he had come across the construction work. The 6 to 8 inch high I-beam lay across the sidewalk at the construction site. As he approached, he noticed that there was no sign directing pedestrian traffic away from this part of the sidewalk, nor cones or other obstructions barring or warning pedestrians. As such, he proceeded to continue his walk, but, as he stepped over the I-beam, his foot caught on the protruding part of the beam, causing him to fall.
We disagree with the motion court that, as a matter of law, the only cause of the accident was plaintiff's own conduct which was reckless and unforeseeable, and that plaintiff's assumption of an unnecessary risk in stepping over the I-beam, rather than altering his route, relieved the defendants of their own negligence or the consequences of administrative violations. Rather, once plaintiff established his prima facie case that defendants were negligent in the placement of the I-beam and in failing to take adequate safeguards ( see, Administrative Code of City of N Y § 27-1018 [a]; § 27-1009 [a]), proximate cause became an issue of fact ( Mirand v. City of New York, 84 N.Y.2d 44, 51; Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 586), especially when multiple inferences may be drawn from the evidence ( Nowlin v. City of New York, 81 N.Y.2d 81; Butler v. Helmsley-Spear, Inc., 198 A.D.2d 131, 132). This is not the type of rare case where "`only one conclusion may be drawn from the established facts'" ( Kriz v. Schum, 75 N.Y.2d 25, 34, quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315), so that the defendants may "unequivocally establish [that they] could not have contributed to the causation of plaintiff's injury" ( Reid v. Georgia-Pacific Corp., 212 A.D.2d 462, 463). Nor as a matter of law was plaintiff's conduct unforeseeable, ordinarily a factual issue itself ( Kriz v. Schum, supra). Finally, whether or not plaintiff assumed a risk by stepping over the I-beam, rather than avoiding it, also remains a factual issue under the circumstances of this case.
Concur — Milonas, J. P., Rosenberger, Ellerin and Tom, JJ.