Opinion
Index No. EF202216362
11-03-2023
MICHAEL J. POWERS, Plaintiff, v. SALLY MILES, Defendant.
Unpublished Opinion
DECISION & ORDER
RICHARD A. KUPFERMAN, JUSTICE
This is a premises liability action stemming from an accident which occurred in June 2022 at the defendant's house in South Glens Falls. The plaintiff alleges that he tripped and fell on a watering can while descending the exterior deck stairs. The parties have been deposed and a note of issue has been filed. The defendant now seeks summary judgment dismissing the complaint. The plaintiff opposes the motion.
Facts
(Viewed in the Light Most Favorable to the Non-Moving Party)
At the time of the accident, the plaintiff ("Michael") was residing with the defendant ("Sally") in a two-story house. Michael paid rent monthly to Sally (his girlfriend/landlord) and helped with household services. On the day in question, Michael planned to move a trampoline in the yard for Sally. A neighbor was also enlisted to help. At some point, Michael and the neighbor walked across a wooden deck in the backyard for this reason. It was late in the afternoon. The weather was clear and sunny.
As Michael walked across the deck, he followed the neighbor towards the deck stairs. The neighbor then descended the stairs without incident. Michael, however, tripped and fell early in his descent on the stairs. Michael does not remember if he looked down. He recalls looking "out into the yard" as he approached the stairs. Michael believes his foot encountered a watering can on the stairs prior to his fall (it was probably located on the first step down). As a result, Michael fell down the steps and sustained serious injuries. Shortly thereafter, Sally (who was not present for the fall), went to the backyard. Upon observing the accident scene, she responded, "Oh God, he tripped on my cans."
When he was first asked at his deposition what caused him to fall, Michael testified in an equivocal manner. Nonetheless, he later confirmed during questioning by his attorney that his foot encountered the watering can before he fell.
The deposition testimony indicates that the stairs were approximately four feet wide with railings. At the time of the accident, there were two or four 14-inch metal watering cans located on the staircase on the sides (one or two on both sides of the stairs). Sally had placed the watering cans on the stairs for decorative purposes for the Spring and Summer. Michael believed the watering cans were empty and not filled with water.
Michael testified that he had previously noticed the watering cans on the stairs. However, he also testified that he seldom (if ever) used the deck stairs and did not remember using them before the accident. He did not know whether the watering cans had been on the deck stairs the previous year. He explained that Sally "does like to decorate and she does do different things ... around in the house, in the yard."
Analysis
The motion for summary judgment is based on two grounds. The first ground asserted is that the watering cans were open and obvious and not inherently dangerous. The second ground asserted is that there is no evidence that the landowner had notice of the alleged dangerous condition.
It is well-settled that a landowner must "exercise reasonable care to maintain [his or her] premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Anton v Correctional Med. Servs., Inc., 74 A.D.3d 1682,1683 [3d Dept 2010] [internal quotation marks and citations omitted]; see Osterhoudt v Acme Mkts., Inc., 214 A.D.3d 1181, 1181 [3d Dept 2023]; Salomon v Prainito, 52 A.D.3d 803, 804-805 [2d Dept 2008]).
An owner, however, does not need to protect against an open and obvious condition that, as a matter of law, is not inherently dangerous (see Nannariello v Kohl's Dept. Stores, Inc., 161 A.D.3d 1089 [2d Dept 2018]; Bogaty v Bluestone Realty NY, Inc., 145 A.D.3d 752 [2d Dept 2016]; Mullen v Helen Keller Servs. for the Blind, 135 A.D.3d 837 [2d Dept 2016]; Atehortua v Lewin, 90 A.D.3d 794 [2d Dept 2011]; Anton v Correctional Med. Servs., Inc., 74 A.D.3d at 1682; Sun Ho Chung v Jeong Sook Joh, 29 A.D.3d 677 [2d Dept 2006]; see also Cupo v Karfunkel. 1 A.D.3d 48 [2d Dept 2003]).
"The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case" (Osterhoudt, 214 A.D.3d at 1181 [internal quotation marks, alterations, and citations omitted]). These fact-specific inquiries are usually jury questions (see Tagle v Jakob. 97 N.Y.2d 165,169 [2001]; Greblewski v Strong Health MCO, LLC, 161 A.D.3d 1336, 1336 [3d Dept 2018]).
The appellate courts, for example, have found issues of fact for trial, precluding summary judgment in favor of landowners, in cases where the plaintiff tripped over objects such as a table, a box, a mail bin, a pallet jack, a decorative fence, a wheelchair scale, a metal railing, and an orange warning cone, among other things (see Osterhoudt, 214 A.D.3d at 1181 [pallet jack]; Rosenman v Siwiec, 196 A.D.3d 523 [2d Dept 2021] [decorative fence]; Pizzolo v Thyssenkrupp El. Corp., 189 A.D.3d 560 [1st Dept 2020] [pallet stacked with boxes]; Rivera v Rochester Gen. Health Sys., 173 A.D.3d 1758 [4th Dept 2019] [wheelchair scale]; Dudnik v 1055 Hylan Offs., LLC. 164 A.D.3d 870 [2d Dept 2018] [metal railing]; Greblewski v Strong Health MCO, LLC, 161 A.D.3d 1336 [3d Dept 2018] [wheel stop the same color as the ground in an allegedly poorly lit parking garage]; Dalton v North Ritz Club, 147 A.D.3d 1017 [2d Dept 2017] [knee-high table]; Russo v Home Goods, Inc., 119 A.D.3d 924 [2d Dept 2014] [empty dolly]; Pellegrino v Trapasso, 114 A.D.3d 917 [2d Dept 2014] [Belgian blocks]; Toro v Friedland Props., Inc., Ill. A.D.3d 921 [2d Dept 2013] [Mickey Mouse ride]; Gordon v Pitney Bowes Mgt. Servs., Inc., 94 A.D.3d 813 [2d Dept 2012] [mail bin]; Beck v Bethpage Union Free School Dist, 82 A.D.3d 1026 [2d Dept 2011] [wheel of a book cart]; Stoppeli v Yacenda, 78 A.D.3d 815 [2d Dept 2010] [beam]; Francis v 107-145 W. 135th St. Assoc., Ltd. Partnership, 70 A.D.3d 599 [1st Dept 2010] [metal grate]; Westbrook v WR Activities-Cabrera Mkts., 5 A.D.3d 69 [1st Dept 2004] [box in supermarket aisle]; Monge v Home Depot, Inc, 307 A.D.2d 501 [3d Dept 2003] [plant display]; see also Cassone v State of New York, 85 A.D.3d 837 [2d Dept 2011] [orange warning cone]).
Here, viewing the evidence in the light most favorable to the plaintiff as the non-moving party and affording him the benefit of every favorable inference, as the Court must on this summary judgment motion (see Acton v 1906 Rest. Corp., 147 A.D.3d 1277,1279 [3d Dept 2017]), material issues of fact exist for a jury to determine. On the issue of the open and obvious nature of the condition, Michael admitted that he had previously observed the watering cans on the steps and that he had resided at the premises for several years. Nonetheless, the record lacks sufficient details to establish conclusively that he knew and recalled the condition on the day in question. The deposition questioning does not reveal when Michael last observed the watering cans prior to the accident or the frequency (if any) of his observations. Michael also did not recall using the stairs for several months prior to the accident. This creates credibility issues for a jury to resolve.
The watering cans were also small (approximately 14-inches tall) and allegedly difficult to observe from the deck on which Michael was walking. In fact, the watering cans were placed at a lower elevation than the deck, having been placed on the descending steps, making them even more difficult to observe than if they had been placed at deck level. Michael was also following the neighbor and appears to have been preoccupied at the time. With the condition allegedly obstructed and Michael distracted, these circumstances could support the conclusion that the condition was a "trap for the unwary" and therefore create (at least on this record) an issue of fact for the jury to determine regarding whether the watering cans were an open and obvious condition (Rosenman, 196 A.D.3d at 525; see also Dalton, 147 A.D.3d at 1017; Gordon, 94 A.D.3d at 814-815).
In any event, even if the condition was open and obvious, a plaintiffs familiarity of a dangerous condition and its obviousness "does not preclude liability on a landowner as a matter of law; rather, it is a factor that impacts the foreseeability of an accident and the comparative negligence of the injured party" (Osterhoudt, 214 A.D.3d at 1181 [internal quotation marks omitted], citing MacDonald v City of Schenectady, 308 A.D.2d 125, 129 [3d Dept 2003]; Cupo v Karfunkel, 1 A.D.3d 48, 53 [2d Dept 2003]; and Cohen v Shopwell, Inc., 309 A.D.2d 560, 561 [1st Dept 2003]; see also Barley v Robert J. Wilkins, Inc., 122 A.D.3d 1116, 1118 [3d Dept 2014]; Timmins v Benjamin, 77 A.D.3d 1254, 1255 [3d Dept 2010]). As such, as a prerequisite to prevail on this motion Sally was required to demonstrate that the condition was not inherently dangerous as a matter of law.
This case, however, is factually distinct from cases which have found that the alleged dangerous condition was not inherently dangerous as a matter of law, such as where the plaintiff fell at a department store while attempting to walk past a merchandise rack; where the plaintiff tripped over a wheel stop in a parking lot; where the plaintiff tripped over a treadmill in a gym; where the plaintiff tripped over a "Slip and Slide" in a yard; where the plaintiff walked into a metal bedframe positioned along one of the walls of the medical unit of a county jail; and where the plaintiff tripped over yellow warning tape used to block off the sidewalk in front of a construction site (see Nannariello, 161 A.D.3d at 1089; Bogaty, 145 A.D.3d at 752; Mullen, 135 A.D.3d at 837; Atehortua, 90 A.D.3d at 794; Anton, 74 A.D.3d at 1682; Sun Ho Chung, 29 A.D.3d at 677).
Those cases generally involved much larger objects or ones typical for the property and located in an area reasonably suitable for their nature. Unlike in those cases, the watering cans were much smaller and placed on a pathway commonly used for walking. The watering cans were also allegedly difficult to observe from the deck level given that they were placed at a lower elevation on one of the descending steps. These conditions support a conclusion that it was foreseeable that someone could trip on the watering cans, and that the injuries could be very serious based on the fall from the elevated height. The watering cans were also light and easy to move and therefore could have been placed elsewhere for decorative purposes, making the burden of avoiding the risk relatively small.
Based on the totality of the circumstances, the Court cannot conclude as a matter of law that the watering cans on the stairs were not inherently dangerous. The determination of whether Sally breached her duty of care to maintain the premises in a reasonably safe condition and the extent of Michael's comparative fault, among other things, are issues for the jury to determine (see e.g. Rosenman, 196 A.D.3d at 523; Rivera, 173 A.D.3d at 1758; Dudnik, 164 A.D.3d at 870; Dalton, 147 A.D.3d at 1017; Russo, 119 A.D.3d at 924; Pellegrino, 114 A.D.3d at 917; Gordon, 94 A.D.3d at 813; Beck, 82 A.D.3d at 1026; Stoppeli, 78 A.D.3d at 815; Westbrook, 5 A.D.3d at 69; Monge, 307 A.D.2d at 501).
Further, it is not fatal that Michael initially provided equivocal testimony on the cause of his fall. As explained above, he later clarified during his deposition that his foot encountered the watering can prior to his fall. In addition, the other evidence presented on the motion also permits a reasonable inference that Michael tripped on the can (see e.g. Timmins, 77 A.D.3d at 1256).
The Court further rejects the contention that Sally did not have sufficient notice of the dangerous condition prior to the accident. The moving papers fail to adequately address this issue for purposes of this motion. It is also undisputed that Sally placed the watering cans on the stairs. This renders the notice requirement inapplicable (see Osterhoudt, 214 A.D.3d at 1183; Barley, 122 A.D.3d at 1118; Westbrook, 5 A.D.3d at 75).
It is therefore, ORDERED, that the defendant's motion is DENIED; and it is further
ORDERED, that the parties and their counsel shall appear for an in-person settlement conference at the courthouse (with the insurance adjuster readily available by telephone) on February 7, 2024 at 3:00 p.m. The parties should be prepared at the conference to provide the Court with a witness list and discuss the anticipated number of days required to conduct the trial.
This shall constitute the Decision &Order of the Court. No costs are awarded to any party. The Court is hereby uploading the original Decision &Order into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.