Opinion
23458.
March 5, 2003.
Appeal from an order of the Civil Court of the City of New York, New York County (Paul G. Feinman, J.), dated February 1, 2002, which granted a motion by defendant Chelsea Piers, L.P. for summary judgment dismissing the complaint as against it.
Mann Bent, P.C., White Plains (Emily C.F. Mann and Francis B. Mann, Jr., of counsel), for appellant.
Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman and Stuart M. Bodoff of counsel), for Chelsea Piers, L.P., respondent.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
Order dated February 1, 2002 affirmed, with $10 costs.
Plaintiff appeals from an order of the Civil Court, New York County, dated February 1, 2002 (Paul G. Feinman, J.) which granted a motion by defendant Chelsea Piers, L.P. for summary judgment dismissing the complaint as against it.
Order dated February 1, 2002 (Paul G. Feinman, J.) affirmed, with $10 costs.
Plaintiff sues to recover damages for injuries allegedly sustained when, on a "clear" September afternoon in 1997, she tripped and fell while attempting to step over a pile of garbage bags located on a pier leased by defendant Chelsea Piers, L.P. The undisputed record evidence shows that plaintiff, while on her routine exercise regimen in the area known as "Chelsea Piers," walked "up and down and up and down" an adjoining pier for 15 or 20 minutes before turning onto and walking "brisk[ly]" along Pier 61, a "walkway" approximately five feet in width; that roughly one-third of the way "down the pier," plaintiff came upon 20 to 30 garbage bags that had been unloaded onto the pier from a moored vessel shortly before plaintiff's accident and placed in a pile "two to three bags deep"; that plaintiff stopped "for a few seconds" to decide "the best way to go," and ultimately attempted to traverse the two-foot high pile; and that plaintiff fell when her foot failed to "reach the other side" and "caught" on one of the garbage bags. Notably, plaintiff, by her own account, could have avoided the pile of garbage bags entirely, either by walking around them by momentarily entering one of several open entrance doors to a garage situated right next to the pier or by simply "turn[ing] around and walk[ing] the way [she] came."
Whether or not the temporary placement of the garbage bags on the pier created a dangerous condition, Civil Court correctly concluded that plaintiff was expressly aware of the condition and proceeded at her own peril (see, Germain v Hegedus, 289 A.D.2d 443, 444; Tarrazi v 2025 Richmond Ave. Assoc., 260 A.D.2d 468, 469). "Liability under common-law negligence will not attach when the allegedly dangerous condition complained of was open and obvious, particularly when the injured plaintiff was aware of it" (Nardi v Crowley Mar. Assocs., 292 A.D.2d 577;see, Patrie v Gorton, 267 A.D.2d 582, lv denied 94 N.Y.2d 761). "While the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question . . . a court may determine that a risk was open and obvious as a matter of law [where, as here,] the established facts compel that conclusion" Tagle v Jakob, 97 N.Y.2d 165, 169). Since the uncontested proof shows that the garbage bags were readily observable by a reasonable use of one's senses and that the plaintiff in fact saw and was aware of the bags before the accident, summary judgment was properly granted to defendant.
This constitutes the decision and order of the court.
DISSENTING MEMORANDUM
The negligence action stems from allegations that on September 7, 1997, at approximately 3:00 p.m., plaintiff Cecelia Rogers fractured her right elbow when she tripped and fell on a pile of garbage bags strewn across a public walkway abutting Pier 61 in Manhattan. The pier area was leased by the State of New York to defendant Chelsea Piers, L.P., which, in turn, subleased a portion of the pier area and granted mooring rights to defendant Spirit Cruises, Inc. Pursuant to its main lease agreement with the State, defendant Chelsea Piers was obligated to "keep or cause to be kept clean and free from dirt, snow, ice, rubbish, [and] obstructions, the sidewalks [and] grounds . . . comprising, in front of or adjacent to the Premises." The record shows, and it is undisputed, that employees of defendant Spirit Cruises placed the garbage bags on the walkway after unloading them from a moored vessel upon its return from a lunchtime cruise.
Plaintiff's deposition testimony indicates that the garbage bags, 20 to 30 in number, spanned the entire width of the pier walkway; that the only way for a pedestrian to walk around the garbage bags (short of a dunk into the Hudson River) was to cut through an indoor garage facility located immediately adjacent to the walkway, an option that plaintiff eschewed because the garage "was dark, and there were a lot of cars parked close together and it didn't appear to be all that safe"; and that she attempted to "get through the garbage" in "the most reasonable way" available, by traversing the pile of garbage bags at its narrowest (two to three feet) and lowest (one-and-a-half to two feet) point.
Viewing the evidence in the light most favorable to plaintiff (see,Orellana v Merola Assoc., 287 A.D.2d 412), I find unavailing the argument of defendant Chelsea Piers that it is entitled to summary judgment on the ground that the allegedly dangerous condition was open and obvious. To the extent that the ancient and oft-criticized "no duty" rule in cases of open and obvious risk remains viable as a complete defense to landowners or lessees subject to premises liability in this State (see, Michalski v Home Depot, 225 F.3d 113, 118-119 [2d Cir, analyzing New York case law and recognizing a split in authority among the Appellate Divisions with regard to observable hazards]), the doctrine is typically applied to situations where an inattentive plaintiff trips as a result of a plainly visible and easily avoidable object or condition that is not inherently dangerous ( see, e.g., Schoen v. King Kullen Grocery Co., 296 A.D.2d 486 [2d Dept] [flat cardboard on supermarket floor]; Gibbons v Lido and Point Lookout Fire District, 293 A.D.2d 646 [2d Dept] [cement parking block on firehouse floor]; Stemberga v Term Security Corp., 292 A.D.2d 372 [2d Dept] [ottoman in restaurant]; Moran v County of Dutchess, 237 A.D.2d 266 [2d Dept] [monument]; Hopson v Turf House, Inc., 252 A.D.2d 796 [3d Dept] [floor planter "island" adjacent to restroom doorway]). Significantly, with but a single exception, rigid application of the exculpatory open and obvious doctrine has given way in this Department to a more flexible rule consistent with modern principles of premises liability, a rule stated thusly: the fact that a dangerous condition is readily observable does not negate the duty of a landowner or lessee to keep the premises reasonably safe but simply raises triable issues as to the parties' comparative negligence ( see, Gaffney v Port Auth., 301 A.D.2d 424, 2003 WL 124856, decided Jan. 16, 2003 [1st Dept]; Orellana v Merola Assocs., 287 A.D.2d 412, 413,supra [1st Dept]; Tuttle v Anne LeConey, Inc., 258 A.D.2d 334, 335 [1st Dept]; see also, Vereerstraeten v Cook, 266 A.D.2d 901 [4th Dept]).
The "no duty" open and obvious rule continues to apply throughout the State in negligence actions in which, unlike the matter at hand, liability is sought to be imposed principally on the basis of a landowner's or lessee's failure to warn of a readily observable danger ( see, Tagle v Jakob, 97 N.Y.2d 165, 169 [no duty to warn of open and obvious danger posed by electric transmission wires]; Pinero v Rite Aid, 294 A.D.2d 251, 252 affd 99 N.Y.2d 541, decided Dec. 12, 2002 [no duty to warn of presence of wagon in store aisle, since "the condition is a warning in itself"]; Rosen v New York Zoological Soc., 281 A.D.2d 238 [1st Dept] [no duty to warn of the open and obvious danger of "the natural condition of the terrain"]).
Adhering to the above-cited controlling precedent from our Appellate Division, the conclusion is inescapable that the open and obvious nature of the pile of garbage bags encountered by plaintiff does not serve to shield defendant Chelsea Piers from liability as a matter of law, but merely raises questions of causation involving the parties' comparative fault that should be resolved by the trier of facts. Defendant Chelsea Piers' reliance on the now disfavored open and obvious doctrine is particularly misplaced in the circumstances here presented, where the record so far developed tends to support a finding that the garbage blockade that Chelsea Piers permitted to remain on the public walkway unreasonably interfered with pedestrian access to the walkway and created a readily foreseeable risk of harm to pedestrians (compare, Tillman v New York City Hous. Auth., 15 A.D.2d 738, affd 12 N.Y.2d 898 [trial evidence showed that stone slab upon which plaintiff allegedly fell did not unreasonably interfere with sidewalk and that a pedestrian was "merely called upon to deviate his path slightly . . . [to] continue on the paved walk"]). "The right afforded an owner [or occupier] of land to utilize an abutting sidewalk [or walkway] temporarily for the placement of garbage awaiting collection is not an absolute right to obstruct the sidewalk [or walkway] in derogation of the rights of pedestrians." (Baum v City of New York, 270 A.D.2d 109.) On this record, the issue of the parties' comparative fault should be left for trial, with the trier of facts to determine whether defendant Chelsea Piers fulfilled its duty to keep the premises reasonably safe by providing a passable route for pedestrians ( see, Gaffney v. Port Auth., 301 A.D.2d 424, supra) and whether it was unreasonable for plaintiff to attempt to step over the bags at what appeared to be the most readily traversable point, in lieu of choosing the alternative options now suggested by defendants: entering into the darkened, indoor garage facility which appeared unsafe to plaintiff or summarily turning around and ending her routine "pier walk" (see,Vereerstraten v Cook, 266 A.D.2d 901, supra [summary judgment dismissal of negligence action unwarranted even though plaintiff chose to walk through broken glass readily observable on sidewalk]).
In essence, defendant Chelsea Piers argues and the majority holds that plaintiff assumed the risk of injury when she proceeded to walk in the area covered by the garbage bags, rather than abandoning, or at least altering her intended exercise program by choosing from among several dubious options. However, "[i]t is well settled that the doctrine of primary assumption of risk which, if applicable, would operate as a complete bar to an injured plaintiff's claim, 'is limited to plaintiffs injured while voluntarily participating in a sporting or entertainment activity' (Corneau v Wray, 241 A.D.2d 602, 604). Since the doctrine is clearly not applicable here, the comparative negligence statute applies (see, CPLR 1411), which 'merely reduces the plaintiff's recovery in the proportion which his or her conduct bears to the defendant's culpable conduct' (Cohen v Heritage Motor Tours, 205 A.D.2d 105, 108), a determination which must be left to the jury." (Stirpe v Maloney Sons, 252 A.D.2d 871, 872.) While Judge Cardozo sagely cautioned "[t]he timorous [to] stay at home" rather than face the obvious perils of "The Flopper," a Coney Island amusement ride (Murphy v Steeplechase Amusement Co., 250 N.Y. 479, 483), the law does not and should not require an urban dweller to stay at home and forsake the simple pleasure of a midday stroll any time a negligent landowner or lessee sees fit to place obstacles along or otherwise restrict access to a public walkway.
Finally, notice of the dangerous condition can be inferred from evidence in the record, including the deposition testimony of defendant Chelsea Piers' senior vice-president, that Chelsea Piers had "frequently" warned its cruise line subtenant not to "block the walkways because . . . we have public access requirements," and that Chelsea Piers itself had routinely cleaned up "off-load[ed]" garbage from the pier walkway (see, O'Grady v New York City Housing Auth., 289 A.D.2d 442).
I thus respectfully dissent, and would reverse the order appealed from and deny defendant Chelsea Piers the drastic remedy of summary judgment.
SUAREZ, P.J., and McCOOE, J., concur; GANGEL-JACOB, J., dissents in a separate memorandum.