Opinion
Index No. EF000643-2019 Sequence No. 1
11-25-2020
ARIANNA ROSADO-SILVER, Plaintiff, v. WIDMER RESTAURANT CORP., Defendant.
Unpublished Opinion
Motion Date: 9/3/2020
DECISION AND ORDER
Craig Stephen Brown Judge
The following papers numbered 1 to 17 were considered in connection with the motion by defendant Widmer Restaurant Corp. for an Order, pursuant to CPLR 3211 and 3212, granting • summary judgment and dismissing plaintiffs complaint.
PAPERS NUMBERED
Notice of Motion/Affirmation in Support (Barbour)/Exhibits A-G 1-9
Affirmation in Opposition (DelDuco)/Afrldavit of Wooley/Exhibits 1-3 10-14
Reply Affirmation (Barbour)/Exhibit A 15-16
Letter to Court (DelDuco) w/CV of Wooley 17
Upon the foregoing, it is ORDERED that defendant's motion for summary judgment dismissing plaintiff s complaint against it is denied.
Background and Procedural History
This is a motion for summary judgment in' a personal injury action arising from an incident that took place on April 14, 2018 at 70 Widmer Road, Wappingers Falls, Dutchess . County, New York. Plaintiff Arianna Rosado-Silver (Silver) alleges her right hand was injured when a helium tank that stood unsecured on a loading dock fell and struck her.
The action was commenced by the filing of a summons and complaint on January 23, 2019. Issue was joined by service of defendant Widmer Inn Restaurant Corp.'s (Widmer) verified answer, on March 25, 2019. Depositions of Silver, non-party witness Milagros Villanueva Celestin (Celestin), and defendant's manager, Paul Porco (Porco), were conducted on September 11, 2019. Defendant now moves for summary judgment dismissing the complaint.
The signed transcripts of Silver's, Celestin's and Porco's EBT testimony have not been returned to respective counsel (Barbour Affidavit at ¶¶ 8, 10, 12). They are being used here pursuant to CPLR 3116(a).
Facts
The following relevant facts are undisputed:
The subject location is known as 'Villa Borghese,' a catering facility at which a wedding' reception was to be held later that day. Silver and Celestin were delivering flowers for the wedding by way of the loading dock behind the building. While making the delivery, an unsecured helium tank standing on the loading dock fell, injuring Silver.
Beyond this, the parties dispute the cause of the tank's fall and who is responsible for plaintiff s injuries.
Plaintiffs Testimony
Silver and Celestin had been hired to provide table centerpieces for the wedding. Celestin was instructed by an unidentified individual to use the loading dock to make the delivery.
Celestin stood atop the approximately two-foot high loading.dock while Silver removed the centerpieces from her car and passed them up to Celestin two-at-a-time. Celestin took the centerpieces inside, then returned to the loading dock to take two more centerpieces from Silver. Silver observed Villa Borghese employees in the area of both the loading dock and the ballroom, and "think[s] [employees] were comirig in and out of the loading dock as well" (Ex. E at 27-28). It was during this delivery process that an approximately, five-foot-tall, brown-painted helium tank fell over. Silver did not previously notice the tank nor does .she know what caused the tank to fall over. When Silver saw the tank falling towards her, she reflexively put her hands out to stop it, but her hand was caught between the helium tank and the loading dock .floor, causing her injury.
Testimony of Plaintiffs Witness
Celestin's testimony aligns with Silver's account of the incident. She testified that the centerpieces were being brought in two at a time, and that they were "early into [the delivery]" when the incident occurred (Ex. F at 23,27). She testified that she "didn't recall seeing anyone out [on the loading dock], but there were...people around[,] and "[employees] may have been, yes. Yeah, (sic) [on the loading dock]" (id. at 25), Celestin had not noticed the tank until it fell over. She saw the tank fall only "peripherally" as she "was standing on the loading dock and [Silver] was on the ground, pretty much in front of me" (id. at 33). Celestin did not make contact with the tank before it fell, either with her body or any other object.
Testimony of Defendant's Witness
Porco is a manager at Villa Borghese. Maintenance and cleaning of the property is performed in-house as a "joint effort" (Ex. G at 10). The loading dock, on which such things as "beer bottles...empty kegs...laundry bins...tables [and] some furniture is stored," is used frequently, if not daily, by both employees and "outside parties or contractors ...to make deliveries" (id. at 10-11). The loading dock is cleaned out "on a daily basis," and steps are taken to ensure a clear path on same (id. At 11). No one person is responsible for cleaning/clearing the loading dock, and no records are kept of inspections or cleanings. Persons making deliveries are typically directed to use the loading dock; Porco did not know if other vendors used the loading dock on the day of the incident. Helium tanks are not typically stored on the loading dock. The helium tank at issue "was from a prior event that (sic) brought it in" (id. at 12). Porco did not know how long prior to plaintiffs injury the helium tank was on the loading dock but stated that it had been there more than a day. Porco was "not sure" if the tank, which was "stored in the corner[,]" had been secured in any way, and "[didn't] believe it was" (id. at 22).
On the date of the incident, there were approximately five employees on site, one of whom notified Porco that plaintiff had been injured on the loading dock. Porco ran outside, heard Silver screaming and directed one of his employees to call 911. The helium tank was on the floor of the loading dock with the top of the tank closest to the edge of the loading dock. He observed Celestin on the loading dock holding a box containing approximately four or five centerpieces. To his knowledge, only one trip had been made to bring centerpieces into the ballroom.
Motion for Summary Judgment
In support of its motion for summary j udgment, defendant argues that a helium tank is not, in and of itself, a dangerous condition; and that a helium tank does not just fall oyer on its own. Defendant further argues that in the absence of anyone other than Silver and Celestin on the loading dock at the time of the incident, that the helium tank must have been knocked over by either Silver,. Celestin, or both; and that plaintiff or Celestin is therefore the cause of plaintiff s injuries. Additionally, defendant argues that a five-foot tall helium tank is readily observable by a proper use of the senses, which defendant argues plaintiff failed to do. Finally, defendant . argues that contrary to plaintiffs claim that the surface of the loading dock was not level, there is no proof to support that assertion. Defendant argues that the facts do not support a finding of negligence against it and it is therefore entitled to summary judgment and dismissal of the complaint.
The Court has fully considered the submissions of the parties.
Discussion
Summary judgment is a drastic remedy and is appropriate only when there is a clear demonstration of the absence of any triable issue of fact (see Piccirillo v, Piccirillo, 156 A.D.2d 748 [2nd Dept., 1989], citing Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). The function of the Court on such a motion is issue finding, and not issue determination (see Sillman v. Twentieth Century-Fox Film Corp,, 3 N.Y.2d 395 [1957]). The Court is not to engage in the weighing of evidence; rather, the Court's function is to determine whether "by no rational process could the trier of facts find for the non-moving party" (Jastrzebski v. N. Shore Sch Dist., 232 A.D.2d 677, 678 [2nd Dept., 1996]).
The Court is obliged to draw all reasonable inferences in favor of the non-moving party (see Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546 [2nd Dept, 1995]). Where there is any doubt about the existence of a material and triable issue of fact, summary judgment must not be granted (see Anyanwu v. Johnson, 276 A.D.2d 572 [2nd Dept., 2000]). Where facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility, summary judgment must not be granted (see Jastrzebski, supra, 223 A.D.2d at 678).
"A landowner has a duty to maintain his or her premises in a reasonably safe manner" (Jaklitsch v. Kelly, 176 A.D.3d 792,792 [2nd Dept., 2019]). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (id. [cit. om.]). "However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous" (Nannariello v. Kohl's Dept. Stores, Inc., 161 A.D.3d 10'89,1090 [2nd Dept., 2018][cit. om.]).
Here, defendant does not contend that it did not create the alleged dangerous condition of the unsecured helium tank, or that it lacked actual or constructive notice of same; but instead . argues that the condition was open and obvious and not inherently dangerous as a matter of law. To support the theory that a helium tank is not in and of itself a dangerous object, defendant cites to Acevedo v. United Water Cooler Service Co., 156 A.D.2d 617 [2nd Dept., 1989], where the Court ruled that "[a] glass bottle is not an inherently dangerous object, and absent proof that it is defective, a retailer may not be held liable where, through the fault of the user, it makes contact with a hard surface and breaks, thereby causing injuries." The holding in that case speaks to a glass bottle as being "not inherently dangerous;" it does not address the potential for hazards presented by an approximately five-foot tall metal cylinder used to store compressed gas. A glass bottle containing water is not equivalent to a five-foot-tall helium tank.
The instant action is more akin to Medina-Castro v. McKinney Welding Supply Co., 85 A.D.3d 743 [2nd Dept., 2011]. In that case, the Second Department affirmed the grant of summary judgment to the plaintiff oh the issue of liability where the defendant delivery company left a tank of gas, weighing approximately 80 to 100 pounds, outside of plaintiffs basement door. The tank was on an uneven surface and was on an unattended hand truck which was missing a chain normally used to secure the tank (id. at 743-744). When plaintiff opened the basement door, the unsecured tank fell and injured the plaintiff (id.).
The Court finds that defendant has failed to establish that the unsecured helium tank was not inherently dangerous as a matter of law; and is therefore not entitled to summary judgment.
Moreover, contrary to defendant's assertions, whether the helium tank was open and obvious would not preclude a finding of liability against it, but rather would present a triable issue of fact with respect to plaintiffs comparative fault (see Cupo v. Karfunkel, 1 A.D.3d 48, 52 . [2nd Dept, 2003]; Lopez-Calderone v. Lang-Viscogliosi, 127 A.D.3d 1143 [2nd Dept., 2015]).
As the defendant has failed to establish its right to summary judgment, the Court need not consider whether the papers submitted by the plaintiff in opposition are sufficient to raise a triable issue of fact (see Catalan v.G& H Processing, Inc., 71 A.D.3d 1071,1072 [2nd Dept., 2010]).
Conclusion
Based upon the foregoing, it is hereby
ORDERED that defendant's motion is denied; and it is further
ORDERED that all parties shall appear for a virtual pretrial conference on November 20, 2020 at 9:55 a.m.
A link shall be provided to all counsel.
The foregoing constitutes the Decision and Order of this Court,