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Stern v. Ofori-Okai

Appellate Division of the Supreme Court of New York, Third Department
Jan 15, 1998
246 A.D.2d 807 (N.Y. App. Div. 1998)

Summary

affirming denial of summary judgment even though icy and uneven surface of driveway was apparent and defendants had warned plaintiff of slipperiness

Summary of this case from Michalski v. the Home Depot

Opinion

January 15, 1998

Appeal from the Supreme Court (Graffeo, J.).


Plaintiff Samuel Stern (hereinafter plaintiff) and his wife, derivatively, commenced this action for injuries allegedly sustained when plaintiff slipped and fell on defendants' driveway. Plaintiffs allege, inter alia, that defendants were negligent in the manner of snow removal by creating an uneven and slippery surface, ruts, depressions and hidden areas of ice accumulation. The accident occurred on February 20, 1993 while plaintiff, having just sold an automobile insurance policy to defendants, was photographing the covered vehicle.

Following some discovery defendants moved for summary judgment dismissing the complaint, arguing that because the condition of the driveway was readily apparent, plaintiffs failed to establish a prima facie case. Supreme Court denied defendants' motion, finding questions of fact with respect to whether defendants used reasonable care in the maintenance of their driveway and whether plaintiff was comparatively negligent. Defendants appeal.

"Analysis of a case involving a slip and fall in winter conditions starts with the well-settled principle that a party who possesses or controls real property is under a duty to exercise reasonable care under the circumstances" ( Marcellus v. Littauer Hosp. Assn., 145 A.D.2d 680, 681 [citation omitted]). A necessary precondition to the imposition of liability is a showing that the defendant had actual or constructive notice of the hazardous condition ( see, Boyko v. Limowski, 223 A.D.2d 962, 963-964; Byrd v. Church of Christ Uniting, 192 A.D.2d 967, 969). In the instant case, defendants do not allege lack of notice; rather, they contend that the readily observable nature of the condition of the driveway relieved them of liability. In slip and fall cases of this nature, however, the plaintiff is often aware of the presence of a slippery surface caused by snow or ice ( see, e.g., Boyko v. Limowski, supra). While perhaps relevant to the issues of notice ( see, id.; Byrd v. Church of Christ Uniting, supra, at 969) and comparative negligence ( see, Montross v. State of New York, 219 A.D.2d 845, 845-846), the obviousness of this type of hazard does not ordinarily preclude a finding of liability on the part of the property owner ( cf., id.).

Here, the photographs taken by plaintiff minutes before he fell depict the uneven areas of snow and ice on the driveway surface. According to plaintiff, defendants warned him of the slippery condition while he was in the process of traversing the area where he fell. Viewed in the light most favorable to plaintiffs ( see, Russell v. Hepburn Hosp., 154 A.D.2d 796, 797), the record presents questions of fact as to whether defendants exercised reasonable care in maintaining their driveway given the circumstances, as well as whether plaintiffs own negligence caused or contributed to his fall ( see, Montross v. State of New York, supra).

And, although we find defendants' arguments unconvincing, their appeal is not, as plaintiffs suggest, so frivolous as to justify sanctions.

Mikoll, J.P., Peters, Spain and Carpinello, JJ., concur.

Ordered that the order is affirmed, with costs.


Summaries of

Stern v. Ofori-Okai

Appellate Division of the Supreme Court of New York, Third Department
Jan 15, 1998
246 A.D.2d 807 (N.Y. App. Div. 1998)

affirming denial of summary judgment even though icy and uneven surface of driveway was apparent and defendants had warned plaintiff of slipperiness

Summary of this case from Michalski v. the Home Depot

In Stern v. Ofori–Okai, 246 A.D.2d 807, 808 (3rd Dept.1998), the Court held that even awareness of a hazardous condition does not absolve a landowner from liability in maintaining its premises, but is relevant only on the issue of comparative negligence.

Summary of this case from Barber v. Cornell Univ. Coop. Extension of Orange Cnty.

In Stern v. Ofori-Okai, 246 AD2d 807, 808 (3rd Dept. 1998), the Court held that even awareness of a hazardous condition does not absolve a landowner from liability in maintaining its premises, but is relevant only on the issue of comparative negligence.

Summary of this case from Olmoz v. Wal-Mart Stores, Inc.
Case details for

Stern v. Ofori-Okai

Case Details

Full title:SAMUEL STERN et al., Respondents, v. GABRIEL OFORI-OKAI et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 15, 1998

Citations

246 A.D.2d 807 (N.Y. App. Div. 1998)
668 N.Y.S.2d 68

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