| Rivas-Chirino v Wildlife Conservation Socy. |
| 2009 NY Slip Op 05758 [64 AD3d 556] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Maria Jilma Rivas-Chirino, Respondent, v WildlifeConservation Society, Appellant. |
—[*1] Gorayeb & Associates, P.C., New York, N.Y. (Mark H. Edwards and John Shaw of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Solomon, J.), dated June 12, 2008, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured while visiting the baboon exhibit at the Prospect ParkZoo, which was owned and operated by the defendant. The viewing area of that exhibit consistedof concrete bleacher seating, constructed unevenly to simulate a jungle setting, located betweentwo wooden staircases. When the plaintiff attempted to leave, she chose to descend by steppingdown the bleacher seats, rather than either staircase, because the closest staircase "was just fullof people." She fell from the first step of the concrete seating area because of what she alleged tobe a cracked or missing a portion of the concrete bleacher seating. The Supreme Court deniedthe defendant's motion for summary judgment dismissing the complaint, finding that triableissues of fact exist. We reverse.
A landowner has a duty to maintain its premises in a reasonably safe manner (see Bassov Miller, 40 NY2d 233 [1976]). However, a landowner has no duty to protect or warnagainst an open and obvious condition which, as a matter of law, is not inherently dangerous (see Espinoza v Hemar Supermarket,Inc., 43 AD3d 855 [2007]; Sclafani v Washington Mut., 36 AD3d 682 [2007]; Fernandez v Edlund, 31 AD3d601, 602 [2006]; Orlando v AudaxConstr. Corp., 14 AD3d 500, 501 [2005]; Jang Hee Lee v Sung Whun Oh, 3 AD3d 473 [2004]; Rovegnov Church of Assumption, 268 AD2d 576 [2000]), or where the allegedly dangerouscondition can be recognized simply as a matter of common sense (see Smith v Stark, 67NY2d 693 [1986]; Bazerman v Gardall Safe Corp., 203 AD2d 56, 57 [1994]).
Here, the defendant submitted evidence sufficient to establish its entitlement to judgment asa matter of law by demonstrating that the condition complained of in the concrete bleacherseating area of the baboon exhibit was open and obvious, its nature was readily observable tothose [*2]employing the reasonable use of their senses, and it didnot present an undue risk of harm (seeGagliardi v Walmart Stores, Inc., 52 AD3d 777 [2008]; Espinoza v HemarSupermarket, Inc., 43 AD3d at 855; Kaufmann v Lerner N.Y., Inc., 41 AD3d 660, 661 [2007]; Errett v Great Neck Park Dist., 40AD3d 1029 [2007]). Accordingly, the defendant had no duty to warn the plaintiff of the riskof her behavior (see Negin v New YorkAquarium, 4 AD3d 511 [2004]), nor was her misuse of the seating area as stepsforeseeable (see Jackson v Supermarkets Gen. Corp., 214 AD2d 650, 651 [1995];Bazerman v Gardall Safe Corp., 203 AD2d at 57; see also Farkas v Cedarhurst NaturalFood Shoppe, 41 NY2d 1041 [1977]).
The affidavit submitted by the plaintiff's expert in opposition to the defendant's motion wasspeculative and conclusory. The expert's conclusions were supported by neither empirical datanor any relevant industry standard and did not allege the violation of any applicable statute orregulation. Further, the expert's affidavit failed to explain how he had reached the conclusionsthat he did. Accordingly, the plaintiff failed to raise a triable issue of fact (see Delgado v County of Suffolk, 40AD3d 575, 576 [2007]; Rochford vCity of Yonkers, 12 AD3d 433, 433-434 [2004]). Spolzino, J.P., Santucci, Belen andLott, JJ., concur.