| Carson v Baldwin Union Free School Dist. |
| 2010 NY Slip Op 07713 [77 AD3d 878] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Sinkia Carson, an Infant, by his Mother and Natural Guardian,Patricia Carson, Respondent, v Baldwin Union Free School District, Appellant, et al.,Defendant. |
—[*1] Falk & Klebanoff, P.C., West Hempstead, N.Y. (Victor A. Carr of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Baldwin Union FreeSchool District appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (Sher, J.), entered April 2, 2010, as denied that branch of its motion which wasfor summary judgment dismissing the first cause of action insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The complaint alleges that on September 27, 2007, the infant plaintiff was exiting thegymnasium of his high school at the direction of his gym teacher. As he approached the exitdoors, he slipped or tripped on a volleyball net that was lying across the floor in front of the exitdoors, and was injured. The infant plaintiff, by his mother, commenced this action againstBaldwin Union Free School District (hereinafter the District) and Baldwin Senior High School.The complaint contained two causes of action. The first alleged that the defendants wereresponsible for the presence of a hazardous condition. The second alleged negligent supervision.The District moved for summary judgment dismissing the complaint insofar as asserted againstit. The Supreme Court granted that branch of the District's motion which was for summaryjudgment dismissing the second cause of action, sounding in negligent supervision, and theplaintiff did not appeal or cross-appeal from this part of the order. The Supreme Court deniedthat branch of the District's motion which was for summary judgment dismissing the first causeof action, which was based on the defendants' alleged negligence in creating or allowing adangerous condition to exist. We affirm the order insofar as appealed from.
"A landowner 'must act as a reasonable [person] in maintaining his [or her] property in areasonably safe condition in view of all the circumstances, including the likelihood of injury toothers, the seriousness of the injury, and the burden of avoiding the risk' " (Cupo v Karfunkel, 1 AD3d 48, 51[2003], quoting Peralta v Henriquez, 100 NY2d 139, 144 [2003]; see Basso vMiller, 40 NY2d 233, 241 [1976]). The owner, however, has no duty to protect against anopen and obvious condition provided that, as a matter of law, the condition is not inherentlydangerous (see Cupo v Karfunkel, 1 AD3d at 52; Salomon v Prainito, 52 AD3d 803, 805 [2008]; see also Kaufmann v Lerner N.Y., Inc.,41 AD3d 660, 661 [2007]).
Here, the fact that the alleged condition was open and obvious was not disputed. However,the District failed to establish, prima facie, that the condition consisting of the placement of thevolleyball netting across the floor in front of the gymnasium doors was also not inherentlydangerous as a matter of law (seeCooper v American Carpet & Restoration Servs., Inc., 69 AD3d 552 [2010]; Salomon v Prainito, 52 AD3d 803[2008]; see generally Cupo vKarfunkel, 1 AD3d 48 [2003]). Accordingly, the Supreme Court properly denied thatbranch of the District's motion which was for summary judgment dismissing the first cause ofaction insofar as asserted against it.
In light of our determination, we need not reach the plaintiff's remaining contention. Mastro,J.P., Covello, Dickerson and Roman, JJ., concur. [Prior Case History: 2010 NY Slip Op30806(U).]