| Jones v Shamrock of Ithaca, Inc. |
| 2010 NY Slip Op 07855 [78 AD3d 1299] |
| November 4, 2010 |
| Appellate Division, Third Department |
| Patricia A. Jones et al., Respondents, v Shamrock of Ithaca, Inc., DoingBusiness as Ithaca Ale House Grill and Taproom, Appellant. |
—[*1] Williamson, Clune & Stevens, Ithaca (Allan C. VanDeMark of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Sherman, J.), entered January 28, 2010 inTompkins County, which denied defendant's motion for summary judgment dismissing the complaint.
Plaintiff Patricia A. Jones (hereinafter plaintiff) went to dinner at a restaurant operated bydefendant. She was seated on a platform, used as a stage when bands performed and as dining spaceat other times, that was approximately six inches higher than the rest of the floor. Plaintiff stepped ontothe platform and sat near its edge without incident, but she forgot the edge was there as she waspreparing to leave, and stepped backward off of it and fell. Her injuries prompted this negligence actionand, following joinder of issue, defendant moved for summary judgment dismissing the complaint.Supreme Court denied the motion and defendant now appeals.
Defendant owed a duty not only to maintain the restaurant in a reasonably safe condition, but alsoto warn of a dangerous condition of which it was or should have been aware (see Bilinski v Bank of Richmondville, 12AD3d 911, 911 [2004]; Soich v Farone, 307 AD2d [*2]658, 659 [2003]). Plaintiff's awareness does not obviate defendant's dutyto maintain the premises in a reasonably safe condition or "to warn against known or obvious dangers. . . where the [defendant] has reason to expect or anticipate that a person's 'attention maybe distracted, so that he [or she] will not discover what is obvious, or will forget what he [or she] hasdiscovered, or fail to protect himself [or herself] against it' " (Spannagel v State of New York,298 AD2d 687, 689 [2002], quoting Restatement [Second] of Torts § 343A [1], Commentf). Thus, as relevant here, summary judgment is only appropriate where it is shown as a matterof law that the drop-off did not constitute a dangerous condition (see Anton v Correctional Med. Servs., Inc., 74 AD3d 1682, 1683[2010]; Bilinski v Bank of Richmondville, 12 AD3d at 911-912).
In that regard, the table at which plaintiff sat was placed six inches from the platform's edge, anddefendant's owner admitted that patrons were rarely seated as close to the edge of the platform asplaintiff. Indeed, the owner had sought to place warning tape along the edge of the platform, but wasunable to make the tape adhere. He further testified that employees would warn people to "watch yourstep" in the area of the platform. Moreover, plaintiffs submitted the affidavit of an engineer who statedthat applicable safety regulations required a handrail or warning tape to be placed along the edge of theplatform, and further opined that the construction of the platform deviated from accepted engineeringstandards. As questions of fact exist as to whether the drop-off constituted a dangerous condition,Supreme Court properly denied defendant's motion for summary judgment (see Page v State of New York, 72 AD3d1456, 1458 [2010]; Monge v Home Depot, 307 AD2d 501, 502 [2003]; compare Broodie v Gibco Enters., Ltd., 67AD3d 418, 418 [2009]).
Mercure, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.