| Atehortua v Lewin |
| 2011 NY Slip Op 09252 [90 AD3d 794] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Kaylee Atehortua, an Infant, by Her Mother and Natural Guardian,Danielle Atehortua, et al., Respondents, v Jamie Lewin et al.,Appellants. |
—[*1] McCarthy & Kelly, LLP, New York, N.Y. (William P. Kelly of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), datedFebruary 3, 2011, as denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion for summary judgment dismissing the complaint is granted.
While landowners have a duty to maintain their property in a reasonably safe condition(see Basso v Miller, 40 NY2d 233, 241 [1976]; Mathew v A.J. Richard & Sons, 84 AD3d 1038, 1039 [2011]), alandowner has no duty to protect or warn against an open and obvious condition, which as amatter of law is not inherently dangerous (see Mathew v A.J. Richard & Sons, 84 AD3dat 1039; Katz v Westchester CountyHealthcare Corp., 82 AD3d 712, 713 [2011]; Tyz v First St. Holding Co., Inc., 78 AD3d 818, 819 [2010]; Weiss v Half Hollow Hills Cent. SchoolDist., 70 AD3d 932, 933 [2010]; Bretts v Lincoln Plaza Assoc., Inc., 67 AD3d 943, 944 [2009]; Neville v 187 E. Main St., LLC, 33AD3d 682, 683 [2006]; Cupo vKarfunkel, 1 AD3d 48, 52 [2003]). "Whether a hazard is open and obvious cannot bedivorced from the surrounding circumstances" (Katz v Westchester County HealthcareCorp., 82 AD3d at 713). A condition that is ordinarily apparent to a person makingreasonable use of his or her senses may be rendered a trap for the unwary where the condition isobscured or the plaintiff is distracted (id.; see Stoppeli v Yacenda, 78 AD3d 815, 816 [2010]; Villano v Strathmore Terrace HomeownersAssn., Inc., 76 AD3d 1061, 1062 [2010]; Shah v Mercy Med. Ctr., 71 AD3d 1120 [2010]; Mazzarelli v 54 Plus Realty Corp., 54AD3d 1008, 1009 [2008]).
The infant plaintiff was injured when she tripped and fell over a "Slip and Slide" toy in thedefendants' backyard. The evidence submitted by the defendants in support of their motion forsummary judgment dismissing the complaint, which included video surveillance footage of theaccident, established their prima facie entitlement to judgment as a matter of law dismissing thecause of action to recover damages for the defendants' negligent maintenance of their property.The evidence demonstrated that the Slip and Slide was an open and obvious condition which wasnot inherently dangerous (see Mathew v A.J. Richard & Sons, 84 AD3d at 1039;Flaim v Hex Food, Inc., [*2]79 AD3d 797, 798 [2010];Tyz v First St. Holding Co., Inc., 78 AD3d at 818; Weiss v Half Hollow Hills Cent.School Dist., 70 AD3d at 933; Sternv Costco Wholesale, 63 AD3d 1139, 1140 [2009]; Bernth v King Kullen Grocery Co., Inc., 36 AD3d 844, 845 [2007];Pirie v Krasinski, 18 AD3d848, 849 [2005]). The video footage also supported the defendants' assertion that there wasmore than enough space between the nearby kiddie pool and the end of the Slip and Slide for theinfant plaintiff to have easily avoided walking over any part of the Slip and Slide to reach thedefendants' house. In opposition, the affidavits of the infant plaintiff and her brother failed toraise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Thus, the Supreme Court should have granted that branch of the defendants' motionwhich was for summary judgment dismissing the cause of action based on negligent maintenanceof the property.
The Supreme Court should have also granted that branch of the defendants' motion whichwas for summary judgment dismissing the cause of action to recover damages for negligentsupervision. A person to whom the custody and care of a child is entrusted by a parent "isrequired to use reasonable care to protect the infant over whom he or she has assumed temporarycustody or control. Such a person may be liable for any injury sustained by the infant which wasproximately caused by his or her [own] negligence. While a person caring for entrusted childrenis not cast in the role of an insurer, such an individual is obliged to provide adequate supervisionand may be held liable for foreseeable injuries proximately resulting from the negligent failure todo so" (Appell v Mandel, 296 AD2d 514 [2002]; see Brennan v Sinski, 31 AD3d 1108, 1109 [2006]; Goldstein vWelter, 303 AD2d 551 [2003]; Singh v Persaud, 269 AD2d 381, 382 [2000];Fernandez v Stepping Stone Day School, 291 AD2d 530 [2002]; see generally Mirandv City of New York, 84 NY2d 44, 49 [1994]; Zalak v Carroll, 15 NY2d 753, 754[1965]; Nyhus v Valentino, 83AD3d 802, 804 [2011]). However, when an accident occurs in so short a span of time thateven the most intense supervision could not have prevented it, " 'any lack of supervision is notthe proximate cause of the injury and summary judgment in favor of the . . .defendants is warranted' " (Nash v PortWash. Union Free School Dist., 83 AD3d 136, 151 [2011], quoting Luciano v Our Lady of SorrowsSchool, 79 AD3d 705, 705 [2010]; see Tanenbaum v Minnesauke Elementary School, 73 AD3d 743,744 [2010]; Mayer v Mahopac Cent.School Dist., 29 AD3d 653, 654 [2006]; Convey v City of Rye School Dist., 271AD2d 154, 160 [2000]).
Here, the video footage showed that the accident occurred in so short a span of time that eventhe most intense supervision could not have prevented it, and any lack of supervision was not theproximate cause of the infant plaintiff's injuries. In opposition, the plaintiffs failed to raise atriable issue of fact. Florio, J.P., Balkin, Belen and Chambers, JJ., concur.