| Hayes v Texas Roadhouse Holdings, LLC |
| 2012 NY Slip Op 07820 [100 AD3d 1532] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| Jan M. Hayes, Respondent, v Texas Roadhouse Holdings, LLC, etal., Appellants. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.),entered January 31, 2012 in a personal injury action. The order denied defendants' motion forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she tripped and fell over a curb separating a sidewalk and a landscaped area on thepremises of a restaurant owned and maintained by defendant Texas Roadhouse Holdings, LLCand allegedly operated by defendant Texas Roadhouse Management Corp. Plaintiff alleged in hercomplaint that defendants were negligent, inter alia, in installing the curb between a benchoutside the restaurant and the door to that facility, and in failing to warn of a tripping hazard inthe area of the bench. Supreme Court denied defendants' motion for summary judgmentdismissing the complaint, and we affirm.
We note at the outset that "[i]t is beyond dispute that landowners and business proprietorshave a duty to maintain their properties in [a] reasonably safe condition" (Di Ponzio vRiordan, 89 NY2d 578, 582 [1997]). In support of their contention that the curb was in areasonably safe condition at the time of plaintiff's fall and thus that they were not negligent ininstalling the curb at that location, defendants submitted evidence establishing that the curbcomplied with applicable building codes, zoning ordinances, and zoning standards. Evidence of adefendant's compliance with industry standards, however, does not establish as a matter of lawthat such defendant was not negligent (see Baity v General Elec. Co., 86 AD3d 948, 950-951 [2011])."[C]ompliance with customary or industry practices is not dispositive of due care but constitutesonly some evidence thereof" (Miner v Long Is. Light. Co., 40 NY2d 372, 381 [1976]).Likewise, compliance with applicable regulations is not dispositive on the issue of negligence; "'such [*2]compliance does not necessarily preclude a jury fromfinding that the . . . [device governed by the regulations] was part of or contributedto any inherently dangerous condition existing in the area of [plaintiff's] fall' " (Bamrick v Orchard Brooke Living Ctr.,5 AD3d 1031, 1032 [2004]).
The issue before us is thus whether defendants established as a matter of law that the curbwas not inherently dangerous (see Powers v St. Bernadette's R.C. Church, 309 AD2d1219, 1219 [2003]). The determination of such an issue "depends on the peculiar facts andcircumstances of each case and is generally a question of fact for the jury" (Trincere v Countyof Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks omitted]), and we concludethat defendants failed to meet their initial burden on the motion (see Maio v John Andrew, Inc., 85AD3d 741, 742 [2011]; Powers, 309 AD2d at 1219; see generally Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]). Although plaintiff's deposition testimonyestablishes that she did not notice the curb before tripping on it, plaintiff also testified at herdeposition that she did not look for the curb immediately before the accident, and that she wasfollowing two friends into the restaurant at that time. Photographs submitted by defendants insupport of the motion show that the curb was in proximity to a bench on which plaintiff satimmediately before her fall, and that the curb is the same color as the sidewalk where plaintiffwas walking at the time of her accident. Inasmuch as defendants failed to meet their initialburden of establishing that the curb was not inherently dangerous as a matter of law, we need notconsider the sufficiency of plaintiff's opposing papers (see generally Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
We further conclude that defendants failed to establish as a matter of law that the hazardposed by the curb was open and obvious and thus that they had no duty to warn plaintiff of atripping hazard. It is well established that there is no duty to warn of an open and obviousdangerous condition (see Tagle v Jakob, 97 NY2d 165, 169 [2001]), "because 'in suchinstances the condition is a warning in itself' " (Mazurek v Home Depot U.S.A., 303AD2d 960, 962 [2003]). "Whether a hazard is open and obvious cannot be divorced from thesurrounding circumstances . . . A condition that is ordinarily apparent to a personmaking reasonable use of his or her senses may be rendered a trap for the unwary where thecondition is obscured or the plaintiff is distracted" (Calandrino v Town of Babylon, 95 AD3d 1054, 1056 [2012][internal quotation marks omitted]; seeGordon v Pitney Bowes Mgt. Servs., Inc., 94 AD3d 813, 814-815 [2012]; Katz v Westchester County HealthcareCorp., 82 AD3d 712, 713 [2011]; see also Gustin v Association of Camps FarthestOut, 267 AD2d 1001, 1002 [1999]). "Some visible hazards, because of their nature orlocation, are likely to be overlooked . . . , and the facts here simply do not warrantconcluding as a matter of law that the [curb] was so obvious that it would necessarily be noticedby any careful observer, so as to make any warning superfluous" (Juoniene v H.R.H. Constr. Corp., 6AD3d 199, 200-201 [2004]; seeSurujnaraine v Valley Stream Cent. High School Dist., 88 AD3d 866, 866-867 [2011];Cassone v State of New York, 85AD3d 837, 838-839 [2011]; Shah vMercy Med. Ctr., 71 AD3d 1120, 1120 [2010]; Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 72[2004]).
Contrary to defendants' further contention, the court properly concluded that they are notentitled to summary judgment on the ground that they lacked notice of the alleged dangerouscondition on the restaurant premises. Actual or constructive notice of a defective condition is notrequired where defendants created the dangerous condition (see Cook v Rezende, 32NY2d 596, 599 [1973]; Viele vVyverberg, 83 AD3d 1428, 1429 [2011]) and, here, there is no dispute that defendantscreated the curb at issue. Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.