| Jankite v Scoresby Hose Co. |
| 2014 NY Slip Op 05390 [119 AD3d 1189] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Barbara Jankite, Individually and as Parent andGuardian of Hannah Jankite, an Infant, Respondent, v Scoresby Hose Company,Appellant. (And a Third Party Action.) |
Siler & Ingber, LLP, Mineola (Jeffrey B. Siler of counsel), for appellant.
Basch & Keegan, LLP, Kingston (John A. DeGasperis of counsel), forrespondent.
Peters, P.J. Appeal from an order of the Supreme Court (Melkonian, J.), enteredSeptember 19, 2013 in Ulster County, which denied defendant's motion for summaryjudgment dismissing the complaint.
On the evening of July 25, 2009, plaintiff attended an event at defendant's firehousewith her husband (hereinafter the father) and their five-year-old daughter, Hannah. Thefather was seated at the picnic table on the firehouse porch playing a "game" withHannah, who was standing near him, in which he would nudge her and she would nudgehim back. At one point, Hannah turned to take a step and fell off of the firehouse porch.Plaintiff thereafter commenced this action to recover for the injuries sustained by Hannahas a result of the fall, alleging that defendant was negligent in, among other things,failing to warn of a dangerous condition and neglecting to maintain the premises in areasonably safe condition by not providing a railing for the porch and placing a picnictable dangerously close to the porch's edge. Following joinder of issue and discovery,defendant moved for summary judgment dismissing the complaint. Supreme Courtdenied the motion, and this appeal by defendant ensued.
"Defendant, as the movant for summary judgment, bore the initial burden of [*2]establishing, as a matter of law, that [it] maintained theproperty in a reasonably safe condition and did not have actual or constructive notice ofthe allegedly dangerous condition" (Dillenbeck v Shovelton, 114 AD3d 1125, 1126 [2014][internal quotation marks, brackets and citation omitted]; see Hockenberry v Mehlman,93 AD3d 915, 916 [2012]; Ennis-Short v Ostapeck, 68 AD3d 1399, 1400 [2009]).Here, defendant submitted an affidavit from the village code enforcement officer andbuilding inspector stating that, as the porch was less than 29 inches off the ground, nohandrail was required for state and local building code compliance. This officer furtheraverred that no building code provisions governed the placement of a table on a porchsuch as the one at issue here. Defendant's then president, Michael Moschetta, testifiedthat the firehouse is regularly open to children and that, despite the absence of a handrail,no one had ever fallen off of the porch. He also stated that the brick border of theporch—demarcating the porch's edge—was painted red, and it is undisputedthat the porch was fully lit at the time of Hannah's accident. Plaintiff admitted to havingvisited defendant's firehouse more than 10 times prior to Hannah's fall, apparentlywithout incident. Further, according to Moschetta, plaintiff spoke with him during theweek following the incident and reported that the father "felt really bad" that he pushedHannah and she fell off of the porch. This evidence was sufficient to establish thatdefendant maintained the porch in a reasonably safe condition and to shift the burden toplaintiff to demonstrate the existence of a material issue of fact requiring a trial (seeDillenbeck v Shovelton, 114 AD3d at 1126; Signorelli v Troy Lodge #141 Benevolent & Protective Orderof Elks, 108 AD3d 831, 832 [2013]; Timmins v Benjamin, 77 AD3d 1254, 1254-1255[2010]).
While plaintiff was never asked in her examination before trial whether the bricksdemarcating the edge of the porch were painted red, in her affidavit in opposition todefendant's motion she affirmatively stated that no red line was painted around the porchperimeter on the day of Hannah's fall. Furthermore, according to plaintiff, the picnictable was located just 6 to 12 inches from the edge of the porch. Plaintiff explained thatwhen the father "pushed [Hannah] one last time she turned and took a step, and. . . fell off the porch" because there was no railing. While the father couldnot recall whether he or Hannah had "nudged" the other last, he was certain that Hannahthen turned around to run and fell off of the porch. Viewed in the light most favorable toplaintiff (see Baird vGormley, 116 AD3d 1121, 1123 [2014]; Stevenson v Saratoga Performing Arts Ctr., Inc., 115 AD3d1086, 1087 [2014]), this evidence is sufficient to raise issues of fact as to whetherdefendant created a dangerous condition by negligently placing the picnic table close tothe porch's edge and failing to demarcate or guard this ledge (see Jones v Shamrock of Ithaca,Inc., 78 AD3d 1299, 1300 [2010]; Timmins v Benjamin, 77 AD3d at1256; Ennis-Short v Ostapeck, 68 AD3d at 1400). Factual issues also exist as towhether defendant's negligence, if any, was the proximate cause of Hannah's injury, asthis is not a case " 'where only one conclusion may be drawn from the establishedfacts' " (Kriz v Schum, 75 NY2d 25, 34 [1989], quoting Derdiarian vFelix Contr. Corp., 51 NY2d 308, 315 [1980]; see Bush v Mechanicville Warehouse Corp., 69 AD3d1207, 1209 [2010]; Antoniav Srour, 69 AD3d 666, 666-667 [2010]; Scala v Scala, 31 AD3d 423, 425 [2006]).
Defendant also claims that it had no duty to warn of the alleged dangerous conditioncreated by the unguarded drop-off at the porch's edge, as any such hazard was open andobvious as a matter of law. "It is axiomatic that a landowner has no duty to warn of anopen and obvious condition that is readily observable by the normal use of one's senses,and this postulate applies to adults and minors alike" (Leckanby v CohoesCommunity Ctr., 299 AD2d 625, 625 [2002] [citations omitted]; see Soich vFarone, 307 AD2d 658, 659 [2003]; see e.g. Bazan v Rite Aid of N.Y., 279AD2d 762, 762-763 [2001], lv denied 96 NY2d 709 [2001]). However, alandowner [*3]has a duty to warn against even known orobvious dangers where he or she "has reason to expect or anticipate that a person'sattention may be distracted, so that he or she will not discover what is obvious, or willforget what he or she has discovered, or fail to protect himself or herself against it"(Jones v Shamrock of Ithaca, Inc., 78 AD3d at 1300 [internal quotation marks,brackets and citation omitted]; see Parslow v Leake, 117 AD3d 55, 62-63 [2014];Spannagel v State of New York, 298 AD2d 687, 689 [2002]). Here, uponconsidering all of the surrounding circumstances, including the nature and layout of theevent being hosted by defendant (see Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761, 761[2011]; Johnson v Village of Saranac Lake, 279 AD2d 784, 785 [2001]), we findthat triable issues of fact exist as to whether the drop-off constituted an open and obvioushazard such that defendant was relieved of its duty to warn (see Femenella v PellegriniVineyards, LLC, 16 AD3d 546, 547 [2005]; Johnson v Village of SaranacLake, 279 AD2d at 785; compare Losciuto v City Univ. of N.Y., 80 AD3d 576,576-577 [2011]).
Finally, contrary to defendant's contention, the doctrine of assumption of risk isinapplicable to the injury-producing activity at issue here (see Custodi v Town ofAmherst, 20 NY3d 83, 89 [2012]; Trupia v Lake George Cent. School Dist., 14 NY3d 392,396 [2010]).
Garry, Rose, Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed, withcosts.