HUTSON v. 38 (2024)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about July 13, 2023, which insofar as appealed from, denied defendant Regis High School's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

In this personal injury action, plaintiff Barbara Hutson was walking by a pile of Christmas trees discarded on the sidewalk behind Regis High School, located at 55 East 85 Street when she tripped and fell on branches protruding from the trees.  Supreme Court properly denied Regis's motion for summary judgment, finding triable issues of fact as to whether the pile of Christmas trees was an open and obvious condition and not inherently dangerous (see Stolzman v. City of New York, 146 A.D.3d 531, 531, 43 N.Y.S.3d 903 [1st Dept. 2017];  Nunez v. Wah Kok Realty Corp., 110 A.D.3d 560, 560, 973 N.Y.S.2d 558 [1st Dept. 2013]).  Plaintiff testified that the trees strewn across the sidewalk left a pathway of only about 12 inches wide.  The photographs and video evidence raise an issue of fact as to whether jutting branches from the trees were not clearly visible, and whether the branches, upon which plaintiff fell, might be overlooked by a pedestrian under the circumstances allegedly confronted by plaintiff, including pedestrians approaching from the opposite direction and that the branches were almost the same color as the sidewalk (see Juoniene v. H.R.H. Constr. Corp., 6 A.D.3d 199, 200–201, 774 N.Y.S.2d 525 [1st Dept. 2004]).  The question of whether a condition is open and obvious, and not inherently dangerous is generally a jury question and a court should only determine that a risk was open and obvious, and not inherently dangerous as a matter of law when the established facts compel such a conclusion (see Castro v. Village Super Mkt. of NY, LLC, 211 A.D.3d 506, 181 N.Y.S.3d 27 [1st Dept. 2022];  Nunez, 110 A.D.3d at 500, 973 N.Y.S.2d 558).  Whether plaintiff exercised adequate care in negotiating the pathway on the sidewalk presents an issue of comparative fault, and there remains an issue of fact as to whether Regis breached its broader duty to maintain its sidewalk in a reasonably safe condition (see Garrido v. City of New York, 9 A.D.3d 267, 268, 779 N.Y.S.2d 208 [1st Dept. 2004]).

The motion court properly considered plaintiff's affidavit submitted in opposition to its summary judgment motion.  Her averment that the photographs and the surveillance video established that her “foot snagged on one of the protruding skinny branches causing [her] to fall” merely amplified, and did not contradict, her deposition testimony that she tripped over “a branch that was sticking out” (see Castro v. New York City Tr. Auth., 52 A.D.3d 213, 214, 859 N.Y.S.2d 417 [1st Dept. 2008]).