RICE v. LLC (2008)

Plaintiff commenced this action seeking damages for injuries she sustained while attending a team building event organized by her former employer on property owned by Long Acre Farms, LLC (defendant).   Plaintiff injured her tailbone when she landed in a hole at the bottom of a slide while participating in the event on defendant's property, and she alleged that defendant was negligent in failing to fill in the hole or otherwise to provide a soft landing area for those using the slide.   We previously affirmed an order granting the motions of defendant University of Rochester Medical Center, plaintiff's former employer, to dismiss the complaint and “amended” complaint against it for failure to state a cause of action, and granting the motion of defendant to dismiss the claim for punitive damages against it (Rice v. University of Rochester Med. Ctr., 46 A.D.3d 1421, 849 N.Y.S.2d 134).

 Defendant thereafter moved for summary judgment dismissing the remainder of the complaint, and plaintiff cross-moved for partial summary judgment on liability.   We conclude that Supreme Court erred in granting defendant's motion but properly denied plaintiff's cross motion, and we therefore modify the order accordingly.   Defendant failed to meet its initial burden of establishing as a matter of law that it maintained the slide in a reasonably safe condition (see Kosicki v. Spring Garden Assn., Inc., 42 A.D.3d 909, 910, 839 N.Y.S.2d 660;  Prosser v. County of Erie, 244 A.D.2d 942, 665 N.Y.S.2d 216;  cf. Sobti v. Lindenhurst School Dist., 35 A.D.3d 439, 825 N.Y.S.2d 251) and, indeed, defendant raised a triable issue of fact with respect thereto by its own submissions in support of the motion (see Vonungern v. Morris Cent. School, 240 A.D.2d 926, 927-928, 658 N.Y.S.2d 760).   Defendant's president acknowledged in an affidavit that, at the bottom of the slide, there was “a worn area” or path approximately four inches deep and four feet long created by persons exiting the slide, and defendant submitted portions of the deposition testimony of plaintiff describing the worn area beneath the slide as “a huge dugout” that “was big enough for my body to fit in.”   We note in addition that defendant submitted no evidence from an expert setting forth that the slide was reasonably safe or that the worn area was not a proximate cause of plaintiff's injuries (cf. Butler v. City of Gloversville, 52 A.D.3d 896, 859 N.Y.S.2d 284).   In addition, based on defendant's own submissions, we agree with plaintiff that defendant failed to establish as a matter of law that the hole at the bottom of the slide was “too trivial to constitute a dangerous or defective condition” (Schaaf v. Pork Chop, Inc., 24 A.D.3d 1277, 1278, 807 N.Y.S.2d 773;  see Powers v. St. Bernadette's R.C. Church, 309 A.D.2d 1219, 765 N.Y.S.2d 102).   The court further erred in granting defendant's motion on the ground that defendant established that the hole at the bottom of the slide “was clearly visible and created no unreasonable risk of harm” to plaintiff.  “The fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition but, rather, bears only on the injured person's comparative fault” (Bax v. Allstate Health Care, Inc., 26 A.D.3d 861, 863, 809 N.Y.S.2d 378;  see Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40).

Finally, we conclude with respect to plaintiff's cross motion that plaintiff failed to meet her initial burden of establishing as a matter of law that the hole at the bottom of the slide constituted a dangerous or defective condition (see Huddleson v. Upper N.Y. Realty, 186 A.D.2d 1064, 590 N.Y.S.2d 771;  see generally Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 109-111, 824 N.Y.S.2d 3;  Reis v. William & John St. Assoc., LLC, 17 A.D.3d 558, 794 N.Y.S.2d 69).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion and reinstating the complaint except for the punitive damages claim and as modified the order is affirmed without costs.

MEMORANDUM: