KIMBERLY WEISS PLAINTIFF RESPONDENT v. PARTNERS ROCHESTER LLC DEFENDANT APPELLANT ET AL DEFENDANT (2026)

MEMORANDUM AND ORDER

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 sustained as a result of a trip and fall in a parking lot owned by defendant D&D Partners Rochester, LLC (defendant). Plaintiff allegedly walked close to a temporary speed bump affixed to the parking lot surface and tripped over it. Defendant appeals from an order denying its motion for summary judgment dismissing the complaint. We affirm.

Defendant first contends that the speed bump was not a dangerous condition. We reject that contention. It is well established that “[a] landowner ‘owe[s] people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition’ ” (Nobile v Trawinski, 188 AD3d 1749, 1749 [4th Dept 2020], quoting Tagle v Jakob, 97 NY2d 165, 168 [2001]). “In a negligence action alleging a breach of that duty, a defendant landowner may meet [their] initial burden on a motion for summary judgment by establishing that the alleged hazard did not constitute a dangerous condition” (id.). “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks omitted]; see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77 [2015]). Here, defendant submitted plaintiff's deposition testimony as well as photographs of the speed bump, which clearly show a gap between the bottom of the speed bump and the ground. During her deposition, plaintiff testified that her left foot became caught or “wedged” underneath the speed bump and she tripped and fell forward (cf. Qi Zhong Weng v Jian Juan Wang, 227 AD3d 832, 833 [2d Dept 2024]). Defendant also submitted the deposition testimony of defendant's owner and manager who testified that although he would typically inspect the speed bumps after installation to make sure they were flush, he did not typically reinspect them thereafter. We conclude that defendant's own submissions raise a triable issue of fact whether a dangerous or defective condition existed on defendant's property (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Defendant contends that plaintiff cannot identify the cause of her fall without engaging in speculation and thus cannot establish that the speed bump was a proximate cause of her fall. In a trip and fall case, “a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of [their] fall without engaging in speculation” (Doner v Camp, 163 AD3d 1457, 1457 [4th Dept 2018] [internal quotation marks omitted]; see Conners v LMAC Mgt. LLC, 189 AD3d 2071, 2072 [4th Dept 2020]; Ash v City of New York, 109 AD3d 854, 855 [2d Dept 2013]). “If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation” (Moiseyeva v New York City Hous. Auth., 175 AD3d 1527, 1528 [2d Dept 2019] [internal quotation marks omitted]; see Rinallo v St. Casimir Parish, 138 AD3d 1440, 1441 [4th Dept 2016]). “That does not mean that a plaintiff must have personal knowledge of the cause of [their] fall” (Moiseyeva, 175 AD3d at 1529 [internal quotation marks omitted]). “It only means that a plaintiff's inability to establish the cause of [their] fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence” (id. [internal quotation marks omitted]). During plaintiff's deposition, she testified that nothing in the area of the driving lane where the speed bump was located could have posed a tripping hazard, such as a pothole, a crack in the asphalt, or gum, and she specified that her foot became caught on “[t]he corner” of the speed bump and she “flew forward” (cf. Conners, 189 AD3d at 2072). We conclude that defendant failed to establish as a matter of law that the cause of plaintiff's fall was speculative (see Withers v Roblee, 242 AD3d 1640, 1641 [4th Dept 2025]; Dixon v Superior Discounts & Custom Muffler, 118 AD3d 1487, 1488 [4th Dept 2014]; Weed v County of Orange, 82 AD3d 967, 969 [2d Dept 2011]).

Defendant contends that the speed bumps on the premises were open and obvious to plaintiff by her own admission. “While there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous, the question of whether a condition is open and obvious and not inherently dangerous is generally a jury question and cannot be divorced from the surrounding circumstances” (Blackwood v E.S.F. Transp., Inc., 231 AD3d 923, 925 [2d Dept 2024] [internal quotation marks omitted]; see McKnight v Coppola, 113 AD3d 1087, 1087 [4th Dept 2014]; cf. Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1319 [4th Dept 2012]). “[W]here reasonable minds might disagree as to the extent of [the] plaintiff's knowledge of the hazard, the question is for the jury” (Arcangeli v Global Indus., Inc., 237 AD3d 1590, 1593 [4th Dept 2025] [internal quotation marks omitted]). Here, plaintiff alleges that a gap underneath the speed bump, not the speed bump itself, caused her fall. Defendant therefore failed to eliminate all triable issues of fact whether the gap under the speed bump was open and obvious and thus not inherently dangerous (see Blackwood, 231 AD3d at 925).

Finally, defendant contends that plaintiff assumed the risk of injury. As stated by the Court of Appeals, the “application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” (Custodi v Town of Amherst, 20 NY3d 83, 89 [2012]; see Farnham v MIC Wholesale Ltd., 176 AD3d 1605, 1608 [4th Dept 2019]). The assumption of the risk doctrine therefore does not provide a basis for dismissal here (see Stiggins v Town of N. Dansville, 155 AD3d 1617, 1619 [4th Dept 2017]; Alexander v St. Mary’s Inst., 78 AD3d 1475, 1477 [3d Dept 2010]).

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court