TERRANOVA v. STATEN ISLAND UNIVERSITY HOSPITAL (2008)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated January 29, 2008, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

 A landowner is under no duty to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see Fitzgerald v. Sears, Roebuck & Co., 17 A.D.3d 522, 793 N.Y.S.2d 164;   Orlando v. Audax Constr. Corp., 14 A.D.3d 500, 788 N.Y.S.2d 173;  Capozzi v. Huhne, 14 A.D.3d 474, 788 N.Y.S.2d 152;  Jang Hee Lee v. Sung Whun Oh, 3 A.D.3d 473, 771 N.Y.S.2d 134;  Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).   Here, the plaintiff allegedly was injured when she tripped on the footrest of a wheelchair in a hospital room.   The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the presence of the wheelchair was open and obvious, known to the plaintiff, and not inherently dangerous (see Mastellone v. City of New York, 29 A.D.3d 540, 813 N.Y.S.2d 669;  Fitzgerald v. Sears, Roebuck & Co., 17 A.D.3d at 522, 793 N.Y.S.2d 164;  Weiner v. Saks Fifth Ave., 266 A.D.2d 390, 698 N.Y.S.2d 330;  Lamia v. Federated Dept. Stores, 263 A.D.2d 498, 692 N.Y.S.2d 738;  Sewer v. Fat Albert's Warehouse, 235 A.D.2d 414, 652 N.Y.S.2d 102).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.