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Alisa JOHNSON and Mark Johnson, Plaintiffs, v. HILL COUNTRY BROOKLYN, LLC d/b/a Hill Country Barbeque & Market and Muss Development, LLC, Defendants.
The following papers were read on this motion by defendant for summary judgment. PAPERS/NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1
Answering Affidavits — Exhibits (Memo) 2
Replying Affidavits (Reply Memo) 3
This is a personal injury action commenced by plaintiffs Alisa Johnson and Mark Johnson on December 16, 2014 by filing a Summons and Complaint to recover damages for injuries allegedly sustained by plaintiff Alisa Johnson on August 24, 2014, when she tripped and fell over a leg of a sidewalk advertising sign placed near the Willoughby Plaza entrance to Hill Country Barbeque & Market, located at 345 Adams Street in Brooklyn, New York (Premises). Plaintiff's husband, Mark Johnson, alleges a loss of consortium. Defendant Muss Development, LLC (Muss Development) owns the Premises and defendant Hill Country Brooklyn, LLC d/b/a Hill Country Barbeque & Market (Hill Country Restaurant) leases the retail space on the ground-floor at the Premises from Muss Development. Issue has been joined, discovery is complete, and a Note of Issue has been filed. Before the Court is a motion by the defendants for an Order, pursuant to CPLR 3212, granting summary judgment dismissing the Complaint. Plaintiffs are in opposition to the motion and defendants submit a reply.
According to her Verified Bill of Particulars (BP), plaintiff Alisa Johnson was injured at approximately 4:30 p.m. on August 24, 2014 (see Notice of Motion, exhibit C ¶¶ 4-5). She allegedly tripped over one of the base legs of Hill Country Restaurant's sidewalk advertising sign (sidewalk sign) when she was walking past the Restaurant on her way home from a 99 Cent Store. Plaintiff was aware of the sidewalk sign in front of Hill Country Restaurant. She testified that she first observed the sign from a distance of approximately twelve feet. Shortly before her alleged accident, plaintiff walked up to a host stand by the entrance to the Restaurant to take a takeout menu. She then proceeded home. The sidewalk sign was placed near the stand and less than a foot from the wall of the Restaurant building abutting Willoughby Plaza. The Plaza is a pedestrian plaza closed to vehicle traffic with benches and outdoor tables for public use. As plaintiff was passing Hill Country Restaurant, she was looking straight ahead to watch where she was walking, but she was not looking down at the sidewalk and she did not notice the base legs of the sidewalk sign before her toe touched one of the legs and she tripped over it. The sidewalk alongside Hill Country Restaurant, where the sidewalk sign was located, was not crowded with passersby, nor was the sign obscured, on the day of the accident.
SUMMARY JUDGMENT STANDARD
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 ; Andre v. Pomeroy, 35 NY2d 361, 364 ; Winegrad v. NY Univ. Medical Cntr., 64 NY2d 851, 853  ). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez, 68 NY2d at 324; CPLR 3212[b] ). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 ; Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v. Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974] ). Once a prima facie showing has been made, however, “the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution” (Giuffrida v. Citibank Corp., 100 NY2d 72, 81 ; Zuckerman v. City of NY, 49 NY2d 557, 562  ).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404  ). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc., 65 NY2d 625, 626 ; Boyd v. Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 ; CPLR 3212[b] ).
“A landowner has a duty to maintain its premises in a reasonably safe condition” (Van Dina v. St. Francis Hosp., Roslyn, NY, 45 AD3d 673, 674 [2d Dept 2007]; see Basso v. Miller, 40 NY2d 233, 241  ). “The scope of a landowner's duty to maintain property in a reasonably safe condition may also include the duty to warn of an open and obvious condition” (Cupo v. Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]; see also Bissett v. 30 Merrick Plaza, LLC, 156 AD3d 751, 752 [2d Dept 2017]; Simon v. Comsewogue Sch. Dist., 143 AD3d 695, 695 [2d Dept 2016] ). However, “a landowner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous” (id.; Oldham-Powers v. Longwood Cent. Sch. Dist., 123 AD3d 681, 682 [2d Dept 2014]; Baron v. 305-323 E. Shore Rd. Corp., 121 AD3d 826, 827 [2d Dept 2014] ). “The issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question” (Tagle v. Jakob, 97 NY2d 165, 169 ; Gordon v. Pitney Bowes Mgmt. Servs., Inc., 94 AD3d 813, 814 [2d Dept 2012] ). As such, “[t]he question cannot be divorced from the surrounding circumstances” (Gordon, 94 AD3d at 813); Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2d Dept 2008] ). “Where only one conclusion can be drawn from the established facts, however, the issue of whether the risk was open and obvious may be decided by the court as a matter of law” (Liriano v. Hobart Corp., 92 NY2d 232, 242 ; Tagle, 97 NY2d at 169).
The test for an open and obvious condition is whether “[a]ny observer reasonably using his or her senses would see” the condition (Tagle, 97 NY2d at 170). Moreover, “[a] condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” (Gordon, 94 AD3d at 814—15; Villano v. Strathmore Terrace Homeowners Ass'n, Inc., 76 AD3d 1061, 1062 [2d Dept 2010], citing Shah v. Mercy Med. Ctr., 71 AD3d 1120 [2d Dept 2010], Mazzarelli, 54 AD3d at 1008).
However, the Appellate Division, Second Department clarified that “proof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of plaintiff's comparative negligence” (Cupo, 1 AD3d at 52). “[T]his will be an issue only in cases where it can reasonably be argued that a dangerous condition existed on the property which the landowner was under a duty to remedy” (id.). Thus, “[a] court is not precluded from granting summary judgment to a landowner on the ground that the condition complained of by the plaintiff was both open and obvious and, as a matter of law, was not inherently dangerous” (id. [emphasis in original] ). “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” (id.).
A. Open and Obvious Dangerous Condition
Here, the Court finds that defendants established their prima facie burden that the sign, including its base and protruding legs, on which plaintiff tipped and fell, was open and obvious, and not inherently dangerous as a matter of law. In their motion, defendants argued that the sign was reasonably unobtrusive and plaintiff observed the sign before she tripped over its base and fell (see Notice of Motion ¶ 17). Additionally, defendants aver that plaintiff had ample room to avoid the sign after observing it as the space where the sign was placed was not crowded and not narrow (see id. ¶ 22). In opposition, plaintiff argues, inter alia, that defendants improperly framed the central premise in their motion that the sign was an open and obvious risk on the sidewalk (see Plaintiff's Opp ¶ 4). Instead, the proper question before the Court is whether the metal base legs of the sign were open and obvious dangerous condition on the sidewalk (see id. ¶ 21).
In Benson, the plaintiff tipped over one of the legs of a tripod holding a spotlight that was used to illuminate the stage during an exhibition (see Benson v. IT & LY Hairfashion, NA, Inc., 94 AD3d 932, 932 [2d Dept 2012] ). The plaintiff observed the tripod but she was not looking down at its legs, which stretched out no more than one to two and one-half feet from center of the spotlight, when she was leaving the exhibition (see id., Brief for Plaintiff-Appellant, 2011 WL 8202626, *5). The color of the feet of the tripod was black and it was similar to the dark gray color of the carpet on the floor (see id.). The Benson Court held that the tripod leg that allegedly caused plaintiff's injury was open and obvious, and also not inherently dangerous, and the Court affirmed defendant's summary judgment dismissing the plaintiff's complaint (see id. at 933). Similarly, in Kaufmann, the Court affirmed defendants' summary judgment dismissing plaintiff's complaint where plaintiff tripped over a clothing rack while trying to step over its base (see Kaufmann v. Lerner, 41 AD3d 660, 661 [2d Dept 2007] ). The Kaufmann Court pointed out that the plaintiff observed the rack before her accident and held that the placement of the rolling clothing rack inside the corridor of the dressing room was not inherently dangerous (see id.). In Lew, the plaintiff tripped and fell on the leg of a chair while she was walking down an aisle with bookshelves located on one side and tables and chairs on the other (see Lew v. Manhasset Pub. Lib., 123 AD3d 1096 [2d Dept 2014] ). The plaintiff tripped when she tried to walk around a book cart left in the aisle (see id.). The Lew Court held that both the book cart and the chair were open and obvious, and not inherently dangerous, and the Court affirmed defendants' summary judgment dismissing the plaintiff's complaint (see id. at 1097).
In Gerner, the plaintiff tripped on the base, or the foot, of a decorative fence (see Gerner v. Shop Rite of Uniondale, Inc., 148 AD3d 1122 [2d Dept 2017] ). Although the plaintiff observed the fence when she was walking in a narrow space between the fence and a decorative planter, she did not notice the foot of the fence before she tripped on it (see id. at 1122). The Gerner Court found that the defendants were not liable for the plaintiff's trip and fall accident and held that both “the fence, including the “leg” or foot of the fence, was open and obvious, as it was readily observable by those employing the reasonable use of their senses and, as a matter of law, was not inherently dangerous” (see id. at 1123). Importantly, the Gerner Court stated that the plaintiff also failed to raise a “triable issue of fact as to whether the foot of the fence constituted a “trap for the unwary” because it was somehow obscured” or “the foot of the fence was dangerously encroaching into the main aisle or other commonly used walkaway” (see id.).
At the case at bar, the sidewalk sign was a 23″ by 33″ letter board sign (see Notice of Motion, exhibit L, Aff of Bill Lukashok). The sign was elevated additional twelve inches above the ground to reach 45″ in height. The legs of the sign protruded no more than one foot forward and backward and the sign was standing parallel to the building with its innermost legs also less than one foot from the wall of Hill Country Restaurant (see Benson, 94 AD3d 932 [legs protruding one to two and a half feet from the center of the spotlight] ). Thus, the sign itself sufficiently alerted plaintiff to the presence of its legs or the base beneath it (cf. Muariello v. Port Authority of NY and NJ, 8 AD3d 200, 201 [1st Dept 2004] [holding that a genuine issue of fact existed as to whether the hazardous condition created by an approximately 10-inch-high metal track was open and obvious, and whether port authority maintained the subject premises in a reasonably safe condition, where the track was installed on the floor to hold rental luggage carts and was obscured by crowds of people] ). Similar to Benson, Kaufman, and Gerner, plaintiff testified that she not only observed the sidewalk sign but she also was not looking down before she tripped over its legs (see Notice of Motion, exhibit E, Alisa Johnson's Tr at 46, 54-57, 77, 120). Furthermore, plaintiff testified that the space where the sidewalk sign was located was neither narrow, unlike in Kauffman, Lew, and Gerner; nor, unlike in Muariello, was it obscured by crowds of people (id. at 94-95, 120). Moreover, although plaintiff further argues that the sign was obstructed because its color was blending with the color of the sidewalk, here, as in Benson and Gerner, this argument must be rejected (see Plaintiff's Opp ¶ 21; Benson, 94 AD3d 932, Brief for Plaintiff-Appellant, 2011 WL 8202626, *5; Gerner, 148 AD3d at 1123).
Thus, the gist of plaintiff's negligence claim against Hill Country Restaurant is that the Restaurant should be held liable for plaintiff's harm even though her accident occurred in an unexpected manner. However, this contention is misguided as the occurrence of plaintiff observing the sidewalk sign and still tripping over its legs was not with the class of hazards normally associated with placing a sign on a sidewalk, “even though the risk may be now readily perceived through hindsight” (see Di Ponzio v. Riordan, 89 NY2d 578, 583-586 ; see also Benson, 94 AD3d 932, 2011 WL 8202630, *6-7). “The duty of a landowner ․ is not limitless” as “the law draws a line between remote possibilities and those that are reasonably foreseeable” (Di Ponzio, 89 NY2d at 583). This is so, because “virtually every untoward consequence can theoretically be foreseen ‘with the wisdom born of the event’ ” (id.; citing Greene v. Sibley, Lindsay & Curr Co., 257 NY 190, 1902  ). The standard for judging Hill Country Restaurant is “one of conduct, rather than consequences” in the context of reasonable and legally recognizable risks (see Prosser & Keeton, Torts § 31 at 170 [5th ed 1984] ). Additionally, the utility of placing a sign such as Country Hill Restaurant's must be balanced against the gravity of the risk of a person tripping over it under circumstances similar to the case at bar to determine “whether ‘the fame is [even] worth the candle” (see id. at 171). As defendants correctly point out, adopting plaintiff's broad definition of negligence in this context would subject all New York City businesses that use similar sidewalk signs to liability for negligence (see Notice of Motion ¶ 21). Therefore, upon consideration of the foregoing, the Court finds that the motion by Hill Country Restaurant for summary judgment dismissing plaintiffs' Complaint insofar as asserted against it must be granted. As a result, the claim of plaintiff Mark Johnson for the alleged loss of consortium is likewise dismissed as moot.
B. Liability of Out-of-possession Landlord
“An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises or is contractually obligated to perform maintenance and repairs” (see Alnashmi v. Certified Analytical Group, Inc., 89 A.D3d 10 [2d Dept 2011]; Knipfing v. V & J, Inc., 8 AD3d 628, 628—629 [2d Dept 2004] ).
Here, defendant Muss Development argues that the Complaint against it should be dismissed as Muss Development does not owe legal duty to plaintiff for it is an out-of-possession commercial landlord that delegated all its maintenance responsibility to Hill Country Restaurant and plaintiff does not allege that the Premises had a “significant structural or design defect” that might subject Muss Development to liability under the rule of Knipfing (see Notice of Motion ¶¶ 24-25). Indeed, plaintiff conceded, in opposition, that Muss Development is not liable for her accident as a matter of law (see Opp Aff ¶ 2). Consequently, the motion by Muss Development for summary judgment dismissing plaintiffs' Complaint insofar as asserted against it must be granted.
For these reasons and upon the foregoing papers, it is,
ORDERED that the motion by defendants Hill Country Restaurant and Muss Development, pursuant to CPLR 3212, seeking summary judgment dismissing the Complaint insofar as asserted against each of them is granted in its entirety; and it is further,
ORDERED that the claim of plaintiff Mark Johnson for a loss of consortium is dismissed; and it is further,
ORDERED that counsel for defendant Hill Country Restaurant is directed to serve a copy of this Order with Notice of Entry upon the defendants and the County Clerk who shall enter judgment accordingly.
This constitutes the Decision and Order of the Court.
Paul Wooten, J.
Response sent, thank you
Docket No: 17366/2014
Decided: March 21, 2018
Court: Supreme Court, Kings County, New York.
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