The Appellate Division, Second Department affirmed HRRV’s summary judgment win in a trip and fall accident at Citi Field in a decision which illustrated the elastic boundaries of the “open and obvious” defect defense and why it is useful for property owners.
In Costidis, the plaintiff alleged that he stumbled while walking on a walkway after parking his car: he fell because of the elevation difference between patio pavers and an abutting tree bed located at the stadium. He claimed that the crowd of pedestrians obscured his ability to observe the sudden narrowing of a walkway and of the change in elevation between the surface of the walkway and the tree bed. He sustained personal injuries when he tripped and fell over the tree bed as he walked to the stadium. Plaintiff claimed that the defendants were negligent in their ownership, operation, maintenance, inspection, design, construction and control of the stadium. He argued that the motion overlooked the 2015 Court of Appeals decision in Hutchinson v. Sheridan Hill House Corp. Hutchinson addressed the trivial defect defenseand held thata defect which, under other circumstances may be deemed trivial, would be rendered a trap because of the presence of “crowds” or similar distractions to a pedestrian.
The Supreme Court, Queens County granted summary judgment because the plaintiff failed to demonstrate that a defective or dangerous condition existed at Citi Field and because it was, at best, a trivial defect. Plaintiff had argued the circumstances of this accident (including the fact that the walkway was crowded with spectators on their way to the stadium) and the intrinsic characteristics of the defect (the sudden narrowing of the walkway) obscured the height differential between the walkway and the dirt tree bed and rendered it neither trivial nor open and obvious.
However, the defendants submitted evidence including the plaintiff’s undisputed sworn testimony that demonstrated the condition was trivial and not actionable. The plaintiff’s own photographs and his sworn testimony (from his General Municipal Law §50 hearing and his deposition) and the sworn testimony of the plaintiff’s girlfriend (a nonparty) established that: on the date of the accident, the weather was sunny and clear; there was no debris or garbage on the walkway; the walkway itself was free of defects; and there was significant visual contrast between the light walkway and the dark tree bed. The purported condition was, therefore, of an open and obvious nature and would have been detected with a reasonable person’s senses.
The Appellate Division, Second Department affirmed summary judgment on different grounds, ruling instead that the allegedly “dangerous” condition was not inherently dangerous and was readily observable by the reasonable use of one’s senses. Therefore, the plaintiff’s negligence action was properly dismissed because there was no duty to protect or to warn the plaintiff of the same. Therefore, the Appellate Division, Second Department did not apply the factors set forth in Hutchinson and dismissed the case because the purported defect was open and obvious, not because it was trivial.
The Appellate Division, Second Department determined that an owner of property or tenant in possession of real property has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann, 87 N.Y.2d 871, 872; Basso v. Miller, 40 N.Y.2d 233, 241). However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses (see Capasso v. Village of Goshen, 84 A.D.3d 998, 999; Cupo v. Karfunkel, 1 A.D.3d 48, 51). Defendants established that the purported difference in elevation between the surface of the walkway and the surface of the tree bed was not inherently dangerous and was readily observable by the reasonable use of one’s senses (see Witkowski v. Island Trees Pub. Lib., 125 A.D.3d 768, 770; Capasso v. Village of Goshen, 84 A.D.3d at 999-1000; Seelig v. Burger King Corp., 66 A.D.3d 986). In opposition, the plaintiff failed to raise a triable issue of fact.
Costidis v. City of New York
Appellate Division, Second Department
Index No. 701929/12
March 21, 2018
Attorneys of Record: (for defendant) Carla Varriale of Havkins Rosenfeld Ritzert &Varriale
