Misir v Beach Haven Apt. No. I, Inc.
Annotate this CaseDecided on July 18, 2005
Supreme Court, Kings County
Bibi Rakeeba Misir, Plaintiff,
against
Beach Haven Apartment No. I, Inc., Defendant.
47307/03
Herbert Kramer, J.
Plaintiff, claimed that she slipped and fell on a three to four foot wide pile of leaves that was situated off to one side of the driveway of defendant's building. It had been drizzling slightly when she left the building. She did not know how long it had been drizzling, nor whether it had rained the previous day. Plaintiff had seen the pile of leaves when she left the building to get some donuts and when she returned to the building from the donut shop she fell as she began to walk through the pile of leaves. Defendant's superintendent testified that the porters would check the premises and remove debris and leaves from the sidewalks and lawns twice a day in Autumn, and would collect them and place them in bags. They also had a contract with a landscape company that would cut the lawn and remove the leaves and debris.
Defendant moves for summary judgment arguing that the condition complained of was open and obvious and was not inherently dangerous and that if a dangerous condition did exist the defendant acted reasonably in maintaining its property and further that the defendant did not have notice of the dangerous condition. Plaintiff responds arguing that leaves raked into a pile is not a condition that as a matter of law never [could] be held to be defective or dangerous and , that defendant's proof of its having acted reasonably failed since the only evidence it brought was one of custom and practice rather than its actual conduct on the day in question but see contra, Dominy v. Golub Corp., 286 AD2d 810(3d Dept. 2001). Plaintiff further argues that the defendant created the defective condition by raking the leaves into a pile and finally that the [*2]condition lasted for a sufficient length of time so as to give the defendant constructive knowledge of it.
A Court may grant summary judgment to a land owner where, as here, the condition complained of "was both open and obvious and, as a matter of law, . . . not inherently dangerous." Cupo v. Karfunkel, 1 AD3d 48I 2d Dept. 2003). The question to be decided here is whether a pile of leaves, even when wet, is as a matter of law, not an inherently dangerous condition.
Long standing precedent and more recent analogous cases demonstrate that this question must be answered in the affirmative. It was long ago established without later contradiction that there is no liability for an "injury from wet leaves where [as here] the sidewalk had no defect, and nothing indicating negligence appeared, beyond a walk made slippery by leaves moistened by one or two hours of rain." Osborne v. Village of North Tarrytown, 180 A.D. 224 (2d Dept. 1917). Indeed the Osborne Court explicitly held that autumn leaves in and of themselves are not dangerous nor does liability attach for a fall on slippery pavement. Id. Nor does the plaintiff here demonstrate that the fact that the leaves may have been in a pile, a pile into which she voluntarily stepped, somehow make them more dangerous.
Analogous cases more recently decided lead to the same result. Verdict in favor of a plaintiff who tripped and fell on a wet plank walk was reversed on the ground that "something more than a slippery walk was required to be shown to enable plaintiffs to recover." Bacon v. Altamont Farms, Inc., 33 AD2d 08(3d Dept. 1969). Under circumstances where wet and slippery conditions were "naturally recurring conditions in campground setting" coupled with principle that " the mere fact that a floor or walkway becomes slippery when wet does not establish a dangerous condition" sufficient to sustain jury's defense verdict rejecting contrary contention. Todt v. Schroon River Campsite Inc., 281 AD2d 782(3d Dept. 2001).
Since I find that no dangerous condition existed with respect to the pile of leaves, there is no theory upon which defendant's liability can be premised.
Accordingly, the defendant's motion for summary judgment dismissing the complaint is granted. The complaint is dismissed.
This constitutes the decision and order of the Court.
J.S.C.
The question presented in this case is whether a pile of wet leaves is a "dangerous condition" which could render a landlord liable for injuries sustained in a trip and fall accident. While there is a rather old case (1917) that answers this question, the instant decision may well be one of first impression on its precise facts and in a current setting.
Accordingly, we believe this case will be of interest to bench and bar.
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