Spalding v Toomer
Annotate this CaseDecided on January 7, 2005
Supreme Court, Bronx County
Millicent Spalding and Caulter Spalding, Plaintiffs,
against
Victoria Toomer, Defendant.
26672/2001
Counsel for plaintiff:
Law Offices of William A. Gallina, 1180 Morris Park Avenue, Bronx, NY 10461
by David L. Engelsher, Esq.
Counsel for defendant:
Alan B. Brill, PC,49 N. Airmont Road, Suite 100, Suffern, NY 10901
by Ernest S. Buonocore, Esq.
Betty Owen Stinson, J.
This motion by defendant for summary judgment dismissing the action is
granted.
Millicent Spalding ("plaintiff") was allegedly cut on her left great toe by a wire protruding from a wall in her apartment when she rested her foot, encased in a soft opened-toe slipper, on a baseboard heater while looking out the window. Plaintiff's husband subsequently removed the approximately 1/2" length of wire from the wall with a pair of pliers. The apartment in which the accident occurred was the second floor of a house owned by plaintiff's mother, who occupied the first floor. At the time of the accident, plaintiff had been living in the apartment with her husband, son and daughter for about fifteen years. Prior to that time, plaintiff's brother occupied the apartment.
Plaintiff sued her mother for negligence in allowing a hazardous condition to exist in the bedroom of her apartment. At her deposition, plaintiff was asked if she had ever seen the subject wire before her accident, and she replied that she had not, nor did she know how long the wire had been there (Deposition of Millicent Spalding, July 24, 2003 at 17-18). Plaintiff's husband also testified that he had never seen the wire before the accident. He testified that plaintiff showed him her injury, which was, at the time, a "small pierce". When plaintiff was asked whether she had ever complained to her mother about the "loose wires", she answered that she had (Id. at 70). She testified further as follows:
Q:Did you request that any work be done in the year
prior to the accident in your son's room?
A:Yes.
Q:That included the wires that you just described?
A:Yes.
Q:What did you want your mother to do with the wires? [*2]
A:To . . . just to do an overhaul in that room.
(Id. at 71).
Plaintiff's mother, the defendant herein, testified that, when her son vacated the apartment fifteen years prior to the accident, she entered the room and looked around. She was asked if she saw any "wires or cables sticking out from the wall in any place" at that time and she answered in the affirmative (Deposition of Victoria Toomer, July 24, 2003 at 15-16). She stated that, once plaintiff moved into the apartment, she visited plaintiff's apartment approximately once a week and "sometimes" went into the subject room, a bedroom occupied by plaintiff's son, Caulter Jr..
Q:When you went in there, did you ever observe a piece
of wire sticking out of the wall that Millicent told you
came in contact with her great toe on her left foot?
A:She told me about the apartment needed taking care of, but I . . .
Q:But my question to you is did you ever see a piece of
wire in Caulter Jr.'s room under the window and above
the baseboard heater?
A:Yes.
Q:Did you see that wire sticking out of the wall?
A:Yes.
Q:I am going to show you what has been marked as Defendant's Exhibit B on today's date. Is this, if you know, what you saw sticking out of the wall (indicating)?
A:Yes.
Q:Just so I am clear, that's the wire you saw sticking out
of the wall before Millicent told you about the accident
(indicating)?
A:Yes.
Q:At any time before the date of the accident, before you
found out about it, had Millicent or Caulter or anybody
told you that there was a wire sticking out or that something
needed to be fixed in Caulter Jr.'s room?
A:Yes. [*3]
Q:Who told you and what did they tell you before the accident?
A:They told me that, you know, I need to fix the room;
it needed repairing.
(Id. at 13-15).
At the close of discovery, defendant made the instant motion for summary judgment
dismissing the complaint for failure to make a prima facie case of negligence.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]).
To establish a prima facie case in a premises liability action, a plaintiff must prove the defendant had actual or constructive notice of the dangerous or defective condition and sufficient time, within the exercise of reasonable care, to correct or warn about its existence (Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]; Lewis v. Metropolitan Transp. Auth., 99 AD2d 246 [1st Dept 1984], aff'd 64 NY2d 670 [1984]). Constructive notice can be established if the defect is visible and apparent and in that condition for a sufficient length of time that the defendant is presumed to have seen it or was negligent in failing to see it (Gordon, 67 NY2d 836).A landowner must maintain his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk (Basso v. Miller, 40 NY2d 233 [1976]). "In determining whether there is sufficient evidence to support a negligence finding to submit to a jury, the question is whether the foreseeability of risk is too remote" (Greaves v. Bronx YMCA, 87 AD2d 394 [1982]). What constitutes a hazardous condition is normally an issue of fact for the jury (see id.). When, however, it is concluded that there is no reasonable view of the evidence upon which to assess liability, the question is one of law for the court (id.).
In support of the motion, defendant offered the above-quoted deposition testimony and the affidavit of its expert, Brian G. Brady, forensic engineer. Mr. Brady examined the subject premises, the actual length of wire and the deposition transcripts. He found a baseboard radiator with telephone cable along its top attached to the wall with staples. Under the window, two staples appeared to be missing in the location plaintiff claims she was injured. Mr. Brady found the top of the radiator to be bent downward, suggesting that people often rested their foot on that same part of the radiator. Examination of the piece of wire showed its physical characteristics to be similar to the staples holding the telephone cable. Mr. Brady stated that, in his experience, telephone cable staples remain in place indefinitely unless disturbed by some outside force. In his opinion, the most likely explanation for dislodged staples in this instance was the same force that caused the top of the radiator to become deformed downward.
In opposition to the motion, plaintiff argued that an issue of fact as to actual notice of a hazardous condition had been adequately demonstrated by the testimony of the defendant wherein she admitted she was made aware of the subject wire fifteen years earlier when her son vacated the subject apartment, again "sometimes" after her daughter moved in to the apartment, [*4]and finally when she was asked "to do an overhaul in that room".
Defendant has established her entitlement to judgment which plaintiff has not refuted with admissible evidence. Plaintiff's conflicting testimony that she failed to see the wire before her accident but nevertheless reported its presence to the defendant before the accident, cannot be credited. Setting aside the parties' obvious incentive for collusion and the undeniably eager cooperation of defendant with plaintiff's attorney at her deposition, and looking only at the evidence offered, plaintiff has not established that a hazardous condition was evident to the defendant before the occurrence of plaintiff's accident with sufficient time to remedy the condition (see Gordon, 67 NY2d 836; Lewis, 99 AD2d 246). Defendant's testimony does not indicate what the condition of the "loose wire" or staple was when she claims to have seen it, other than that it was "loose" or "sticking out of the wall". A merely loose telephone cable staple does not constitute a "hazardous condition" as a matter of law. Even assuming that the dislodged staple was in exactly the same configuration for at least fifteen years, despite evidence suggesting persons regularly placed their feet on the baseboard radiator, its presence did not constitute a foreseeable danger. It was not in a prominent place. It was located approximately seven inches off the floor just along the juncture of the wall and a protruding radiator. There is no evidence the "loose wire" was in a configuration that presented a danger at any time the defendant claims to have viewed it or that it is even now in the configuration it was in at the time of the accident. Plaintiff's husband admittedly manipulated the staple with a pair of pliers to detach it from the wall. Even crediting plaintiff's testimony as to the happening of the accident and assuming the wire stuck straight out of the wall like a spike when plaintiff's foot came in contact with it, there is no testimony to show that the wire was in such a hazardous or dangerous position at the time it was ostensibly viewed by the defendant. Plaintiff's attorney's leading description of the wire as "sticking out", buried in the midst of compound questions, is not sufficient to establish that fact. Furthermore, there is no evidence indicating when defendant viewed the wire, assuming she saw it in a dangerous configuration, and whether that was sufficiently in advance of the event to have allowed her time to remedy the condition. Therefore, plaintiff has not made a prima facie case demonstrating the necessary element of notice and the action must be dismissed. Her husband's action is only derivative and must rise or fall with hers.
Movant is directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the action in its entirety.
This constitutes the decision and order of the court.
Dated: January 7, 2005
Bronx, New York
_______________________________
Betty Owen Stinson, J.S.C..
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