Ratkewitch v Simon Prop. Group, Inc.
Annotate this CaseDecided on May 8, 2009
Supreme Court, Nassau County
Christina Ratkewitch and DANIEL RATKEWITCH, Plaintiffs,
against
Simon Property Group, Inc., and W & S ASSOCIATES, L.P., Defendants.
847/07
Plaintiff's Attorney:
Siler & Ingber, LLP
Defendant's Attorney:
Philip J. Rizzuta, P.C.
F. Dana Winslow, J.
The motion by defendants Simon Property Group, Inc. ("Simon") and W & S Associates, Inc. ("W & S") and the cross motion by plaintiffs, both seeking, respectively, orders granting them summary judgment are denied for the reasons set forth herein.
The plaintiffs commenced this action for monetary damages due to the injuries allegedly sustained by Christina Ratkewich (the "plaintiff") (co-plaintiff Daniel Ratkewich's cause of action is a derivative one) in a trip and fall incident that occurred in the north parking lot at the Source Mall, Old Country Road, Westbury, NY on August 2, 2006 at approximately 9:30 PM. The plaintiff testified that she was walking to her car when she fell in the parking lot. Plaintiff stated she came down on the side of her ankle on a slope in the parking lot, she fell, came down on her left knee, and fell on her behind (see Exhibit D, pgs. 31, 53, 54 annexed to defendants' motion). [*2]
Defendants deny they created the condition. They deny they had any specific knowledge of any alleged defect in the area where plaintiff contends the incident occurred. They also deny they had constructive notice of any alleged condition.
Defendants offer the deposition of Glenn Ward (see Exhibit F annexed to defendants' motion; the following pages refer to that exhibit). Mr. Ward is director of operations for Simon, and he manages the Simon's property at the Source. Mr. Ward stated he would drive around the property (including the Source parking lot where the incident occurred) every day (pgs. 23-24); on occasion, Mr. Ward would walk (pgs. 25-26); Mr. Ward did not recall getting complaints from anyone about the surface of the parking lot in the area where the incident occurred (pg. 35); Mr. Ward noticed no pooling of rain water (caused by a depression) in area where the incident occurred (p. 41); and the parking lot in issue has grade changes for drainage purposes (p. 45).
Plaintiffs have offered the affidavit of Richard Robbins, an architect (see Exhibit D annexed to plaintiffs' cross motion). Mr. Robbins indicated the parking lot abruptly changed grades, the trough/depression in the asphalt was difficult to notice after dark, and the trough/depression existed for at least five years prior to Mr. Robbins inspection (on August 28, 2006 approximately two weeks after the incident).
First, the court must address the timeliness of plaintiffs' cross motion. A plaintiff's "untimely" cross motion for summary judgment could be considered by the court where the timely motion for summary judgment was made on nearly the identical grounds (Grande v Peteroy, 39 AD3d 590; see also Biskelman v Herrill Bowling Corp., 49 AD3d 578). Here, plaintiffs' cross motion made after defendants' timely motion will be permitted and considered since it discusses the identical grounds of defendants' timely summary judgment motion.
Also, Simon indicates it has no control over the area where the incident occurred, and it should be released as a defendant herein.
Defendants offer the deposition of Joseph Floccari, assistant mall manager in the Source Mall (see Exhibit E annexed to defendants' motion), who stated Simon is the managing company of the property in issue and W & S was the owner (p. 10).
A managing agent of the premises in or on which the plaintiff allegedly sustained an injury, the defendant managing agent, such as Simon, if it was in complete and exclusive control of the management and operation of the premises is a responsible party. (see Hagen v Gilman Management Corp., 4 AD3d 330). [*3]Here, there is an issue of fact as to the status of Simon as managing agent—was its role that which displaced the owner's—W & S's—duty to maintain the premises safely (see Perkins v Cosmopolitan Care Corp., 308 AD2d 437).
There is deposition testimony cited previously as to the daily inspection of the property including the area were the incident occurred.
A negligent failure to discover a condition that should have been discovered can be no less of a breach of due care than a failure to respond to the actual notice of such a condition (Blake v City of Albany, 48 NY2d 875).
One who undertakes to perform inspections becomes subject to a duty to perform such inspection in a non-negligent manner (West Side Cor. v PPG Industries, 225 AD2d 459).
Here, there is an issue of fact as to whether defendants' employees properly performed inspection of the parking lot where the incident occurred.
A landowner must act as a reasonable person in maintaining his or her 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 (Peralta v Henriquez, 100 NY2d 139; Tagle v Jakob, 97 NY2d 165; Basso v Miller, 40 NY2d 233).
A landowner has a duty to maintain its premises in a reasonably safe condition and to warn of a dangerous condition that is not readily observable with the reasonable use of one's senses (DiVietro v Gould Palisades Corp., 4 AD3d 324). A reasonably safe condition takes in to consideration all circumstances including the purpose of the person's presence on the property and the likelihood of injury (Macey v Truman, 70 NY2d 918).
There is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (Capozzi v Huhne, 14 AD3d 474; Plis v North Bay Cadillac, 5 AD3d 578). Thus, it is well settled that there is no duty on the part of the landowner to warn against a condition that can be readily observed by those employing the reasonable use of their senses (Paulo v Great Atlantic and Pacific Tea Company, 233 AD2d 380).
For a hazard or dangerous condition to be open and obvious, such that the property owner has no duty to warn a visitor, the hazard or dangerous condition must be of a nature that would not reasonably be overlooked by anyone in the area whose eyes were open, making a posted warning of the premises of the hazard superfluous (see Liriano v Hobart Corp., 92 NY2d232).
The open and obvious nature of a hazard may obviate a claim that the property owner violated the duty to warn of, or place barriers to protect against, [*4]dangers on the premises, but the open and obvious nature of an alleged hazard does not eliminate a claim that the presence of the hazardous condition constituted a violation of the property owner's duty to maintain the premises in a reasonably safe condition (Slatsky v Great Neck Plumbing Supply, Inc., 29 AD3d 776; Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69; DiVietro v Gould Palisades Corp., supra).
Even if a jury was to find that a condition was an open and obvious condition, such finding would be relevant to the issue of the plaintiff's comparative negligence and would not totally absolve the defendant of liability (Hogan v Bader, 29 AD3d 740; Molony v Wal-Mart Stores, Inc., 2 AD3d 508).
There is no rigid test for determining whether a condition on a premises is open and obvious in analyzing whether an alleged tortfeasor is liable for an allegedly dangerous condition; the test is whether any observer reasonably using his or her senses would see the condition; the test for determining whether a condition on a premises is open and obvious incorporates a reasonableness standard is fact-specific and usually presents a question for resolution by the trier of the fact (Centeno v Regine's Originals, Inc., 5 AD3d 210).
For an owner or landlord to be held liable for a defective condition upon the premises, he must have actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, he should have corrected it (Putnam v Stout, 38 NY2d 607).
Of course, a defendant must have either actual or constructive notice of the hazardous condition that caused the plaintiff to slip and fall (Piacquadio v Recine Realty Corp., 84 NY2d 967; Gordon v American Museum of Natural History, 67 NY2d 836).
In a premises liability action, the plaintiffs may satisfy the burden of showing that the property owner was on notice of the dangerous condition that allegedly resulted in the plaintiff's injury by producing evidence that an ongoing dangerous condition existed in the area of the incident, which condition was left unaddressed by the property owner (Talavera v New York City Transit Authority, 41 AD3d 135).
Where the plaintiff proceeds on the theory of constructive notice, the plaintiff must ultimately prove at trial that the defect which caused the accident was visible and apparent, and that it existed for a sufficient length of time prior to the accident to permit the defendant (or its employees) to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 826; Daniely v County of Westchester, 297 AD2d 654, lv to app den. 100 NY2d 501). [*5]
Photographs may be used to show constructive notice of an alleged defect if the photographs were taken reasonably close to the time of the incident, and there is testimony that the condition at the time of the incident was substantially as shown in photographs (see Champagne v Peck, 59 AD3d 1130; Truesdell v Rite Aid of New York, Inc., 228 AD2d 922). Such photographs were offered by plaintiff (see Exhibit D annexed to plaintiffs' cross motion).
In order to demonstrate constructive notice, there must be a showing that the condition was visible and apparent and existed for a sufficient period of time prior to the incident to permit defendants to discover it and take corrective action (Martin v RP Assoc., 37 AD3d 1017).
Defendants imply the alleged defect is trivial and, thus, not actionable.
A property owner may not be held liable in damages for trivial defects on a roadway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble or trip (Ryan v KRT Property Holdings, LLC, 45 AD3d 663).
However, in determining whether a defect is trivial, a court must consider all the facts presented including width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury (Trincere v County of Suffolk, 90 NY2d 976; Outlaw v Citibank, N.A., 35 AD3d 564).
There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable; whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury (Trincere v County of Suffolk, supra; Wilson v Time Warner Cable, Inc., 6 AD3d 801).
The facts presented herein do not demonstrate, as a matter of law, that the alleged defective condition which caused the plaintiff to fall was too trivial to be actionable (Smith v A.B.K. Apartments, Inc., 284 AD2d 323). Also, 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's attention is otherwise distracted or diverted (Mauriello v Port Authority of New York and New Jersey, 8 AD3d 200).
Did the incident occur in daylight? Was the injured plaintiff familiar with the area? Was the area painted a bright color (yellow:) to alert a prudent observer/pedestrian/s attention? Here, the incident occurred at night, at approximately 9:40 PM at night. There was no indication that plaintiff was [*6]familiar with the area or that the area where the incident occurred was highlighted.
Was there "optical confusion" due to defendants' failure to properly mark, light (repair?) or otherwise distinguish the area in any meaningful fashion as exacerbated by the dark asphalt color and the fact that the incident happened at night (see generally Chafoulias v 240 E. 55th Street Tenants Corp., 141 AD2d 207).
Thus, 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 observed or the plaintiff's attention is otherwise distracted or diverted (Mauriello v Port Authority of New York and New Jersey, 8 AD3d 200). Thus, did the conditions set forth herein present a trap to plaintiff? Was the alleged trough hidden by the dark asphalt, the late hour, and the lighting in the lot?
As noted, the fact that the condition that brought about the plaintiff's fall could be of an open and obvious nature does not bar a finding of liability against the defendants as property owners, but it does go to the issue of comparative negligence (Hogan v Bader, supra; Moloney v Wal-Mart Stores, Inc., 2 AD3d 508; Cupo v Karfunkel, 1 AD3d 48). Also, the doctrine of the assumption of risk does not exculpate a landowner for liability of ordinary negligence in maintaining the premises (Sykes v County of Erie, 94 NY2d 912).
The fact that the plaintiff may have been comparatively negligent does not negate the liability of the landlord who has a duty to keep the premises safe (Powers v St. Bernadette's Roman Catholic Church, 309 AD2d 1219).
Whether an alleged defect in a sidewalk, roadway, parking garage, etc. is sufficiently hazardous to impose liability is usually a question for a jury to resolve as it involves a case by case basis (Trincere v County of Suffolk, supra) since there is no minimal dimension test (Wiese v Town of Lancaster, 31 AD3d 1153).
Summary judgment is seldom appropriate in a negligence action (Vanderwater v Sears, 277 AD2d 1056).
For a defendant owner to prevail on a summary judgment motion regarding a slip and fall action, the owner is required to establish as a matter of law that the owner maintained the property in question in a reasonably safe condition, and that it neither created the alleged dangerous condition existing nor had actual nor constructive notice thereof (Mokszki v Pratt, 13 AD3d 709). Defendants have not met their burden.
While plaintiff's ultimate burden at trial is to prove that the defendant's conduct was the proximate cause of her injury (see Barker v Parnossa, 39 NY2d 926), here the plaintiff is required, in opposing defendant's summary judgment [*7]motion, to raise issues of fact that defendants created the alleged dangerous condition (under the assumption defendants owned, controlled, possessed, etc., the parking lot in question). Here, the plaintiffs have met their burden.
The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626). Thus, the burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062). Here, as noted, the burden on this summary judgment motion was on the defendants to establish in the fist instance that it did not create the condition or have notice of it (Giuffrida v Metro North Commuter R. Co., 279 AD2d 403). Defendants have not done this.
The defendants failed to present any evidence, let alone establish a prima facie case that they neither created the allegedly hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.
The plaintiffs in seeking summary judgment have also failed in their task to show that they are entitled to summary relief based on the record herein.
This Constitutes the Order of the Court.
Dated:ENTER:
_________________________________
J.S.C.
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