McKeever v City of Rye

[*1] McKeever v City of Rye 2012 NY Slip Op 50609(U) Decided on April 10, 2012 Rye City Ct Latwin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 10, 2012
Rye City Ct

William McKeever, Plaintiff,

against

The City of Rye, Defendant.



CV11-178



Plaintiff by Leavitt Kerson & Duane (Paul E. Kerson, Esq.)

Defendant by Law Office of Thomas K. Moore (Eric D. Feldman, Esq.)

Joseph L. Latwin, J.

This is a civil action for negligence in connection damages caused by a fallen tree. This matter was tried before the Court on March 7, 2012 and although the parties were granted additional time to submit post-trial briefs, none were timely received. At the beginning of the trial, the parties stipulated that a tree owned by the City of Rye fell on February 11, 2011. The plaintiff testified that he is the owner of 147 Grace Church Street in Rye. The tree in question fell and damaged the roof of his house creating holes, ripping down gutters and tearing off shingles. Plaintiff testified he needed to have a tarp deployed to prevent further damage from the weather and expended funds to repair the damage caused by the fallen tree. Plaintiff also claimed lost rent for the house claiming he had to credit the tenants rents for the time from the injury until the completion of repairs. On cross-examination, plaintiff conceded that he had not provided any notice of any defect or impaired condition of the tree before the tree fell.

Plaintiff also called the defendant's tree foreman who testified that he was the custodian of the tree inspection and maintenance records and that he had no record of any tree service calls in 2010 and 2011. On cross-examination, the tree foreman said the fallen tree was apparently healthy, showing no signs of decay or rot even after it fell. He also said there had been an ice and rain storm just before [*2]the tree fell and the tree had been uprooted by the storm.[FN1] During his driving through the City in the course of his duties, he did not notice any damage to, disease in, or threat from the tree before it fell.

The State and its political subdivisions are generally subject to the same duty of reasonable care imposed on private landowners. Preston v. State, 59 NY2d 997, 466 NYS2d 952 [1983]. It is well settled that the State, as a landowner, must maintain its "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" (Miller v. State of New York, 62 NY2d 506, 513 [1984], quoting Preston v. State of New York, supra). However, the State "is not an insurer against every injury that might occur on its property" Covington v. State of New York, 54 AD3d 1137, 1137-1138, 863 N.Y.S.2d 852 [3rd Dept 2008], and "[n]egligence cannot be presumed from the mere happening of an accident."

In 1976, the Court of Appeals set the standard of care in premises liability cases —"reasonable care under the circumstances" toward all persons on property. Basso v. Miller, 40 NY2d 233, 386 NYS2d 564 [1976] ; & Scurti v. City of New York, 40 NY2d 433, 387 NYS2d 55 [1976]. Foreseeability is an integral part of any analysis under this standard.

To establish foreseeability and a prima facie case against the owner, a plaintiff must be able to demonstrate that the defendant had: (a) created the condition that caused the accident; or (b) actual or constructive notice of the condition. Peralta v. Henriquez, 100 NY2d 139, 760 NYS2d 741 [2003]. To hold a property owner liable for injuries from a falling tree, one must establish that the property owner had actual or constructive notice of a defective condition of the tree. Ivancic v. Olmstead, 66 NY2d 349, 497 NYS2d 326 [1985] cert. denied, 476 US 1117, 106 S Ct 1975 [1986] ("[t]here is no duty to consistently and constantly check all trees for nonvisible decay"); Michaels v. Park Shore Realty Corp., 55 AD3d 802, 865 NYS2d 686, 687 [2nd Dep't 2008](liability will not be imposed [*3]unless the property owner has actual or constructive notice that a tree is unsafe); & Goldman v Severe, 31 Misc 3d 151(A) [App Term 9th & 10th Jud Dists 2011]. See generally, Briganti v. Rye City School Dist., 27 Misc 3d 1224(A), 911 NYS2d 691 (Table) [Rye City Court, 2010].

There is no claim that the defendant caused the tree in question here to fall. The City of Rye certainly did not create or design the tree [FN2] nor did it knock it down. There is no evidence proffered by the plaintiff that the defendant had actual notice of any decay or disease in the particular tree that fell nor of any other defect in the tree. Plaintiff offers no proof of any prior written notice to the defendant of a defective condition of the particular tree in question. Plaintiff merely offers that there was an absence of records of any tree work by the City for the years 2010 and 2011, despite several tree calls on the Grace Church Street during the previous several years. A landowner from whose property a tree fell and injured plaintiff was under no duty to consistently check all trees for non-visible decay and would be under an obligation to take reasonable steps to prevent harm if manifestation of decay was readily observable. Ivancic , supra & Goldman v Severe, supra. There was no indication of any visible defect or decay offered by plaintiff here. On the other hand, where the tree appears to be safe on ordinary observation, the municipality may not be liable. Quog v. Town of Brookhaven, 273 AD2d 287, 708 NYS2d 715, 716 [2nd Dep't 2000] (To put the municipality on constructive notice of a defective condition in a tree so as to give rise to the duty to discover and correct the condition, evidence must be presented that the dangerous condition of a tree was present for a sufficient length of time prior to the accident to permit the municipal employees to discover and remedy it); Asnip v State, 300 AD2d 328, 751 NYS2d 316 [2nd Dept 2002] and Leach v. Town of Yorktown, 251 AD2d 630, 676 NYS2d 209, 210 (2d Dep't 1998) (tree exhibited no visible, outward signs of decay and, thus, defendant Town did not have constructive notice of condition of tree prior to accident).

Unfortunately for plaintiff, the law does not provide a remedy for every occurrence. As New York State's Court of Appeals held in Sheldon v. Sherman, 42 NY 484 [1870]: [*4]

"There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew." Id. at 486.

Our society has organized itself based on the premise that a person is responsible for his or her own actions. Thus, if someone has a duty to do or refrain from doing something, but fails to do so, he or she may be liable to one injured by a breach of that duty. Absent a duty, there is no liability. That, however does not leave the injured party without a remedy. We have also organized our society to cover that risk by the creation of the opportunity to share the risk and spread the risk among others. We call that insurance. A party is generally free to purchase a contract of insurance that will reimburse him or indemnify him from that risk. The option to obtain insurance is a choice, not a requirement. If you choose to bear the risk of loss, you may refrain from purchasing insurance. If you choose to bear some but not all of the risk, you may do so by purchasing an insurance contract with policy limitations, such as a deductible amount or a cap on recovery. The cost of the insurance will vary with the amount of coverage and the extent of policy limitations. You can choose to pay the premium or bear the risk. Here, the plaintiff had the opportunity to protect himself from the risk of falling trees had he chosen to do so. That he did not do so or chose to forego a claim under a policy forms no basis to impose liability on another. He must live with the consequences of his choices.

The burden of proof rests on the plaintiff. Plaintiff must establish by a fair preponderance of the credible evidence that the claim plaintiff makes is true. The credible evidence means the testimony or exhibits that are worthy to be believed. A preponderance of the evidence means the greater part of such evidence. It does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has. The law requires that in order for the plaintiff to prevail on a claim, the evidence that supports his claim must appeal as more nearly representing what took place than the evidence opposed to his claim. If it does not, or if it weighs so evenly that one is unable to say that there is a preponderance on either side, then the question must be decided in favor of the [*5]defendant. PJI 1:23. A party fails to establish prima facie case of negligence when no evidence of any indicia of decay or disease to put plaintiff on notice of defective condition is presented. Ivancic, supra, & Golan v. Astuto, 242 AD2d 669, 662 NYS2d 576, 577 [2nd Dep't 1997] (defendants not liable because there was no evidence that they had any actual or constructive notice of defective condition before tree fell).

The defendant made a motion for summary judgment returnable after the trial date. As this decision renders a decision on that motion moot, that motion is denied as moot.

Plaintiff also moved pursuant to CPLR 3126(1) to preclude defendant from arguing the defendant properly maintained its trees. CPLR § 3126 permits a Court to sanction a party that refuses to obey an order for disclosure or wilfully fails to disclose information by issuing an order that deemed resolved for purposes of the action the issues to which the information is relevant or prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from producing in evidence thereon. There was no prior order sought pursuant to CPLR 3124. There was no motion timely made as this issue was raised in a pre-trial Memorandum and not by motion. There was no showing that the failure to supply tree maintenance records for 2010 and 2011 was wilful [FN3]. Absent an order requiring disclosure or proof of wilfullness, there is no basis for preclusion. In its trial order this Court required all motions addressing evidentiary issues to be resolved before the start of the trial. Accordingly, such a request was also untimely.

Even if a motion had been timely made, the remedy most likely to have been imposed would have been a conditional preclusion order prohibiting the defendant from introducing evidence of its maintenance. Precluding defendant from arguing about that it properly maintained its trees would have made no difference. It was the plaintiff who introduced the defendant's tree maintenance records and the defendant introduced no records or testimony concerning tree maintenance, except on cross examination of plaintiff's witness. Even then, the absence of tree maintenance would still not establish defendant's liability absent some proof that [*6]the tree in question was damaged or defective or that defendant had created that condition or that it had actual or constructive notice of the condition. The lack of maintenance simply does not establish the tree was damaged or defective or that defendant had notice of that condition.

Accordingly, it is,

ORDERED and ADJUDGED that the complaint is dismissed, and it is further

ORDERED and ADJUDGED that judgment be awarded to defendant..

April 10, 2012_________________________

JOSEPH L. LATWIN

Rye City Court Judge

ENTERED

__________________ Footnotes

Footnote 1: Apparently, this tree was no Ent and neither marched away from this storm nor stormed Saruman in Isengard. But, of course, Rye is in Westchester, not Middle Earth. Nevertheless, some odd and scary creatures have been reported at Playland.

Footnote 2: J. Kilmer, Trees (1913) in which the poet says "Poems are made by fools like me, But only God can make a tree."



Footnote 3: The defendant's tree foreman testified that the records defendant produced were all the records. The lack of records for 2010 and 2011 was explained by the lack of tree service calls.