Hewitt v County of Chautauqua, N.Y.
Annotate this CaseDecided on September 6, 2016
Supreme Court, Chautauqua County
Timothy C. Hewitt, Plaintiff
against
County of Chautauqua, New York, RAYMOND R. WHITACRE, Individually and as Parent of BRENDYN J. WHITACRE, and BRENDYN J. WHITACRE, Defendants
K1-2013-1707
SHAW & SHAW, P.C.
Attorney for Plaintiffs
Jacob A. Piorkowski, Esq., of Counsel
WEBSTER & SZANYI, LLP
Attorneys for Defendant County of Chautauqua
Thomas C. Lewandowski, Esq., of Counsel
BOUVIER PARTNERSHIP, LLP
Attorneys for Defendants Raymond & Brendyn Whitacre
John P. DePaolo, of Counsel
Frank A. Sedita III, J.
Plaintiff has brought a personal injury lawsuit that defendants seek to dismiss by way of summary judgment. The principal question for the court to consider is whether there are any [*2]genuine and material issues of fact warranting a trial. Before addressing this question, it is worthwhile to briefly summarize the fundamental principles of law applicable in a negligence lawsuit.
A defendant is not liable for a plaintiff's injury merely by the happening of the accident itself. Liability requires proof of two essential elements: negligence and causation. The plaintiff must prove the defendant engaged in negligent conduct and also prove that negligent conduct, in contrast to just any conduct, was a substantial cause of the injury.
Negligence arises from the breach of a duty of care owed by persons to one other. Negligent conduct may consist of acts of commission (i.e. doing something that a reasonably prudent person would not have done) or acts of omission (i.e. failing to do something that a reasonably prudent person would have done). A finding of negligence also requires both a reasonably foreseeable danger to another (as opposed to a possible one) and conduct that is unreasonable in proportion to that danger.
The facts of this case are simple and straightforward. On September 15, 2012, fourteen year-old Brendyn Whitacre was raking detritus from the trailer of his father's truck and into a hopper at the County of Chautauqua transfer station (commonly referred to as the "dump"). The rake's metal headpiece suddenly detached, became airborne and travelled about twenty-five feet.According to plaintiff, the errant missile "beaned him on the head" as he was standing by his truck on the other side of the hopper.
Plaintiff was treated at the emergency room of a local hospital for a cut to the
crown of his head. The wound took ten stitches to close and he was discharged that day. Except for having the stitches removed ten days later, plaintiff underwent no additional medical treatment. Plaintiff missed only one day of work. A scar, which plaintiff described as, "not that visible unless I show you," remains underneath his hairline. Plaintiff is concerned about his professional appearance but has had no difficulties with respect to his activities of daily living and appears to have made a full recovery.
Plaintiff advances several theories of liability. Brendyn Whitacre is alleged to have negligently propelled the rake's headpiece, while the County is blamed for a host of negligent failures, including the failure to maintain the dump and its instrumentalities in a reasonably safe condition; the failure to inspect the premises for dangerous instruments; and, the failure to remove dangerous instruments.
The purportedly dangerous or defective instrumentality in question — the rake — was not recovered and has not been preserved. Plaintiff's discovery efforts, in large part, have focused on who owned the rake and whether the county supplied rakes to dump patrons. Brendyn and his father, Raymond Whitacre, deny they brought the rake to the dump and claim they do not know who owned it. Their testimony suggests they found the rake on the dump's premises. There is also deposition testimony by dump employees to the effect that tools, including rakes, were abandoned by dump patrons. With the exception of brooms, there is no proof the county purchased tools, including rakes, for use by dump patrons.
Regarding the use of the purportedly dangerous or defective instrumentality, Brendyn Whitacre testified the rake's headpiece did not move or jostle and that it did not feel loose. He also testified to using the rake in a "sweeping" or "leaf-raking" motion. Plaintiff claimed the Whitacre family was "furiously" raking but also testified there was nothing about the manner in [*3]which the suspect rake was being used that indicated to him that it was unsafe, or that would have caused him to foresee the accident. There is no actual proof — no eyewitness accounts, no admissions and no physical evidence — supporting the claim that a rake is an inherently dangerous instrument; that the rake used by Brendyn Whitacre was defective; or, that it was being used in a careless manner.
A defendant cannot obtain summary judgment simply by pointing out the lack of evidence supporting a plaintiff's causes of action (see, Bryant v. Estate of Gane, 51 Misc 3d 1220 (A), 2016 NY Slip Op. 50724U). Summary judgment is appropriate, however, when the moving party demonstrates there are no material issues of fact to be tried and that judgment may be directed as a matter of law (Brill v. City of New York, 2 NY3d 648, 650-651). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine, material issues of fact. Once this showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hospital, 68 NY2d 320, 324-325).
It is well-established that a landowner is not liable for an allegedly dangerous or defective condition on its property unless it affirmatively created the condition or had actual or constructive notice of it (see, Monastiriotis v. Monastiriotis, 141 AD3d 510; Anderson v. Weinberg, 70 AD3d 1436).
As previously noted, there is no proof that the rake was defective. Nor does the doctrine of res ipsa loquitur apply because, inter alia, there is no proof the county was in exclusive control of the instrumentality that caused plaintiff's injuries (see, Moore v. Ortalano, 78 AD3d 1652).
There is also no proof that the county had any notice of the wished-for defect in the rake. At most, the county might have had a general awareness that rakes were left behind on the premises at some time in the past. Such general awareness does not, however, constitute constructive notice (see, Pommerneck v. Nason, 79 AD3d 1716, 1717; Bellassai v. Roberts Wesleyan College, 59 AD3d 1125, 1126).
Plaintiff contends the County of Chautauqua "unquestionably created an unsafe condition" because it did not discard of the defective rake. Plaintiff also contends that there is an issue of fact regarding constructive notice because the county did not adequately inspect tools supplied to its patrons. These claims are premised upon the hypothesis that the county owned a defective rake. In other words, plaintiff's contention that there is an issue of fact regarding whether the county created the dangerous condition and/or whether it had notice of the dangerous condition is based not upon evidentiary facts, but upon two conclusory allegations:(1) that the county owned the rake and (2) that the rake was defective.
Only a bona fide issue raised by evidentiary facts, and not one based on conclusory allegations, will suffice to defeat a summary judgment motion (see, Nidds v. Procidano, 95 AD2d 912). A shadowy semblance of an issue, especially when its premised upon surmise and conjecture and devoid of evidentiary facts, is also insufficient to defeat a motion for summary judgment (see, Grullon v. City of New York, 297 AD2d 261; Cangro v. Schwartz, 288 AD2d [*4]418; Meyer v. McBrunigan Construction Co., 105 AD2d 774).
Similarly, mere conclusions, expressions of hope or unsubstantiated allegations do not constitute evidentiary proof in admissible form sufficient to defeat summary judgment and require a trial (see, Zuckerman v. City of New York, 49 NY2d 557, 562).
There might exist a triable issue of fact regarding constructive notice if there was any actual proof supporting plaintiff's claims that the county owned the rake and that the rake was defective. There is, however, no such proof supporting these claims and they amount to no more than speculation (see, Quinn v. Holiday Health & Fitness Ctrs. Of NY, Inc., 15 Ad3D 857; Billardo v. E.P. Realty Associates, 300 AD2d 523). Plaintiff's contentions are similarly speculative with respect to whether plaintiff's injuries were caused by anyone's negligent conduct.
A defendant stands liable in negligence only for breach of a duty of care owed to the plaintiff. The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court. The scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived. Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent (Sanchez v. State of New York, 99 NY2d 247, 253). Liability has historically been determined by what is probable, not what is possible. Many things are possible, but in order to recover for the injuries suffered as the result of an event, that injury must be shown to have been reasonably foreseeable, or a probable, natural or proximate result (1A NY PJI3d 2:12 at 244).
The county's duty of care included taking measures to provide reasonably safe premises and/or instrumentalities and, in the event it created a dangerous condition or received notice of it, to warn others of that dangerous condition and/or to promptly take measures to reduce or eliminate that dangerous condition. Brendyn and Raymond Whitacre's duty of care included using the rake in a reasonably safe manner. Neither the county nor the Whitacre clan were under a duty to protect other dump patrons from sudden, unforeseen and unexpected events that could not have been reasonably anticipated or prevented.
Nothing in the parties' submissions suggests that rakes, in general, are inherently dangerous. Nor, as previously noted, are there any facts proving the rake in question was defective. Other than a claim by plaintiff that the Whitacre family was "furiously" raking, the record is also devoid of any fact that, if believed by a trier of fact, would establish that Brendyn Whitacre was raking in a careless, irresponsible or unusual manner. The proof, to the contrary, shows that he was using a conventional rake in its customary manner. There is, in short, no proof that negligent conduct caused the headpiece to detach, become airborne and strike someone twenty-five feet away. Nearly three years of litigation has revealed nothing that would demonstrate that the mishap at the dump was anything more than an unfortunate but unforeseeable freak accident.
Defendants have made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine, material issues of fact. Plaintiff, in turn, has failed to produce evidentiary proof in admissible form sufficient to [*5]establish the existence of material issues of fact which require a trial of the action. Plaintiff has not met this burden of proof and there is no factual support for his plaintiff's theories of tort liability.
Based upon the foregoing, defendants' motions for summary judgment are granted and the complaint is dismissed.
The foregoing shall constitute the order of this court.
Dated: September 6, 2016
HON. FRANK A. SEDITA, III
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
