On one evening of 2006, the plaintiff and her sister attended a bonfire in the backyard of defendants’ home. The bonfire was created in a fire pit surrounded by a circle of stacked cobblestones that created a barrier around the fire. At approximately 1:00 A.M., when the fire had died down and consisted of mostly smoldering embers, plaintiff decided to leave the party. As she stood up from her chair, she tripped and fell into the fire pit.
As a result of her injuries, plaintiff alleged that defendants were negligent in, among other things, permitting a dangerous condition to exist around the fire pit, failing to provide adequate lighting in the vicinity of the bonfire and failing to warn and guard against the danger of people falling into the fire. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion, and the appeal by plaintiff ensued.
Supreme Court properly dismissed the plaintiff’s claim that defendants negligently maintained their property by failing to remedy divots in the yard and failing to provide adequate lighting in the area where plaintiff fell. In support of the motion, defendants tendered the deposition testimony and affidavits of defendants. The defendant claimed that the area around the ring of the fire was kept clear and level and that, on the evening of the accident, there were no holes, depressions or other defects in that area. He also testified that, although no lights shone directly on the area of the yard where the fire pit was located, there were lights on the back of the house and solar lights on the fence surrounding the yard. The defendant likewise confirmed that the area in the immediate vicinity of the fire pit was not uneven in any manner, and attested that there was sufficient lighting to observe the ground surrounding the fire. The Defendants also offered the deposition testimony of plaintiff, who admitted that she did not know what caused her to trip.
Records revealed that although the plaintiff described the defendants’ backyard as a regular yard with areas that went up and down, and her sister testified that the yard was not perfect, both specifically denied having observed any particular irregularities in the lawn in the area where plaintiff fell. Furthermore, given this lack of evidence that a defective condition existed in the location of the accident and plaintiff’s inability to identify how she fell or what caused her to trip, any claim that her fall was caused by a hole in the yard would be based on ‘nothing more than surmise, assumption and speculation. As the plaintiff failed to prove it more likely or more reasonable that the injury was caused by the defendants’ negligence rather than some other cause summary judgment was properly granted to defendants on this theory of negligence.
Plaintiff had been on the premises for hours prior to the fall and her deposition testimony reveals that the lighting conditions enabled her to make several observations of the lawn during that time. Moreover, plaintiff never testified that it was too dark to make any observations of the area or that a lack of lighting caused her to fall. Finally, plaintiff claims that defendants negligently failed to warn her of a dangerous condition such as the bonfire and to take appropriate measures to prevent her from falling into it. Initially, we note that the open and obvious nature of the bonfire obviated any duty on the part of defendants to warn of any hazards posed by it. Furthermore, while a landowner must undertake reasonable measures to prevent foreseeable damages when he or she permits a dangerous condition to exist on the property appeal dismissed, we find that plaintiff failed to raise a question of fact as to whether defendants fulfilled their duty in that regard.
Although plaintiff claims that defendants could have eliminated the danger by placing the chairs further away from the fire, it is undisputed that the chairs were movable, and plaintiff made the conscious decision to sit on the lap of a friend whose chair was located approximately two feet from the fire. Inasmuch as plaintiff has not identified any precaution or preventative measure that defendants could and should reasonably have taken under the circumstances to prevent her from coming into contact with the fire. Supreme Court properly dismissed this claim as well.
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