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On 27 May 2008, plaintiff, a sanitation worker with the New York City Department of Sanitation,

On 27 May 2008, plaintiff, a sanitation worker with the New York City Department of Sanitation, sustained injuries as a result of a trip and fall accident over a 2 1/2 foot long bundle of tree limb clippings which were placed with the garbage cans in front of defendant’s house.

Thereafter, plaintiff filed a personal injury action and seeks to recover damages for the injuries he sustained.

On 6 January 2009, the summons and complaint were filed. The issue was joined by service of the defendant’s answer on 11 February 2009.

Defendant now moves for an order granting summary judgment on the issue of liability and dismissing the complaint.

The Ruling:

A defendant who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Under the rules, the proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. A defendant owner or entity who is responsible for maintaining a premises, who moves for summary judgment in a slip-and-fall or trip-and-fall case involving the property, has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time, to discover and remedy it. To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it.

Here, the court finds that the defendant’s deposition testimony was sufficient to demonstrate, prima facie, that the defendant-homeowner did not personally place the branches in front of her house. In addition, the record shows that defendant was not told that the clippings were in front of her house nor was there any indication of how long the bundle was there. Thus, the defendant made a sufficient showing, prima facie, that she had no constructive notice of the allegedly hazardous condition, as it was a transient condition, which she stated was neither visible nor apparent for a sufficient length of time prior to the accident to permit her to have addressed it.

Moreover, the courts have held that although a property owner has a duty to maintain his or her property in a reasonably safe condition, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous. Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances. 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 is distracted.

Here, the tied up bundle of tree clippings which is not in itself, an inherently dangerous condition, was placed in close proximity to the defendant’s garbage can which had been placed in front of defendant’s house for refuse collection. A sanitation worker who is collecting garbage through the reasonable use of his senses would ordinarily be on the lookout and seeking items of refuse put out in front of homes for collection. The bundle in question was 2 feet long and as it was placed with the rest of the refuse it was open and obvious. Thus, although it was not a well-lit area, this particular bundle having been placed with the defendant’s garbage can cannot be considered to be a trap for the unwary. The court finds that the defendant made a sufficient showing prima facie that the alleged condition that caused the plaintiff to trip and fall was open and obvious and not inherently dangerous.

Further, the landowner need not guard against hazards inherent in the worker’s occupation, hazards caused by the condition the worker is engaged to repair, or hazards which are readily observed by someone of the worker’s age, intelligence, and experience.

The court finds that plaintiff failed to raise a triable issue of fact in its opposition.

Although plaintiff claims that the defendant was negligent as a matter of law for violating New York City Rules, the Rule cited by plaintiff (although the violation of a statute or ordinance may be an indication of negligence) was not enacted to protect the safety of pedestrians but rather as means to prevent the spread of Asian Long-horned Beetles.

In addition, plaintiff failed to show that there was a question of fact whether the defendant placed the bundle at the curb, whether she was told about it or how long the bundle was in the area.

Henceforth, defendant’s motion for summary judgment is granted and plaintiff’s complaint is dismissed.

If you are in a similar situation as the above, have a free legal consultation with a Queens County Personal Injury Lawyer at Stephen Bilkis & Associates. We offer you our assistance by answering any and all of your legal concerns. Contact us and talk to a Queens County Trip and Fall Lawyer or a Queens County Slip and Fall Lawyer, among others.

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