In a personal injury action, a 50-year old sanitation worker with the New York City Department of Sanitation seeks to recover damages for personal injuries he sustained as a result of a trip and fall over a long bundle of tree limb clippings which were placed with the garbage cans in front of a house.
The owner of the house, which was named defendant in the action, asks summary judgment on the issue of liability and dismissal of the complaint. In this case, the house owner contends that she did not create the transient condition by placing the bundle in front of her house nor did she have actual or constructive knowledge of it, and therefore did not have a legal duty or responsibility to remedy the alleged hazardous condition.
The sanitation worker testified that he was involved in an accident at approximately 9:30 p.m. At the time of the accident he was working in his position as a sanitation worker with the New York City Department of Sanitation assigned to collect house-to-house refuse. He stated that there was “a pile of wood from trees or shrubs, bushes” and that the pile was on the grass between the sidewalk and the curb. He said that while he was walking to pick up garbage, his feet caught on the pile of wood. He tripped and fell. The sanitation worker said that it was dark at the place of accident and that he was not able to see the bundle of wood. The wood, he said, was placed near the proximity of the homeowner’s gate but that he never saw the homeowner place the bundle of wood in that place.
As a result of the accident, the sanitation worker sustained a bone injury at his left elbow.
The homeowner asserted that there is no evidence in the record which shows that she put the tree branches out in front of her house. In fact, the record shows that the homeowner testified that she did not put them out nor was there any proof that her gardener, who comes to her house thrice a week, put the bundles there or anyone else at the direction of her house.
The defendant-owner who is responsible for maintaining the 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 homeowner to discover and remedy it.
In this case, upon review and consideration of the homeowner’s motion, the court found that the homeowner’s deposition testimony was sufficient to show that she did not personally place the branches in front of her house. In addition, the record shows that she 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 court said, the homeowner made a sufficient showing 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.
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.
Being involved in a personal injury lawsuit arising from negligent acts of someone else is difficult. Stephen Bilkis & Associates and our Trip and Fall Attorneys will make sure you and your rights are protected at all stages in the case. Our offices are conveniently located throughout the NY Metropolitan area.