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In 2005, the jury rendered a decision awarding the complainant of damagesamounting $300,000 in past pain and suffering and $700,000 in future pain and suffering over 10 years. The owner of the pit bull as opponent however moved to reduce the award on both past and future pain and suffering on the ground that it was excessive.

The testimony of the complainant, his expert physician, and the opponent’s expert physician establishes that the complainant suffered and continued to suffer at the time of the trial a combination of injuries that diminished his enjoyment of life. One component of the personal injuries is his emotional distress from the dog’s violent attack, including intense fear immediately before and during the attack, flashbacks, and an ongoing, intense phobia of dogs that causes him to avoid all dogs. Another element is his nightmares and consequent fatigue.
The physical elements of the complainant’s pain and suffering obtained from the dog bites themselves, to both his abdomen and his penis. The raised scar and nerve damage to his penis cause both pain and loss of sensation and consequent sexual dysfunction, which was total for several months following the attack and reduced his sexual functioning permanently. The physical consequences in turn aggravate his emotional anxiety, feelings of inadequacy, and lost self-esteem in his line of work, intimate relations, and sexual performance.

The complainant testified that the opponent’s pit bull came at him at great speed, jumped on him, and attempted to bite his throat. When the dog started biting him, he thought the worst. His clothes were torn apart and became bloody. He also observed an open and bleeding wound in his abdomen. When the dog bit his abdomen and then his penis, the dog’s teeth sank in and stayed embedded in his pants. The complainant was stunned by shock at the rapid sequence of events and anxious and in pain due to the bleeding.

The complainant immediately brought and admitted to the hospital, where he was examined and treated by several physicians and remained overnight. His wounds were cleaned and he was administered with antibiotics intravenously, rabies injections, and pain medication. He was transported to his home the next day with instructions to continue oral antibiotics and pain medication, and returned for follow-up examination and treatment three days later.
The medical records detailing the complainant’s emergency condition and treatment were admitted at the proceeding without objection. The photographs of the complainant’s abdomen during the first month after the dog’s attack, as well as photographs of the current scars to the complainant’s abdomen and penis from the dog’s attack were also admitted without objection.
The puncture wounds to the complainant’s abdomen did not close for approximately three months. During the aforementioned period, he experienced a great deal of pain and pus oozing from the wounds to both his abdomen and his penis.

The complainant was a taxi driver and he attempted to drive again but he was unable to endure the pinching pain. As a result, he remained at home for five to six months.
The complainant’s surgeon testified that dog bites are the worst and dirtiest bites except human bites. A dog bite is a contaminating wound because of the bacteria in a dog’s mouth. For that reason, the complainant’s dog bites were not stitched and closed, but were left open to drain out.

When the complainant returned to the hospital, he exhibited a pool of blood from internal bleeding collected under his skin in his lower right abdomen. He was in pain and suffered from nausea and diarrhea. When the dog bites penetrated into the complainant’s blood vessels, the bacterial infection from the bites spread from the wound sites to his blood stream, which increased the wounds’ size and the loss of tissue and inhibited healing.

Based on records, the penis has very little fat and consequently very little cushioning against a puncture wound from an external force. The skin on the penis is extremely thin, with the nerves directly underneath, so a puncture easily penetrates to damage them. The photograph of the current scars to the complainant’s penis from the dog’s attack shows not just a crush injury to his skin, but damage underneath and thus to his nerves there.

Upon the complainants surgeon’s examination two months before the proceeding, he found out that the complainant still suffers from pain in his abdomen, numbness along his penis, erectile dysfunction, fear of dogs, and associated depression. The scar on his lower right abdomen was hyper pigmented, with thickness under the skin extending wider than the scar itself. Both the scar and the wider area were painful upon palpation. The complainant surgeon’s findings regarding the scar and pigmentation on the complainant’s penis were consistent with the photograph, showing decreased pigmentation and a raised, thick scar along the shaft.

The complainant’s loss of sensation and pain during sexual intercourse are enough to cause him to lose his erection. The physiological causes, however, in turn trigger memories of the dog’s attack and the complainant’s fear of dogs. The mental and emotional distractions compound the complainant’s inability to maintain an erection.

The opponent’s expert was also a plastic and reconstructive surgeon. Even if he has less experienced with dog bites, he supplemented the first surgeon’s testimony. When the opponent’s expert examined the complainant, he found eight vertical parallel scars on the complainant’s abdomen, at least one of which was hard. The abdominal scars caused the complainant deep pain and discomfort, particularly when touched or when he moved that part of his body. He was self-conscious and became upset about the scars on both his abdomen and his penis in intimate situations and when exposing those parts of his body.

The opponent’s expert also described how the tubes in the penis that permit it to become erect are very close to the surface where they are susceptible to damage, and if nerve damage does not heal within a year, the injury is permanent. He corroborated that the complainant’s pain and loss of sensation in his penis disrupted sexual functioning. The complainant’s experienced difficulty achieving an erection because his penis would start hurting.

The opponent’s expert pointed out that a plastic surgeon encounters the psychological aspects of injuries that alter patients’ appearance or functioning.

Consequently, the complainant presented evidence of his injuries and resulting pain and suffering uncontroverted by the opponent. The jury credited his testimony, the surgeon’s testimony, and the opponent’s expert’s testimony insofar as it corroborated and supplemented the other testimony in the complainant’s favor and awarded past and future damages that do not so exceed amounts supported by a fair interpretation of the evidence as to require disturbing the jury’s determination. Although the owner of the pitbull now characterizes the complainant’s injuries as minimal, no medical testimony, even presented by the opponent, supports that assessment.

The court stated that the jury’s $300,000 award for past pain and suffering and $700,000 award for future pain and suffering were not so excessive as to materially deviate from reasonable compensation. Given the complainant’s unique combination of injuries, the jury was uniquely qualified to assess his damages and set its own benchmark. Therefore the court denies the opponent’s motion to reduce the award.
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The Tower Insurance Company of New York is the plaintiffs in this case. Rose Ventures, LLC and Tremayne Lampktn and Wendalyn Lampktn are the defendants of the case. The Supreme Court of the State of New York in New York County is presiding over this case.

Plaintiff’s Argument
This is an action for declaratory judgment. The plaintiff seeks a declaration stating that it does not have the obligation to defend or indemnify the defendant Rose Ventures LLC in a trip and fall action against the company taking place in the Queens County Supreme Court and another trip and fall action taking place in Kings County Supreme Court. The plaintiff states that the motion for summary judgment should be granted because they were not notified of the accident in a timely fashion, which is a violation of the insurance policy.

Defendant’s Argument
Rose opposes the motion made by the plaintiff on the ground that the disclaimer was premature and not valid against its co-defendants. The defendant Rose further argues that the motion should be denied because there is reasonable belief of non liability in the cases against them. The defendant further maintains that there has been no prejudice that has risen from the notice being served late. It is also noted that the duty to defend is broader than the duty to indemnify and the plaintiff should not abandon the defense of Rose in the litigation against them.

Case Discussion and Decision
The policy that is provided by the plaintiff, Tower requires that a written notice of an occurrence or offense that may result in a claim be provided to the company as soon as practicable. The Queens lawsuit in question was commenced in November of 2005 and the other lawsuit in Kings County was commenced in November of 2006.

Tower did not receive notice of the first accidentuntil December of 2005. A disclaimer was issued by Tower based on the late notice of the claim. Tower maintains that Rose knew of the accident in the late part of May or early part of June in 2004 based on a letter issued in may of 2004 from a law firm that is representing the plaintiffs in the case. The letter stated that a lawsuit might take place in the future. Rose ignored this letter. A second letter was sent on the 14th of July, 2004.

These letters from the first case offer significant proof that the defendants failed to notify the plaintiffs of the pending case in a timely fashion. Rose did not offer any reason for not responding to the letters requesting more information about the accident.

For these reasons the court rules in favor of the plaintiff. A summary judgment in the case is declared in favor of the plaintiff and it is declared that the plaintiff does not have a legal obligation to defend or indemnify the defendant in a trip and fall action in Queens County or the trip and fall action in Kings County Supreme Court.
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The plaintiff in this case is Mildred Fazzolari. The defendants in this case are C E. T and Pegeen T. M. The Supreme Court of New York in Kings County is overseeing this particular matter. The main issue brought before the court in this case is whether the defendants, two family homeowners, are liable to a pedestrian who was caused to fall on a broken and protruding wire fence and raised brick that was surrounding a tree well located on the sidewalk that abuts the property that they own. The homeowners have resided in the property for sixteen years and did not repair or maintain the wire fence or bricks, which were all present when they bought the premises.

The defendants move for summary judgment dismissing the complaint made by the plaintiff Mildred Fazzolari.

Case Background
The defendants own a premises located at 924 84th Street in Brooklyn, New York. In front of the premises there is a tree well located on the sidewalk that is adjacent to the curb. The tree well contains a tree, a wire fence that surrounds the tree and brickwork that surrounds the fence.

On the fifth of June, 2008, the plaintiff fell in front of the defendant’s premises. The plaintiff states that the protruding wire from the fences snagged her pants and a protruding brick contributed to her stumble and fall. The plaintiff testified that she was walking and her pants leg on the right side got caught on some fencing that was sticking out at a point. When I tried to move forward there was a raised brick that I tripped over and I fell down.

The defendants testified that the bricks and fence around the tree were present when he purchased the premises sixteen years ago. He testified that he did not make any repairs to the bricks or fence the entire time that he owned the property.

Following the accident the defendants have had the sidewalk in front of the premises replaced and the bricks and fence have been replaced as well.

Case Discussion and Decision
A summary judgment in any legal matter can only be granted when there are no triable issues of fact in the case. The Court of Appeals has generally ruled that the liability for injuries sustained on a property as a result of negligent maintenance or the existence of dangerous and defective conditions falls to the municipality and not the abutting landowner. However, there are cases where this general rule is not applicable.

In this particular case the plaintiff has not established any triable issues of fact to support her case. While it is quite clear that the maintenance of the particular area was quite poor, the plaintiff cannot offer enough support for her particular case. For this reason, the court must grant summary judgment in favor of the defendant. The complaint against the defendants is dismissed.
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In this case the plaintiff and respondent is an infant, Norma Tesmer. She is represented by Monica Tesmer who is her natural guardian and parent. The defendants and appellants in the case are David Colonna and Terry A. Weese. Norma Tesmer, the plaintiff and respondent is represented by the law offices of Cellino & Barnes P.C. from Rochester. The counsel for the plaintiff is Sareer A. Fazili. The defendant is represented by the law offices of Hiscock & Barclay, LLP from Buffalo. The counsel for the defendant is Brian G. Manka. This case is being heard in the Appellate Division of the Supreme Court, Fourth Department in New York. The judges present in the case are Martoche, J.P., Carni, Lindley, Centra, and Green, JJ.

Case History
The plaintiff brought forth this case against the defendants when her daughter was bitten by a dog when at the home of Terry A. Weese. The home in which this incident took place was owned by the defendant David Colonna.

The complaint that is issued by the plaintiff states that the defendants are both liable for damages under common law negligence. It also states the defendants were in violation of section 119 of the Agriculture and Markets Law as well as the local leash laws.

This case is an appeal from defendant David Colonna for the original verdict in the Supreme Court case that held him liable for the damages and injuries sustained by the infant while on a property that he owned.

Court Discussion and Decision
When reviewing this particular case we find that the original Supreme Court who ruled in this particular case has made an error. In the original case the defendant, David Colonna made a motion for summary judgment to dismiss the complaint that had been made against him. The Supreme Court denied this motion and this was not the correct ruling.

It is well known that in cases that involve damages and injuries sustained from a dog bite the plaintiff is only allowed to recover damages from the theory of strict liability. There is no option to recover from common law negligence. There are several cases that have been ruled in this matter. These include the cases of Petrone versus Fernandez, Bard Versus Jahnke, and Collier versus Zambito.

In addition, the complaint stating that the defendant was in violation of the Agriculture and Markets Law section 119 and in violation of local leash laws is irrelevant. These particular violations are only some evidence of negligence and cannot be imposed as a basis of liability for injuries that are sustained from a dog bite.

For these reasons we feel that the original order made by the Supreme Court was in error. We are reversing the original order and dismissing the complaint that was made against the defendant Colonna. In addition, we have searched the records of the case and are also granting a summary judgment in favor of the other defendant, Weese to dismiss the complaints that were made against her as well, even though she has not sought this relief. We hereby grant the appeal in this matter and reverse the original order from the case.
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This is an appeal case that is being heard in the Supreme Court of the State of New York in the Appellate Division of the Fourth Judicial Department. The judges that are present for this case are Martoche, J.P., Lindley, Carni, Centra, and Green, JJ.

The case involves a personal injury action against David Colonna. The original case was held in the Supreme Court of Orleans County. The order from the Supreme Court of Orleans County denied the motion of the defendant David Colonna for a summary judgment to dismiss the complaint that was made against him. The original order also approved the complaint made against Terry A. Weese for damages for injuries.

The defendant is represented by the law firm of Hiscock & Barclay, LLP from Buffalo. His counsel is Brian G. Manka. The plaintiff is represented by the law firm of Cellino & Barnes, P.C. from Rochester. The counsel for the plaintiff is Sareer A. Fazili.

Court Order
This Court is approving the appeal that is being made by the defendants. The original order from the Supreme Court of Orleans County will be overturned without costs. The motion for summary judgment in favor of the defendants is being granted and the complaint against both defendants is now dismissed.

Case History
The plaintiff had originally made a complaint seeking action against the defendants for damages that were sustained by her infant daughter when she was bitten by a dog. The dog was owned by the defendant Terry A. Weese. The incident in question occurred while the infant daughter was inside the home of the defendant Terry A. Weese. The home that Weese resided in was owned by the other defendant in the case David Colonna.

The complaint is amplified by the bill of particulars that was issued. The bill of particulars states that both the defendants are liable in this case for common law negligence. It also states that the defendants were in violation of section 119 of the Agriculture and Markets law and violated the local leash laws as well.

Court Discussion

When reviewing the case the Court has decided that the original order that was made by the Supreme Court of Orleans County was in error when they denied the granting of summary judgment in favor of the defendant Colonna. It has been established that in an action for damages that involve a dog bite a plaintiff can only recover damages on the theory of strict liability and may not recover damages for common law negligence. It is further found that the argument that the defendants were in violation of section 119 of the Agriculture and Markets Law and the local leash laws are irrelevant in this matter. The reason is that in a case such as this these violations are only some evidence of negligence and this is not a basis for imposing liability.

For these reasons we are reversing the previous order that was made in the Supreme Court of Orleans County. The court has also reviewed the other facts of the case and has dismissed the complaint that was made against the defendant Weese as well even though defendant Weese has not sought this relief in judgment.
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This case is being heard in the Supreme Court of the state of New York located in New York County. The plaintiff in the case is Dolores Marsh. The defendants in the case are Judy Licht and Jerry Della Femina. The judge overseeing the case is Joan A. Madden.

The plaintiff in the case has made a motion for a leave to serve and file an amended complaint in this case to seek punitive damages. The defendants oppose this motion.

Case Background
This is an action to seek damages that are connected to an incident involving a dog bite. The plaintiff states that the defendants are negligent and should be held strictly liable for her injuries as they knew that their dog had vicious tendencies.

The incident in question occurred on the fourth of August in 2003 when the plaintiff was in attendance at a party thrown by the defendants. When the plaintiff was standing in the pool area at the defendant’s home, she was bitten on her ankle by their dog, a cockapoo named Oreo.

The defendants state that they had put Oreo in their bedroom before any guests arrived at their home. They also state that they did not warn their guests that a dog was present in their home and they did not instruct the staff or family members to return the dog to the bedroom if she were to get out. The defendants state that their property is surrounded by an electric fence, but they only sometimes use the collar on their dog. Both defendants state that they did not see Oreo outside while the party was going on. Defendant Licht did state that a bartender told her that Oreo was sleeping under a table just prior to the incident in question.

Plaintiff’s Evidence
The plaintiff has submitted medical reports that show she received a laceration on her lower left leg that was approximately 4 centimeters in length. The laceration pierced through her skin and her muscle. The plaintiff also suffered from nerve damage, a bone infection, and has a permanent scar.

Additionally, the record shows that before this particular incident Oreo had bitten 3 other individuals either at the defendant’s home or in the vicinity of their home. Pietro Faulisi, who works for the United States Postal Service states that he was bitten on the right leg by Oreo on the 27th of March in 1998. He states that he went to the hospital and received a shot, but did not get any other treatment for the injury. Steven Noethiger, was also bitten by the dog when delivering a package to the home. Andrea Pearlman states that the dog bit her when she walked by on the beach near the home of the defendants.

The plaintiff is seeking to amend her initial complaint to add punitive damages. She states that the defendants disregarded her safety as they did not take any precautions in order to protect their guests.

Court Decision
After reviewing the case facts, the court has decided there is enough evidence to show that the defendants had knowledge of the previous incidents involving their dog. The court is ruling in favor of the plaintiff in this case and granting the right to amend her previous complaint to add punitive damages.
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This case is being heard in the Allegany County Supreme Court in the State of New York. The plaintiff in the case is Patricia O’Brien. The defendants in the case are Mark and Carol Amman. The plaintiff is represented by Ethan Lyle, Esq. The defendants are represented by Jam P. Egger, Esq. The judge overseeing the case is James E. Euken.

Allegations
The allegations that are set before the court are that the defendants own three Labrador retrievers and one of them bit the plaintiff on the 2nd of August, 2007. The plaintiff was on her early morning jog when she encountered the defendant Carol Amman walking her dogs. The defendant was on the opposite side of the street from the plaintiff, but the dogs pulled her towards the plaintiff and one of them proceeded to bite her on the right wrist. The plaintiff went to the hospital for the wound and then was later put in the hospital when the wound became infected.

Defendant’s Argument
The defendant has made a motion for a summary judgment in the case. The defendants present evidence to support their motion in the form of an affirmation from their attorney. The defendants state that they are entitled to a summary judgment for two reasons.

The first reason is that on the bill of particulars presented to the court the plaintiff does not prove that the defendants knew or should have known that their three dogs had vicious tendencies. Without this proof they cannot be held liable.

The second reason given by the defendants is that the plaintiff is not sure which one of the dogs bit her. Without being able to prove which dog it was, the case against them must fail.

Case Discussion and Verdict
The court has determined that the argument provided by the defendants that because the plaintiff does not know which dog bit her that the case must be drop, the court rules in favor of the plaintiff, to an extent. There is no argument that all of the dogs in question are owned by the defendants. It is also not argued that one of the dogs bit the plaintiff. For this reason, the argument has no merit.

The second argument of the defendant that shows the dogs have lunged inappropriately at people, but this evidence is not enough to raise an issue of fact towards the viciousness of the animal, is a bit more difficult to determine.

Carol Amman has stated that the dogs have lunged at people and barked at people. This may or may not be considered to be threatening behavior. For this reason the court cannot hold that as a matter of the law that the lunging at a person is not a threatening behavior. For this reason the court has determined that a summary judgment in favor of the defendant Carol Amman is denied.

However, in the case of the defendant Mark Amman, there is no evidence submitted to show that he knew about the vicious tendencies of the dogs. For this reason, the court is granting the summary judgment in favor of the defendant Mark Amman.
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A lady was going down the stairs from the second floor of a building to the first floor lobby in a building located at 33-02 Skillman Avenue, Long Island City, New York. When she got to the last step, her left foot landed in a crack on the last step. Her foot got twisted in the crack; she lost her balance and fell. She brought this case for damages for the injuries she sustained as a result of her slip or trip and fall. She sued the owner of the building as well as the corporation that manages the building for the owner.

After the plaintiff was deposed, the building owner and building manager both filed a motion for summary judgment asking that the court dismiss the complaint at against them.
The Court first stated that a motion for summary judgment may only be granted when there are no more issues of material fact that need to be tried. It is the party who moved for summary judgment who has the burden of showing that he is entitled to the summary judgment as a matter of law because there is enough evidence to show that there is an absence of material facts that still need to be tried.

After the person seeking the summary judgment proves that he is entitled to the judgment, the complaining party then bears the burden of proving that there are still material issues of fact that need to be tried by the court.

The Court also reiterated the rule that liability for a dangerous or defective condition on real property usually lies with the party who has ownership, occupancy, control or special use of the real property. When the suit involves a claim of negligence, the complaining party must show that there is a duty of care; and that the party being sued has breached the duty of care; and that the breach of the duty of care caused the damages to the complaining party.

First, the building manager and the building owner allege that the lady did not know what exactly caused her to trip and fall down the stairs. The Court perused the transcript of the deposition and it is clear from the answers of the lady that she knows that she stepped on a crack on the last step of the flight of stairs leading the second floor of the building down to the lobby. She testified that because she had stepped on the crack, her foot got twisted at the ankle; she lost her balance; and fell down the stairs. The Court then ruled that the lady had sufficiently alleged the cause of her trip and fall.

Second, the building manager and the building owner allege that the lady failed to testify that the defendant created the defect or dangerous condition or, that they had actual or constructive notice of it. The Court also rejected this argument. The Court ruled that the motion for summary judgment submitted by the building owner and building manager had no evidence to support their claim that they had no notice of the defect or dangerous condition. The Court suggested that building owner and the building manager should have adduced evidence as to when they last cleaned or inspected the last step of the stairs.

Third, the building manager and the building owner assert that the crack on which the lady tripped and fell is too trivial to be actionable. The Court also rejected this argument. The issue of a defect being too trivial to be actionable is a proper issue of fact that should be determined at trial. Also, the Court said that the building owner and the building manager should have presented evidence that the crack was indeed too trivial. But they presented no such evidence.

The Court ruled then that the motion for summary judgment should be denied and the case remanded for trial.
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In February 2011, a woman from New York initiated an action seeking damages for personal injuries allegedly sustained as a result of a dangerous condition that existed in the parking lot of the Defendant. The Plaintiff subsequently amended her summons and complaint to add a cause of action for loss of services by her husband.

The Plaintiff underwent an Examination before trial. At her deposition, the Plaintiff testified that while she was passing through in the parking lot of a mall, she was caused to trip and fall due to a defective and dangerous condition on a speed bump. The Plaintiff testified that, prior to the accident, she saw a speed bump that was broken and cracked with white paint on it. On the day of the incident, the weather conditions were dry and sunny. At the time of the accident, the Plaintiff testified that she was wearing sneakers which went up to her ankle. As she was attempting to walk over the speed bump, the Plaintiff testified that she tripped on something. She testified that her left foot got stuck, the sneaker came off, and she went “flying”, falling forward. The Plaintiff extended both her arms to break her fall and her body came into contact with the pavement of the parking lot.

After the Plaintiff fell, she testified that she went to a security guard and remained there for approximately 15 minutes. Thereafter, the security guard requested to see where the Plaintiff fell. According to the Plaintiff, when she showed the security guard the spot where she fell, he began kicking gravel into the crack that was located on the speed bump.

The Defendants rely on the Plaintiff’s testimony in support of their argument that the condition was open and obvious, thereby freeing the Defendants from liability. Specifically, the Defendants cite the Plaintiffs sworn testimony indicating that she saw the speed bump approximately two car lengths away from her prior to the accident and made a conscious decision to attempt to walk over the speed bump anyway. The Defendants further submit that the condition was trivial in nature and not inherently dangerous.

In support of the motion, the Defendants also submit the testimony of the project manager for the Defendant. He testified that he first received notification of the Plaintiff’s accident from an incident report that was filled out by the mall security personnel. The security personnel further testified that, after receiving notification of the incident, he inspected the area where the Plaintiffs accident occurred and observed a speed bump that was painted white with a crack in it.

The security personnel testified that he conducts inspections of the area of the parking lot where the accident occurred on a weekly basis. He testified that prior to the Plaintiff’s accident, he had no notice of the condition of the speed bump, nor had there been any incidents of people tripping and falling on the speed bump.

The Defendants also rely on the testimony of the maintenance supervisor for the Defendant, who testified that everyday he was in the parking lot where the Plaintiff’s accident occurred. He testified that if a condition that needed repair was detected, he would either repair it himself or hire an outside contractor to repair the condition.

In light of the Plaintiff’s testimony that the speed bump was readily observable and the testimony of the witnesses on behalf of the Defendants, the Defendants urge that the Plaintiffs’ complaint should be dismissed.

The Plaintiffs’ counsel argues that it can be inferred from the appearance and nature of the broken portion of the speed bump that the condition did not occur overnight, but rather, was one which took time to develop and should have been readily observable by the employees of the Defendants. The Plaintiffs’ counsel references the photographs taken of the defective condition which shows a significant crack on the speed bump.

The Affidavit of the Plaintiff, states that the cracked portion of the speed bump appeared to have been painted over with white paint. The Plaintiff states in her affidavit that the cracked, missing portion of the speed bump appeared to have been approximately 12 inches by 12 inches which created a tripping hazard. The Plaintiff also submitted an affidavit which states that a large portion of the asphalt was missing from one end of the speed bump, creating a tripping hazard.

Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury. It is well settled that a landowner is under no duty to warn of a dangerous condition that is open and obvious. However, recent case law on this issue is clear that proof that an alleged dangerous condition is open and obvious does not preclude a finding of liability against the landowner.

Here, based upon the Court’s review of the photographs of the speed bump, which the Plaintiff, confirmed fairly and accurately represented the accident site, and the Plaintiff’s description of the circumstances surrounding the accident, the Defendants failed to establish that the alleged defect was trivial and, therefore, not actionable. While the speed bump in and of itself may have been open and obvious, there is an issue of fact as to whether the crack in the speed bump, large enough for the Plaintiff’s sneaker to get caught in, was in fact readily observable. Even in the event the open crack in the speed bump was readily observable, the issue is a factual inquiry as to the extent of the Plaintiff’s contributory negligence.

The Defendants also speculate that they were not on notice of the defective condition of the speed bump. The Plaintiffs claim that the Defendants had constructive notice of the defect as it was visible and apparent and existed for a sufficient length of time prior to the accident that it could have been discovered and corrected.

The evidence is insufficient to permit the jury to draw the necessary inference that a dangerous condition existed for a sufficient length of time prior to the accident to permit the Defendants’ employees to discover and remedy the condition. The mall security testified that, after the Plaintiff’s accident, upon inspection of the speed bump, he observed the crack. He also testified that he inspects the parking lot on a regular basis and had not seen the defective condition prior to the Plaintiff’s accident. It is reasonable to infer that a crack large enough for a pedestrian’s sneaker to become trapped in should be readily visible to the employees who are responsible for detecting such defects. As such, the Court cannot find, as a matter of law, that under the particular facts and circumstances presented in this case, the Defendants did not breach their duty of ordinary care to maintain the parking lot in a reasonably safe condition.

It is well settled that the open and obvious nature of the allegedly dangerous condition does not negate the duty to maintain the premises in a reasonably safe condition but, instead, bears only on the injured person’s contributory negligence.
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In 2008, two neighbors from Kings County New York were summoned by a pedestrian who sustained personal injury when a broken protruding pointed wire fence and a raised brick which were surrounding a tree well on the sidewalk, adjacent to the curb adjoining the homeowners’ property caused her to fall. The homeowners, in their sixteen years of owning the property, never repaired or maintained the wire fence or bricks.

Records revealed that both defendants testified that the bricks around the tree were present when they purchased the house 16 years ago and that he had performed no repairs, maintenance or modifications prior to the accident. Both also testified that they did not place this small fence around the tree and they have no idea as to who may have placed this fencing. The defendants also testified that neither of them has ever pushed that fence back to its straight position at any point. Subsequent to the accident, defendants replaced their sidewalks and also had the fence and bricks replaced.

Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner. There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable. Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner, where the abutting owner affirmatively caused the defect, where the abutting landowner negligently constructed or repaired the sidewalk and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty.

In the instant case, it is undisputed that the defendants did not derive a special benefit, did not affirmatively cause the defect, did not negligently (or otherwise) construct or repair the tree well and are not subject to a statute imposing liability. Furthermore, one of the homeowner testified that, other than removing leaves by hand, he performed no maintenance on the tree well. This is sufficient to satisfy the defendants’ initial prima facie burden of establishing their entitlement to summary judgment as a matter of law.

The Plaintiff in opposition argues that the Opposition issues of fact exist as to defendant’s maintenance of the subject fence, and tree well which require resolution by the trier of fact; the portion of the fence that is protruding is what caught the plaintiff’s pants which prevented her from taking the next step and falling; the annexed photographs speak volumes regarding the defendant’s liability in this matter because first, they show the defective protruding fence and more importantly, they create an issue of fact as to whether it is credible that the defendant never saw or did anything regarding the fence for the 16 years he owned the property before the plaintiff’s accident. However, miraculously after plaintiff’s accident he becomes concerned with the aesthetics of the fence and replaces it.

The fact that plaintiffs owned the property for 16 years does not support an inference that plaintiffs negligently maintained the tree well. The post-accident reconstruction of the tree well was anything but miraculous, as it occurred as part of defendants’ reconstruction of the entire abutting sidewalk.

The plaintiff’s assertions are premised solely on surmise and speculation, and are insufficient to defeat the defendants’ motion for summary judgment.

Thus, plaintiff has completely failed to raise an issue capable of trial and based on the foregoing, the defendants’ motion for summary judgment is dismissing the complaint was granted.
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