Sweeney v. Riverbay Corp.

Citations: 76 A.D.2d 847; 907 N.Y.S.2d 214

Court: Appellate Division of the Supreme Court of the State of New York; September 14, 2010; New York; State Appellate Court

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The Supreme Court of Bronx County reversed a previous order that had granted the defendant, Riverbay Corporation, summary judgment to dismiss the complaint regarding a trip-and-fall incident involving plaintiff Margaret Sweeney. The court reinstated the complaint, finding that although the garden hose in question was reportedly visible and might constitute an open and obvious hazard, there remained a question of fact regarding whether the defendant had breached its duty to maintain safe premises. Witness Eric Harvey testified that he observed the hose across the sidewalk approximately 30 minutes before Sweeney's accident, which occurred around 9:10 a.m. This timeframe raised a potential issue concerning the defendant's notice of the hazard and whether it had sufficient opportunity to address it. The dissenting opinion argued against the majority, asserting that 30 minutes was not enough time for the defendant to have constructive notice of the hose as a hazard, particularly given the size of the property. Sweeney reported she did not see the hose before falling and noted that the sidewalk was wet from nearby sprinklers. The court found that there was no evidence from the defendant regarding inspections of the area leading up to the incident.

The deposition revealed that the witness was unfamiliar with the hose type used by Riverbay and could not confirm its presence 30 minutes before the accident, only suggesting it may have been there for a "little while." Osborne Pearson, Riverbay's grounds maintenance supervisor, stated that Riverbay did not own the hose or sprinkler involved, and no employees were assigned watering duties that morning. Riverbay uses straight stretch hoses and has a policy to have a maintenance person present when hoses are in use, typically accompanied by warning signs. Pearson was uncertain about the duration the hose was on the sidewalk before the incident.

After discovery, the defendant sought summary judgment, which the court granted, dismissing the complaint on the grounds that the hose was "easily observable" and therefore not a "dangerous hazard." It was determined that a risk could be deemed open and obvious if clear and undisputed evidence supported such a conclusion (Tagle v Jakob), and that any passerby using their senses would have noticed the hose. Photographic evidence indicated its visibility from 25 feet away, and the presence of sprinklers suggested an ongoing watering activity.

Despite the open and obvious condition relieving the property owner of the duty to warn, there remained an obligation to maintain safe premises. The court found the hose was not inherently dangerous, likening the case to Rivera v City of New York, where a visible hazard did not constitute a dangerous condition, in contrast to Westbrook, where the hazard was less apparent. Even if the hose were considered dangerous, negligence claims require proof that the defendant created the condition or had actual or constructive notice of it. The plaintiff failed to provide evidence to counter the defendant's claims of lack of responsibility for the condition.

The plaintiff failed to challenge Mr. Pearson's testimony, which asserted that Riverbay neither owned the hose involved in the incident nor assigned any employee to water the plants on the day of the accident. Referencing *Mayer v New York City Tr. Auth.*, the court emphasized that speculation could not suffice to establish liability, particularly since subcontractors had not worked on the site in the days leading up to the accident. Eric Harvey's affidavit claiming the hose belonged to Riverbay was contradicted by his deposition. Pearson's testimony indicated Riverbay had no actual notice of the hose blocking the walkway, and the plaintiff did not argue otherwise, nor did the majority indicate any factual dispute regarding actual notice. Furthermore, no constructive notice existed, as a hazardous condition must be visible and apparent for a sufficient duration to allow for discovery and remediation. Case law, including *Gordon*, illustrates that without evidence of how long the condition existed, constructive notice cannot be established. Although Harvey estimated the hose had been in place for about 30 minutes, he admitted uncertainty regarding its actual duration. This lack of evidence was deemed critical, as even a 30-minute timeframe would not be sufficient for constructive notice, especially given Riverbay's extensive property management responsibilities. The case is distinguished from typical slip and fall incidents in confined spaces, where hazards are more easily detectable. Consequently, the order granting summary judgment to the defendant should be affirmed, dismissing the complaint due to insufficient evidence of essential elements for the claim.