Aberger v. Camp Loyaltown, Inc.

• Decision Date: 25 February 2021
• Docket Number: Case No. 2019-04039,Appeal No. 12184,Index No. 155230/16
• Citation: 142 N.Y.S.3d 528,193 A.D.3d 195
• Parties: Anna Rose ABERGER, as the Guardian of the Person and Property of Robert Aberger, etc., Plaintiffs-Appellants, v. CAMP LOYALTOWN, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 195
142 N.Y.S.3d 528

Anna Rose ABERGER, as the Guardian of the Person and Property of Robert Aberger, etc., Plaintiffs-Appellants,
v.
CAMP LOYALTOWN, INC., et al., Defendants-Respondents.

Appeal No. 12184
Index No. 155230/16
Case No. 2019-04039

Supreme Court, Appellate Division, First Department, New York.

ENTERED February 25, 2021

Sussman & Frankel, LLP, New York (Mitchell D. Frankel of counsel), for appellants.

Hardin, Kundla, McKeon & Poletto, P.A., New York (Eric J. Koplowitz of counsel), for respondents.

KAPNICK, J.P.

142 N.Y.S.3d 530

193 A.D.3d 196

In the summer of 2015, Robert Aberger was an adult camper at Camp Loyaltown, a sleepaway camp for developmentally disabled individuals, located in upstate New York. On the night of July 21, 2015, at approximately 9:15 p.m., Robert was walking along a path behind the dining hall when he misstepped, slipped, or tripped, and fell down an embankment, striking his face on one of several rocks or boulders below. At the time, Robert was accompanied by a camp counselor. Other camp staff immediately came to his assistance and determined that he needed emergency medical services. Robert was thereafter transported to a hospital.

193 A.D.3d 197

The record shows that the walkway is bordered by the dining hall on one side and a strip of grass adjacent to an embankment filled with rocks and boulders on the other side. The path was illuminated by light coming from inside the dining hall and also by a streetlamp located across the street from the path. At the time of Robert's accident, there was no railing or barrier along the side of the path with the steep embankment. On the night of the accident, as on most nights during the summer months, the strip of grass along the path adjacent to the steep embankment was wet from evening dew.

Plaintiff, Robert's mother and guardian, commenced this action on behalf of her son against Camp Loyaltown, Inc., the owner of the property on which the camp is situated, Citizens Options Unlimited, Inc. (COU) and AHRC Nassau, not-for-profit companies that provide various programs and services for developmentally disabled individuals, and NYSARC, Inc., a parent company of 48 different county chapters throughout New York State, of which AHRC Nassau is one. At all relevant times, Camp Loyaltown, Inc. leased the camp property to AHRC Nassau, which in turn subleased it to COU.¹

In this negligence action, plaintiff alleges that defendants did not maintain the premises in a reasonably safe condition because (i) the walkway where Robert fell was wet and not paved with a slip resistant material and thus was defective; (ii) the area where Robert fell was not sufficiently illuminated; and/or (iii) there was no guard rail or barrier along the path to prevent Robert from falling down the steep embankment and hitting his face on the large rocks. The parties agree that because of Robert's developmental disabilities, he is not competent to testify as a witness and explain the facts and circumstances surrounding his accident.

Defendants moved for summary judgment dismissing the complaint. The motion court agreed with defendants that because plaintiff was unable to identify the reason for Robert's fall, all of her proposed theories were speculative and could not

193 A.D.3d 198

defeat defendants’ motion, citing

142 N.Y.S.3d 531

Siegel v. City of New York, 86 A.D.3d 452, 928 N.Y.S.2d 1 (1st Dept. 2011).

We disagree, and modify to deny the motion as to COU, because there are issues of fact as to whether COU violated its duty to maintain the premises in a reasonably safe condition by failing to erect a railing or barrier along the side of the path adjacent to the embankment.

In the first instance, we agree that the complaint was correctly dismissed as against NYSARC, Camp Loyaltown, Inc., and AHRC Nassau. Plaintiff did not dispute NYSARC's argument before the motion court that it was not involved in the ownership or operation of the camp, and she does not address it on appeal (see Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 473, 126 N.Y.S.3d 122 [1st Dept. 2020] ). Camp Loyaltown, Inc. and AHRC Nassau were an out-of-possession landowner and lessor, respectively, whose lease and sublease did not contractually obligate them to make repairs, and the condition on the premises that plaintiff alleges caused Robert's accident was not a significant structural or design defect in violation of a specific statutory safety provision (see generally Heim v. Trustees of Columbia Univ. in the City of N.Y., 81 A.D.3d 507, 917 N.Y.S.2d 159 [1st Dept. 2011] ; Reyes v. Morton Williams Associated Supermarkets, Inc., 50 A.D.3d 496, 858 N.Y.S.2d 107 [1st Dept. 2008] ).

As to plaintiff's claims against COU, we find that COU established prima facie that it lacked actual notice of any such defect, based on a lack of any prior complaints concerning or accidents due to the alleged slippery condition of the walkway (see e.g. Barbuto v. Club Ventures Invs. LLC, 143 A.D.3d 606, 40 N.Y.S.3d 68 [1st Dept. 2016] ; Martinez v. Hunts Point Coop. Mkt., Inc., 79 A.D.3d 569, 914 N.Y.S.2d 99 [1st Dept. 2010] ; Burko v. Friedland, 62 A.D.3d 462, 878 N.Y.S.2d 64 [1st Dept. 2009] ). COU also established that it lacked constructive notice because the fact that a sidewalk becomes more slippery when wet does not constitute an actionable defect (see Bock v. Loumarita Realty Corp., 118 A.D.3d 540, 988 N.Y.S.2d 156 [1st Dept. 2014] ), and plaintiff failed to raise any issues of fact in opposition. In addition, COU established prima facie that the area where Robert fell was adequately lit based on testimony from camp staff who came to Robert's aid and testified that they were able to see Robert and the site of the accident clearly moments after it happened. Plaintiff's expert engineer's conclusory assertions that the walkway was not sufficiently lit failed to raise an issue of fact, since he did not identify a specific standard that COU allegedly violated (see Abraido v. 2001 Marcus Ave., LLC, 126 A.D.3d 571, 572, 4 N.Y.S.3d 43 [1st Dept. 2015] ).

193 A.D.3d 199

However, an issue of fact does exist as to whether COU violated its duty to maintain the premises in a reasonably safe condition by failing to erect a railing or barrier along the walkway. "A landowner must act as a reasonable [person] in maintaining [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ( Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] [internal quotation marks omitted]). Indeed,

"the duty of the owner or occupier will vary with the likelihood of plaintiff's presence at the particular time and place of the injury. While [plaintiff's] status is no longer determinative, considerations of who plaintiff is and what [his or her] purpose is upon the land are factors which, if known, may be included

142 N.Y.S.3d 532

in arriving at what would be reasonable care under the circumstances" ( id. ).

Moreover, a landowner or occupier "has a duty to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property by posting warning signs or otherwise neutralizing dangerous conditions" ( Cohen v. State of New York, 50 A.D.3d 1234, 1235, 854 N.Y.S.2d 253 [3rd Dept. 2008], lv denied 10 N.Y.3d 713, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008] [internal quotation marks and citations omitted]). "[E]ven if a hazard qualifies as ‘open and obvious’ as a matter of law, that characteristic merely eliminates the property owner's duty to warn of the hazard, but does not eliminate the broader duty to maintain the premises in a reasonably safe condition" ( Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 70, 773 N.Y.S.2d 38 [1st Dept. 2004] ; see also Garrido v. City of New York, 9 A.D.3d 267, 779 N.Y.S.2d 208 [1st Dept. 2004] ; Salvador v. New York Botanical Garden, 74 A.D.3d 540, 905 N.Y.S.2d 150 [1st Dept. 2010] ).² "A landlord's duty to maintain premises in a reasonably safe condition under Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976) is not satisfied by permitting a highly dangerous – but correctible – condition to remain, simply because the dangerous condition is obvious" ( Westbrook, 5 A.D.3d at 74, 773 N.Y.S.2d 38 ).

Plaintiff argues that the subject pathway, used by, amongst others, physically and mentally disabled campers, positioned right next to a steep embankment filled with rocks and boulders, without a properly designed safety railing or barricade,

193 A.D.3d 200

was inherently dangerous and that this dangerous condition was a substantial factor in causing Robert's fall and injuries.

COU, on the other hand, contends that a landowner or occupier has no duty to construct barriers or enclose natural geographic phenomena that are open and obvious and that the fact...