Atehortua v. Lewin

• Decision Date: 20 December 2011
• Citation: 90 A.D.3d 794,2011 N.Y. Slip Op. 09252,935 N.Y.S.2d 102
• Parties: Kaylee ATEHORTUA, etc., et al., respondents, v. Jamie LEWIN, et al., appellants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09252

90 A.D.3d 794

935 N.Y.S.2d 102

Kaylee ATEHORTUA, etc., et al., respondents,

v.Jamie LEWIN, et al., appellants.

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

Dec. 20, 2011.

Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for appellants.

McCarthy & Kelly, LLP, New York, N.Y. (William P. Kelly of counsel), for respondents.

ANITA R. FLORIO, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated February 3, 2011, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

While landowners have a duty to maintain their property in a reasonably safe condition ( see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Mathew v. A.J. Richard & Sons, 84 A.D.3d 1038, 1039, 923 N.Y.S.2d 218), a landowner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous ( see Mathew v. A.J. Richard & Sons, 84 A.D.3d at 1039, 923 N.Y.S.2d 218; Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 713, 917 N.Y.S.2d 896; Tyz v. First St. Holding Co., Inc., 78 A.D.3d 818, 819, 910 N.Y.S.2d 179; Weiss v. Half Hollow Hills Cent. School Dist., 70 A.D.3d 932, 933, 893 N.Y.S.2d 877; Bretts v. Lincoln Plaza Assoc., Inc., 67 A.D.3d 943, 944, 890 N.Y.S.2d 87; Neville v. 187 E. Main St., LLC, 33 A.D.3d 682, 683, 822 N.Y.S.2d 599; Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40). “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances” ( Katz v. Westchester County Healthcare Corp., 82 A.D.3d at 713, 917 N.Y.S.2d 896). 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 ( id.; see Stoppeli v. Yacenda, 78 A.D.3d 815, 816, 911 N.Y.S.2d 119; Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 1062, 908 N.Y.S.2d 124; Shah v. Mercy Med. Ctr., 71 A.D.3d 1120, 898 N.Y.S.2d 589; Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 1009, 864 N.Y.S.2d 554).

The infant plaintiff was injured when she tripped and fell over a “Slip and Slide” toy in the defendants' backyard. The evidence submitted by the defendants in support of their motion for summary judgment dismissing the complaint, which included video surveillance footage of the accident, established their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for the defendants' negligent maintenance of their property. The evidence demonstrated that the Slip and Slide was an open and obvious condition which was not inherently dangerous ( see Mathew v. A.J. Richard & Sons, 84 A.D.3d at 1039, 923 N.Y.S.2d 218; Flaim v. Hex Food, Inc., 79 A.D.3d 797, 798, 912 N.Y.S.2d 426; Tyz v. First St. Holding Co., Inc., 78 A.D.3d at 818, 910 N.Y.S.2d 179; Weiss v. Half Hollow Hills Cent. School Dist., 70 A.D.3d at 933, 893 N.Y.S.2d 877; Stern v. Costco Wholesale, 63 A.D.3d 1139, 1140, 882 N.Y.S.2d 266; Bernth v. King Kullen Grocery Co., Inc., 36 A.D.3d 844, 845, 830 N.Y.S.2d 222; Pirie v. Krasinski, 18 A.D.3d 848, 849, 796 N.Y.S.2d 671). The video footage also supported the defendants' assertion that there was more than enough space between the nearby kiddie pool and the end of the Slip and Slide for the infant plaintiff to have easily avoided walking over any part of the Slip and Slide to reach the defendants' house. In opposition, the affidavits of the infant plaintiff and her brother failed to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Thus, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action based on negligent maintenance of the property.

The Supreme Court should have also granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for negligent supervision. A person to whom the custody and care of a child is entrusted by a parent “is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control. Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her [own] negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent...