Breau v. Burdick, 932

• Decision Date: 16 November 2018
• Docket Number: 932,17–02049
• Citation: 87 N.Y.S.3d 786,166 A.D.3d 1545
• Parties: Victoria Pearson BREAU, Plaintiff–Appellant, v. Blair N. BURDICK, et al., Defendants, Dale R. Burdick, Raymond L. Foster and Pamela Foster, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1545

87 N.Y.S.3d 786

Victoria Pearson BREAU, Plaintiff–Appellant,

v. Blair N. BURDICK, et al., Defendants,Dale R. Burdick, Raymond L. Foster and Pamela Foster, Defendants–Respondents.

932

17–02049

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

November 16, 2018

FANIZZI & BARR, P.C., NIAGARA FALLS (ANDREW D. FANIZZI OF COUNSEL), FOR PLAINTIFF–APPELLANT.

WALSH, ROBERTS & GRACE, BUFFALO (JOSEPH H. EMMINGER, JR., OF COUNSEL), FOR DEFENDANT–RESPONDENT DALE R. BURDICK.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (NICHOLAS HRICZKO OF COUNSEL), FOR DEFENDANTS–RESPONDENTS RAYMOND L. FOSTER AND PAMELA FOSTER.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion of defendant Dale R. Burdick and reinstating the complaint against him, and granting plaintiff's motion, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this negligence action seeking to recover damages for injuries she sustained when her finger got caught in the unguarded chain of a hay conveyor then owned by defendant Dale R. Burdick while she was performing hay baling work on Burdick's farm. At the time of the accident, plaintiff was helping defendants Raymond L. Foster and Pamela Foster (collectively, Fosters), who had a verbal agreement with Burdick to perform such work on Burdick's farm in exchange for a percentage of the proceeds therefrom. Supreme Court, among other things, denied plaintiff's motion to compel the Fosters to permit inspection of the hay conveyor, and granted the respective cross motions of the Fosters and Burdick for summary judgment dismissing the complaint against them. We conclude that the court properly granted the Fosters' cross motion, but we agree with plaintiff that the court erred in granting Burdick's cross motion. We therefore modify the order accordingly.

It is well established that, "[b]ecause a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" ( Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). "New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition" ( Tagle v. Jakob , 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001] ; see Basso v. Miller , 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ). "The duty of a landowner to maintain [his or her] property in a safe condition extends to persons whose presence is reasonably foreseeable by the landowner" ( Brown v. Rome Up & Running, Inc. , 68 A.D.3d 1708, 1708, 891 N.Y.S.2d 575 [4th Dept. 2009] [internal quotation marks omitted]; see Salim v Western Regional Off–Track Betting Corp., Batavia Downs , 100 A.D.3d 1370, 1371, 954 N.Y.S.2d 791 [4th Dept. 2012] ). "[A] landowner's duty to warn of a latent, dangerous condition on his [or her] property is a natural counterpart to his [or her] duty to maintain [the] property in a reasonably safe condition" ( Galindo v. Town of Clarkstown , 2 N.Y.3d 633, 636, 781 N.Y.S.2d 249, 814 N.E.2d 419 [2004] ; see Tagle , 97 N.Y.2d at 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 ). "It is well settled that both owners and occupiers owe a duty of reasonable care to maintain property in a safe condition and to give warning of unsafe conditions that are not open and obvious" ( Barry v. Gorecki , 38 A.D.3d 1213, 1215, 833 N.Y.S.2d 329 [4th Dept. 2007] ).

Addressing first Burdick's cross motion, we note that it is undisputed that Burdick owned the farm where plaintiff's accident occurred and owned the allegedly dangerous hay conveyor that caused her injury. With Burdick's knowledge and permission, the Fosters used Burdick's hay conveyor to perform the haying work pursuant to their verbal agreement. Indeed, Burdick set up the hay conveyor for the Fosters' use prior to the accident. In addition, Burdick testified at his deposition that he had given Raymond Foster (Raymond) "complete power" over who assisted him and that, on the day of the accident, he was aware that Raymond was going to have people assist him in performing haying work on the farm. Burdick therefore failed to establish as a matter of law that plaintiff's presence on the farm to perform haying work with the Fosters was not reasonably foreseeable (see generally Brown , 68 A.D.3d at 1708–1709, 891 N.Y.S.2d 575 ), and we note that Burdick does not contend otherwise.

Additionally, where, as here, "the defendant [property] owner provides ... allegedly defective equipment, the legal standard [with respect to negligence] ‘is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof’ ..., because in that situation the defendant property owner ‘is possessed of the authority, as owner, to remedy the condition’ of the defective equipment" ( Sochan v. Mueller , 162 A.D.3d 1621, 1625, 78 N.Y.S.3d 608 [4th Dept. 2018] [emphasis omitted], quoting Chowdhury v. Rodriguez , 57 A.D.3d 121, 123, 867 N.Y.S.2d 123 [2d Dept. 2008] ; see Pommerenck v. Nason, 79 A.D.3d 1716, 1716, 914 N.Y.S.2d 826 [4th Dept. 2010] ; see also Sama v. Sama, 92 A.D.3d 862, 862, 939 N.Y.S.2d 113 [2d Dept. 2012] ). In support of his cross motion, Burdick relied upon his deposition testimony, as well as the deposition testimony of Raymond and plaintiff. Burdick's testimony established that he was aware that the hay conveyor had no safety guard over the chain. Although Burdick and Raymond suggested that the absence of a safety guard did not create a safety concern and that it was not unusual for a hay conveyor to lack such a safety guard, the evidence relied on by Burdick also indicates that some models of hay conveyors have a guard over the chain as a safety feature. In particular, Raymond testified that when plaintiff assisted him with haying work on prior occasions, they used a different model of hay conveyor that, unlike the one used at the time of the accident, had a safety guard on it. Moreover, during her testimony, plaintiff attributed the accident to the allegedly dangerous condition of the hay conveyor, i.e., the lack of a safety guard over the chain. Burdick submitted no other evidence—for example, an expert affidavit—to demonstrate that safety guards over the chain are unnecessary for the safe operation of hay conveyors (see generally Kosicki v. Spring Garden Assn., Inc. , 42 A.D.3d 909, 910, 839 N.Y.S.2d 660 [4th Dept. 2007] ). We thus conclude that Burdick failed to establish as a matter of law that the absence of a safety guard over the chain of the hay conveyor did not constitute a dangerous condition (see Smith v. Szpilewski, 139 A.D.3d 1342, 1342, 139 A.D.3d 1342 [4th Dept. 2016] ), or that he lacked actual or constructive notice of the allegedly dangerous condition (see Sochan, 162 A.D.3d at 1625, 78 N.Y.S.3d 608 ; Gonzalez v. Perkan Concrete Corp., 110 A.D.3d 955, 959, 975 N.Y.S.2d 65 [2d Dept. 2013] ).

We agree with plaintiff that Burdick also failed to eliminate all triable issues of fact whether the unguarded chain on the hay conveyor constituted an open and obvious condition. We note that "whether a condition was readily observable impacts on plaintiff's comparative negligence and does not negate defendant's duty to keep the premises reasonably safe ... An open and obvious condition merely negates the duty to warn" ( Pelow v. Tri–Main Dev., 303 A.D.2d 940, 941, 757 N.Y.S.2d 653 [4th Dept. 2003] ; see Francis v. 107–145 W. 135th St. Assoc., Ltd. Partnership, 70 A.D.3d 599, 600, 895 N.Y.S.2d 400 [1st Dept. 2010] ; Rice v. University of Rochester Med. Ctr., 55 A.D.3d 1325, 1327, 865 N.Y.S.2d 463 [4th Dept. 2008] ). "It is well established that there is no duty to warn of an open and obvious dangerous condition because in such instances the condition is a warning in itself" ( Schneider v. Corporate Place, LLC, 149 A.D.3d 1503, 1504, 53 N.Y.S.3d 753 [4th Dept. 2017] [internal quotation marks omitted] ). "Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances ... 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. [internal quotation marks omitted] ). "[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question," but "a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion" ( Tagle, 97 N.Y.2d at 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 ). Even assuming, arguendo, that the deposition testimony and photographic exhibits establish that the unguarded chain was partially visible to the side of the conveyor belt, we conclude that " ‘[s]ome visible hazards, because of their nature or...