Christmann v. Murphy

• Decision Date: 19 April 1996
• Citation: 226 A.D.2d 1069,642 N.Y.S.2d 123
• Parties: Margaret CHRISTMANN and Charles Christmann, Respondents, v. Carol MURPHY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 123

642 N.Y.S.2d 123

226 A.D.2d 1069

Margaret CHRISTMANN and Charles Christmann, Respondents, v. Carol MURPHY, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

April 19, 1996.

Law Offices of Laurence D. Behr by Laurence Behr, Buffalo, for Appellant.

Law Offices of Eugene C. Tenney by Eric Shelton, Buffalo, for Respondents.

Before PINE, J.P., and LAWTON, WESLEY, BALIO and DAVIS, JJ.

MEMORANDUM:

Margaret Christmann (plaintiff) sustained injuries when she fell from a stepladder while picking cherries for purchase at Murphy's Orchards, a fruit farm owned by defendant. Plaintiff fell from the second step below the top cap of the stepladder that was supplied by defendant. Plaintiff testified at her deposition that she was aware of the risks involved in climbing to that step because there is "[n]o support and no way to balance yourself".

Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Defendant landowner owed a duty to plaintiff and other persons coming on her land to keep it in a reasonably safe condition, considering all the circumstances, including the purpose of the person's presence on the land and the likelihood of injury (see, Macey v. Truman, 70 N.Y.2d 918, 919, 524 N.Y.S.2d 393, 519 N.E.2d 304; mot to amend remittitur granted 71 N.Y.2d 949, 528 N.Y.S.2d 827, 524 N.E.2d 147, citing Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; Henderson v. L. & K. Collision Corp., 146 A.D.2d 569, 571, 536 N.Y.S.2d 183). That duty extends, however, "only to those conditions that are not readily observable; the landowner owes no duty to warn of conditions that are in plain view, easily discoverable 'by those employing the reasonable use of their senses' (Tarricone v. State of New York, 175 A.D.2d 308, 309, 571 N.Y.S.2d 845, lv. denied 78 N.Y.2d 862, 576 N.Y.S.2d 220, 582 N.E.2d 603), for in such instances the condition is a warning in itself" (Thornhill v. Toys "R" Us NYTEX, 183 A.D.2d 1071, 1072-1073, 583 N.Y.S.2d 644). Where, as here, it is undisputed that the stepladder was not defective and that the dangers associated with its use were obvious and readily apparent, there can be no liability on defendant's part for the failure to warn of those dangers or to provide instructions regarding the stepladder's use (see, Lichtenthal v. St. Mary's Church, 166 A.D.2d 873, 875, 561 N.Y.S.2d 134). Under the circumstances of this case defendant had no duty "to protect plaintiff...