Clark v. Amf Bowling Centers Inc.

• Decision Date: 12 April 2011
• Citation: 2011 N.Y. Slip Op. 03016,921 N.Y.S.2d 273,83 A.D.3d 761
• Parties: Sheila CLARK, appellant,v.AMF BOWLING CENTERS, INC., respondent.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 761

921 N.Y.S.2d 273

2011 N.Y. Slip Op. 03016

Sheila CLARK, appellant,

v.AMF BOWLING CENTERS, INC., respondent.

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

April 12, 2011.

Gregory W. Bagen, Brewster, N.Y. (Dara L. Warren of counsel), for appellant.Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner and Lindsay J. Kalick of counsel), for respondent.REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Putnam County (Nicolai, J.), dated April 28, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff allegedly was injured when she walked through the lobby of a bowling alley owned by the defendant and tripped and fell over a knee-high table. She commenced this action against the defendant alleging, inter alia, that there was inadequate lighting in the lobby. The defendant moved for summary judgment dismissing the complaint, contending that the table was open and obvious, and not inherently dangerous. The Supreme Court granted the motion. We reverse.

While a landowner has a duty to maintain its premises in a reasonably safe manner ( see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868), it does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous ( see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40). “The fact that a defect may be open and obvious does not negate a landowner's duty to maintain its premises in a reasonably safe condition, but may raise an issue of fact as to the plaintiff's comparative negligence” ( Ruiz v. Hart Elm Corp., 44 A.D.3d 842, 843, 844 N.Y.S.2d 80). “Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” ( Fasano v. Green–Wood Cemetery, 21 A.D.3d 446, 446, 799 N.Y.S.2d 827). A condition that is generally apparent “to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” ( Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 1009, 864 N.Y.S.2d 554). The determination of “whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances” ( id. at 1009, 864 N.Y.S.2d 554; see Shah v. Mercy Med. Ctr., 71...