Duclos v. County of Monroe

• Decision Date: 10 February 1999
• Citation: 685 N.Y.S.2d 549,258 A.D.2d 925
• Court: New York Supreme Court — Appellate Division
• Parties: AARON DUCLOS, Appellant,<BR>v.<BR>COUNTY OF MONROE, Defendant, and<BR>WILLIAM D. SCHAEFER, Doing Business as SCHAEFER'S GENESEE SAND AND GRAVEL, et al., Respondents.

258 A.D.2d 925

685 N.Y.S.2d 549

AARON DUCLOS, Appellant,

v. COUNTY OF MONROE, Defendant, andWILLIAM D. SCHAEFER, Doing Business as SCHAEFER'S GENESEE SAND AND GRAVEL, et al., Respondents.

Decided February 10, 1999.

Present — Pine, J.P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.

Order unanimously affirmed without costs.

Memorandum:

Plaintiff commenced this action seeking damages for injuries he sustained on November 4, 1995 at approximately 7:10 P.M., when he fell approximately 100 feet into a gravel pit located on land adjacent to Mendon Ponds Park, a public park operated by defendant County of Monroe. Plaintiff testified at a General Municipal Law § 50-h hearing that, although the sun had set, a full moon enabled him to see clearly. From a vantage point some two feet from the edge of the cliff, he observed his friends 100 feet below. He then moved away from the edge of the cliff and proceeded to walk around the gravel pit some four to five feet from its edge so that he could rejoin his friends. He went over a small hill, found himself at the edge of the cliff, lost his balance, and fell. Plaintiff testified that he knew of the existence of the cliff, that he considered four to six feet from the edge of the cliff to be a comfortable distance, and that nothing obstructed his view of the cliff.

Supreme Court properly determined that, as a matter of law, plaintiff's conduct was the sole proximate cause of the accident and granted the motions of defendants Robert Lehman and Mercedes Lehman, the owners of the land encompassing the gravel pit, and of defendant William D. Schaefer, d/b/a Schaefer's Genesee Sand and Gravel, the operator of the gravel pit, for summary judgment dismissing the complaint.

It is well established that a landowner or occupier of land owes a duty to persons coming upon his or 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" (Christmann v Murphy, 226 AD2d 1069, 1070, lv denied 89 NY2d 801). There is, however, "no duty on the part of a landowner [or occupier of land] to warn against a condition that can readily be observed by those employing the reasonable use of their senses" (Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY2d 862). Where the condition is open and obvious, "the condition is a warning in itself" (Tarricone v State of New York, supra, at 309). Because plaintiff's testimony...