Goodnough v. Clark

• Decision Date: 27 September 2017
• Docket Number: 3:15-CV-0648 (GTS/DEP)
• Parties: MARGARET GOODNOUGH, Plaintiff, v. JUDITH CLARK; and THOMAS CLARK, Defendants.
• Court: U.S. District Court — Northern District of New York

MARGARET GOODNOUGH, Plaintiff, v. JUDITH CLARK; and THOMAS CLARK, Defendants.

3:15-CV-0648 (GTS/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 27, 2017

APPEARANCES:

VILLARI, BRANDES & GIANNONE, P.C.

Counsel for Plaintiff

8 Tower Bridge, Suite 400

161 Washington Street

Conshohocken, PA 19428

O'CONNELL & ARONOWITZ, P.C.

Co-Counsel for Plaintiff

54 State Street, 9^th Floor

Albany, NY 12207

BARCLAY DAMON, LLP

Counsel for Defendants

243 Lake Street

Elmira, NY 14901

OF COUNSEL:

JOSEPH P. BRADICA, ESQ.

PETER M. VILLARI, ESQ.

PAMELA A. NICHOLS, ESQ.

AMBER L. WRIGHT, ESQ.

MATTHEW J. ROSNO, ESQ.

BRYAN J. MAGGS, ESQ.

GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER

Currently before the Court, in this personal injury action filed by Margaret Goodnough ("Plaintiff") against Judith Clark and Thomas Clark ("Defendants"), is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 31.) For the reasons set forth below, Defendants' motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, liberally construed, Plaintiff's Complaint alleges as follows. Defendants were the owners of real property located at 124 Hillside Terrace, in the Town of Endwell, County of Broome and State of New York ("subject premises"). (Dkt. No. 1, ¶¶ 9-11 [Pl.'s Compl.].) At all times relevant to this lawsuit, Defendants were responsible for the safety and maintenance of the property. (Id., ¶¶ 12-13.) On August 17, 2012, at approximately 11:00 a.m., Plaintiff was an invitee of Defendants at the subject premises. (Id., ¶ 16.) On this date and time, Plaintiff was walking down a poorly lit interior staircase that led to the basement of the subject premises when she tripped and fell as a result of coming into contact with a dangerous and/or defective condition, i.e., an uneven step, located near the bottom of the interior staircase. (Id., ¶ 17.) Defendants were, or reasonably should have been, aware of the dangerous and/or defective condition of the interior staircase and they breached their duty to maintain the subject premises in a reasonably safe condition. (Id., ¶¶ 18-19.) As a direct and proximate result of Defendants' negligence, Plaintiff sustained serious and/or permanent bodily injuries as well as mental and emotional distress. (Id., ¶ 21.) Based on these allegations, Plaintiff asserts a claim of negligence against Defendants. (Id., ¶¶ 8-27.)

B. Statement of Undisputed Material Facts

Unless otherwise noted, the following facts were asserted and supported with accurate record citations by Defendants in their Statement of Material Facts ("Rule 7.1 Statement") and expressly admitted by Plaintiff in her response thereto ("Rule 7.1 Response"). (Compare Dkt. No. 31, Attach. 5 [Defs.' Rule 7.1 Statement] with Dkt. No. 39, Attach. 3 [Pl.'s Rule 7.1 Response].)

1. The action arises out of an alleged incident on August 17, 2012, at 124 Hillside Terrace, Endwell, New York, which is owned by Defendants. Defendant Judith Clark passed away after the filing of the Complaint.

2. Plaintiff claims that Defendants are negligent for failing to maintain the subject premises, specifically for failing to maintain a staircase between the first floor and basement.

3. Plaintiff testified at an examination before trial in this matter. At her deposition Plaintiff testified as follows:

a. Plaintiff had been friends with Defendants for a very long time and was helping Mrs. Clark, who was suffering from Parkinson's disease, with laundry at the time of the accident.

b. Plaintiff had never seen anyone else fall down the basement stairs and never complained to Defendants about the basement stairs.

c. Other than observing that the basement stairs were old, Plaintiff did not recognize anything wrong with the stairs during the times that she had previously traversed them.

d. Plaintiff had heard that Mrs. Clark had previously fallen while traversing the basement stairs but did not know the circumstances of her fall. Similarly, Mr. Clark told Plaintiff that he had nearly fallen on the basement stairs a "number of times." Plaintiff was not aware of anyone else having fallen on the basement stairs.

e. As Plaintiff was descending the basement stairs on the date of the incident, she was carrying a few shirts but was holding the railing; she stepped on the next to last step, felt that her foot was not supported because the step felt uneven or tilted/sloped, lost her balance, and fell forward.

f. Plaintiff felt that the step was uneven; her foot was fully on the step but she felt that the step was uneven on the lateral part of her foot.

g. As Plaintiff was descending the basement stairs on the date of the incident, she did not observe anything wrong with them.¹

4. Defendant Thomas Clark testified at an examination before trial in this matter. At his deposition, Defendant Thomas Clark testified as follows:

a. Mr. Clark never made any alterations or changes to the basement stairs in the approximately 50 years he has owned the home.

b. Mr. Clark almost fell on the basement stairs at some point in time after he tripped on some canned goods Mrs. Clark had left on the stairs.

c. Other than the time that Mr. Clark almost fell on the basement stairs and the time that Mrs. Clark fell, Mr. Clark is not aware of anyone else having fallen on the basement stairs before Plaintiff's accident.

d. Since the time of Plaintiff's accident, Mr. Clark has traversed the basement stairs "many times without incident" and inspected the stairs and did not see any problem with them.

e. Mr. Clark identified two photographs of the basement stairs and confirmed that they accurately depicted the basement stairs at the time of the accident.

5. Photographs depicting the condition of the basement stairs were identified and confirmed as accurate in the respective depositions of the parties.

6. Defendant Thomas Clark has owned the subject premises for more than 45 years and did not construct the basement stairs. Mr. Clark also regularly cleaned, visually inspected, and used the basements stairs before Plaintiff's accident occurred. During the month preceding Plaintiff's accident, Mr. Clark used and visually inspected the basement stairs on at least one occasion.²

7. According to Defendant Thomas Clark, there were no other accidents on the basement stairs before Plaintiff's accident other than (1) an incident when he tripped on some canned goods and almost fell, and (2) an incident when Defendant Judith Clark fell.

8. Plaintiff had previously used the basement stairs several times before the time of her accident.

9. Defendants' engineering expert, Thomas Fraser, PE, inspected the subject premises and concluded, to a reasonable degree of engineering certainty, that the basement stairs were in sound condition and good repair at the time of Plaintiff's accident.

C. The Parties' Briefing on Defendants' Motion

1. Defendants' Memorandum of Law

Generally, in their memorandum of law, Defendants assert two arguments. (Dkt. No. 31, Attach. 4 [Defs.' Mem. of Law].)

First, Defendants argue that Defendant Thomas Clark did not (1) create the allegedly dangerous condition that caused Plaintiff's accident, (2) alter or change the basements stairs, or (3) have actual notice of any alleged dangerous condition. (Id. at 11.)³ Specifically, Defendants argue that the basement stairs were present in the home when Defendant Thomas Clark purchased the subject premises more than 45 years ago. (Id.) In addition, Defendants argue that the stairs were in the same condition as when Mr. Clark purchased the home and that he had not received any complaints about the condition of the stairs before Plaintiff's accident. (Id. at 12.)

Second, and finally, Defendants argue that Defendant Thomas Clark did not have constructive notice of a visible and apparent defect that existed for a sufficient length of timebefore Plaintiff's accident that would have allowed Mr. Clark a sufficient opportunity to discover and fix it. (Id.) Specifically, Defendants argue that Mr. Clark did not have constructive notice of any alleged defect for the following seven reasons: (1) only two dissimilar accidents occurred on the basement steps during the time that Mr. Clark has owned the subject premises; (2) Mr. Clark never received any complaints about the basement stairs; (3) Mr. Clark regularly used and inspected the basement stairs and did not observe, feel, or notice any hazardous or defective conditions; (4) Plaintiff had used the basement stairs several times before her accident without incident and had never complained about any hazardous or defective condition; (5) Plaintiff did not observe or notice anything wrong with the basement stairs as she was descending them before her accident; (6) the photographs of the basement stairs do not reveal a visible or apparent defect or hazardous condition; and (7) Defendants' engineering expert has opined that the basement stairs were in good condition. (Id. at 15-16.)

2. Plaintiff's Opposition Memorandum of Law

Generally, in opposition to Defendants' motion, Plaintiff asserts the following four arguments. (Dkt. No. 39, Attach. 6 [Pl.'s Opp'n Mem. of Law].)

First, Plaintiff argues that there is a genuine dispute of material fact regarding whether Defendants had actual notice of the unsafe, dangerous, and defective condition of the basement stairs for the following three reasons: (1) Defendant Thomas Clark admitted that Mrs. Clark previously fell on the "next to the last step," which is the exact same step where Plaintiff's fall occurred; (2) Mr. Clark warned Plaintiff to "hold on" while using the basement stairs; and (3) Mr. Clark prohibited non-family members from using the basement stairs. (Id. at 13-14.)

Second, Plaintiff argues that Defendant Thomas Clark cannot rely on statements made by his wife describing how her fall occurred. (Id. at 15.) Specifically, Plaintiff argues that Mr.Clark was not present during his wife's fall and his deposition testimony recounting his...