Langgood v. Carrols, LLC

• Decision Date: 31 March 2017
• Docket Number: 191 CA 16-01263.
• Citation: 148 A.D.3d 1734,50 N.Y.S.3d 733
• Parties: Gerald LANGGOOD, Plaintiff–Respondent, v. CARROLS, LLC, Defendant–Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1734
50 N.Y.S.3d 733

Gerald LANGGOOD, Plaintiff–Respondent,
v.
CARROLS, LLC, Defendant–Appellant, et al., Defendants.

191 CA 16-01263.

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

March 31, 2017.

50 N.Y.S.3d 734

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Brandon King of Counsel), for Defendant–Appellant.

Fuhrman Law, Orchard Park (Shannon S. Fuhrman of Counsel), for Plaintiff–Respondent.

PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, and TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries he sustained when he allegedly tripped and fell on a rug while he was entering a restaurant owned and operated by Carrols, LLC (defendant). We agree with defendant that Supreme Court erred in denying its motion seeking summary judgment dismissing the complaint against it. We therefore reverse the order, grant defendant's motion, and dismiss the complaint against defendant. Although the issue "whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide ..., summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous" (Przybyszewski v. Wonder Works Constr., 303 A.D.2d 482, 483, 755 N.Y.S.2d 435 ; see Bishop v. Marsh, 59 A.D.3d 483, 483, 873 N.Y.S.2d 201 ; Mullaney v. Koenig, 21 A.D.3d 939, 939, 801 N.Y.S.2d 343 ). Here, defendant established its entitlement to judgment as a matter of law by submitting evidence that the placement of the rug in the vestibule of the restaurant did not constitute a dangerous condition, and in opposition plaintiff

50 N.Y.S.3d 735

failed to raise a triable issue of fact (see Leib v. Silo Rest., Inc., 26 A.D.3d 359, 360, 809 N.Y.S.2d 185 ; Mansueto v. Worster, 1 A.D.3d 412, 413, 766 N.Y.S.2d 691 ; Jacobsohn v. New York Hosp., 250 A.D.2d 553, 553–554, 674 N.Y.S.2d 291 ).

We respectfully disagree with our dissenting colleague that defendant failed to meet its initial burden because it submitted the deposition testimony of plaintiff who testified that he fell when his right foot went "underneath something" and that he saw the rug "kind of flapped over" after he fell. In our view, defendant satisfied its initial burden inasmuch as the videotape of the accident shows that the rug was flush to the floor, and other patrons of defendant's restaurant walked over the rug without an issue. Thus, plaintiff tripped over the rug because his foot picked up the edge of the rug and caused his fall, and not because there was a ripple in the rug or because any portion of the rug was raised off of the ground (see Jacobsohn, 250 A.D.2d at 554, 674 N.Y.S.2d 291 ).

Although we agree with the dissent that defendant failed to establish as a matter of law that plaintiff's inattention was the sole proximate cause of his fall, we conclude that defendant established as a matter of law that the alleged defect created by the placement of a rug in the vestibule and any apparent height differential between the rug and the floor "is too trivial to be actionable" (Sharpe v. Ulrich Dev. Co., LLC, 52 A.D.3d 1319, 1320, 859 N.Y.S.2d 851 ). "[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian's shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances" (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 80, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; see Stein v. Sarkisian Bros., Inc., 144 A.D.3d 1571, 1572, 40 N.Y.S.3d 818 ). Defendant's submissions established that the accident occurred between approximately 10:00 and 10:30 a.m., when it was "bright enough to see." Plaintiff was entering defendant's restaurant behind his son, and there were no other...