Morell v. Peekskill Ranch, Inc.

• Decision Date: 27 August 1984
• Citation: 479 N.Y.S.2d 241,104 A.D.2d 492
• Parties: Diana MORELL et al., Appellants, v. PEEKSKILL RANCH, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 241

479 N.Y.S.2d 241

104 A.D.2d 492

Diana MORELL et al., Appellants, v. PEEKSKILL RANCH, INC., Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 27, 1984.

Richard Kranis, P.C., New York City (Sylvia Helen Frenkel, New York City, of counsel), for appellants.

Nathan Cyperstein, New York City (Bonnie S. Kurtz, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, THOMPSON, O'CONNOR and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered November 10, 1981, dismissing the complaint upon motion of the defendant made during trial at the close of the plaintiffs' case.

Judgment affirmed, with costs.

On August 19, 1977, plaintiffs, Diana and Bruce Morell, and their two children, registered as guests at a "dude ranch" located in a "rustic setting". The next morning Mrs. Morell headed toward the tennis courts, walking down a "worn dirt path grass on either side". There were no warning signs or markers of any kind posted.

After Mrs. Morell had passed some "rocks" and had traveled 40 to 50 feet, she came upon a curve in the path with a three-foot high boulder that came up to her hips and allegedly blocked her view. She proceeded to go around the boulder, walking three or four feet, and then, while she was looking at the children on the tennis court, she "slipped" and fell. Nothing had interfered with her vision when she traversed the three or four feet before slipping. Later, Mr. Morell found his wife on the ground by a "bunch of boulders * * * at the foot of a cliff".

Trial Term granted defense counsel's motion to dismiss the complaint for failure to establish a prima facie case, finding that there was no proof that there was a dangerous condition. We affirm.

To be sure, a landowner must act as a reasonable person in maintaining property in a reasonably safe condition and, when necessary, give notice of unsafe conditions (see, e.g., Preston v. State of New York, 59 N.Y.2d 997, 466 N.Y.S.2d 952, 453 N.E.2d 1241; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). This does not, however, make the landowner an insurer, "liable for every injury no matter the nature of the hazard or how long it has been in place. There must be some proof that the potential danger reasonably could have been neutralized and that its existence was or should have been discovered by the (see Oppel v. City of Long Beach, 262 A.D. 777, 27 N.Y.S.2d 863, affd. 288 N.Y. 633, 42 N.E.2d 622)" (Preston v. State of New York, supra, 59 N.Y.2d p. 999, 466 N.Y.S.2d 952, 453 N.E.2d 1241; see, also, Quinlan v. Cecchini, 41 N.Y.2d 686, 689, 394 N.Y.S.2d 872, 363 N.E.2d 578).

The dirt path in issue is not inherently dangerous. It traversed a rocky area, apparently in keeping with the ranch's rustic environment (see Barnaby v. Rice, 75 A.D.2d 179, 428 N.Y.S.2d 973, affd. 53 N.Y.2d 720, 439 N.Y.S.2d 354, 421 N.E.2d 846). Moreover, in the absence of any evidence of a hidden dangerous condition, there is no basis for finding that the defendant owed a duty to post warning signs or to block off the path entirely (see Herman v. State of New York, 94 A.D.2d 161, 162-163, 463 N.Y.S.2d 501; Pope v. State of New York, 198 Misc. 31, 96 N.Y.S.2d 708, affd. 277 A.D. 1157, 101 N.Y.S.2d 1020; cf. Preston v. State of New York, supra. Mrs. Morell injured herself because she failed to watch where she was walking, not as the result of any negligence of the defendant (see Barnaby v. Rice, supra ). "She was bound to see what by the proper use of her senses she might have seen" (Weigand v. United Traction Co., 221 N.Y. 39, 42, 116 N.E. 345; see, also, Vella v. Seacoast Towers "A", 32 A.D.2d 813, 814, 302 N.Y.S.2d 451). As in Herman v. State of New York (supra, 94 A.D.2d pp. 163-164, 463 N.Y.S.2d 501), "there is no evidence in this record that the employment of signs would have prevented the accident".

There being no question as to the defendant's negligence, the case was properly dismissed at the close of the plaintiffs' case (Quinlan v. Cecchini, 41 N.Y.2d 686, 689, 394 N.Y.S.2d 872, 363 N.E.2d 578, supra; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868, supra; Barnaby v. Rice, 75 A.D.2d 179, 428 N.Y.S.2d 973, affd. 53 N.Y.2d 720, 439 N.Y.S.2d 354, 421 N.E.2d 846, supra ).

TITONE, J.P., and THOMPSON and O'CONNOR, JJ., concur.

RUBIN, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum, in which GIBBONS, J., concurs:

I dissent because the evidence, when viewed in the light most favorable to the plaintiffs, permits a rational inference of negligence on the part of the defendant (Fiederlein v. Hochberg Bros., 83 A.D.2d 472, 479, 445 N.Y.S.2d 183).

The plaintiff wife, a guest at defendant's ranch, fell from a 14 to 16-foot precipice when she was on her way to the defendant's tennis courts. To get to the tennis courts, she walked along a worn dirt path, which she had seen other guests use and which went in the direction of the courts. At an apparent juncture in the path, she did not take the unmarked course that would have led her to a stairway down to the tennis courts. Instead, she proceeded along what appeared to be a continuation of the path. After Mrs. Morell had traveled another 150 to 200 feet, the path appeared to curve to the right. On Mrs. Morell's right side was a three-foot high boulder, which obscured the fact that the path did not continue to the right. According to Mrs. Morell, she proceeded to go around the boulder and then ...