Perrelli v. Orlow
| Decision Date | 08 June 2000 |
| Citation | 708 N.Y.S.2d 742,273 A.D.2d 533 |
| Court | New York Supreme Court — Appellate Division |
| Parties | CONNIE M. PERRELLI et al., Respondents,<BR>v.<BR>JOSEPH E. ORLOW et al., Appellants. |
On January 20, 1997, in response to a request for delivery of a newspaper on behalf of her employer, plaintiff Connie M. Perrelli (hereinafter plaintiff) arrived at defendants' residence in the Village of South Glens Falls, Saratoga County. Allegedly because she could observe no other viable route from her position in front of the house, plaintiff crossed the snow-covered front lawn by means of an icy path of footprints in the snow in order to carry out her instructions to deliver the newspaper to a side porch of the residence. After delivering the newspaper and while retracing her steps across the lawn, she slipped and fell.
As a result of her injuries, plaintiff and her husband derivatively commenced this action alleging negligence for defendants' failure to properly maintain their premises or warn the public of a dangerous condition. After completion of the parties' examinations before trial, defendants moved for summary judgment dismissing the complaint for plaintiffs' failure to establish a prima facie case of negligence. Specifically, alleging that plaintiff failed to avail herself of a cleared walkway connecting the side porch to a cleared driveway, defendants contended that they owed no duty to clear the area where she fell and that the condition of their premises was the occasion for, but not a proximate cause of, her fall. Finding questions of fact concerning the accessibility of defendants' residence, Supreme Court denied the motion. Defendants appeal.
As landowners, defendants owed a duty to exercise reasonable care in maintaining their property in a safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk and the foreseeability of a potential plaintiff's presence on the property (see, Basso v Miller, 40 NY2d 233, 241). Most relevant here, "[t]he scope of this duty is measured in terms of foreseeability" (Pizzola v State of New York, 130 AD2d 796; see, Danielenko v Kinney Rent A Car, 57 NY2d 198, 204). Notably, "[w]hat accidents are reasonably foreseeable, and what preventive measure should reasonably be taken, are ordinarily questions of fact" (Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539). Questions of foreseeability may be determined as a matter of law only when a single inference can be drawn from the undisputed facts (see, Hessner v Laporte, 171 AD2d 999).
We initially reject defendants' assertion for the first time on appeal that they did not have actual or constructive notice of the condition that caused plaintiff's fall. Defendants did not assert a lack of notice in their motion to dismiss, and plaintiffs had no cause to address it. Even...
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