Rossal–Daub v. Walter

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETERS
• Citation: 97 A.D.3d 1006,948 N.Y.S.2d 765,2012 N.Y. Slip Op. 05687
• Decision Date: 19 July 2012
• Parties: Sandra L. ROSSAL–DAUB, Formerly Known as Sandra L. Rossal, Appellant, v. George A. WALTER et al., Respondents. (And a Third–Party Action.)

97 A.D.3d 1006
948 N.Y.S.2d 765
2012 N.Y. Slip Op. 05687

Sandra L. ROSSAL–DAUB, Formerly Known as Sandra L. Rossal, Appellant,
v.
George A. WALTER et al., Respondents.
(And a Third–Party Action.)

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

July 19, 2012.

[948 N.Y.S.2d 766]

Michael D. Altman, South Fallsburg, for appellant.

Michael Frey, Barryville, for respondents.

Before: PETERS, P.J., SPAIN, MALONE JR., KAVANAGH and GARRY, JJ.

PETERS, P.J.

[97 A.D.3d 1006]Appeal from a judgment of the Supreme Court (Sackett, J.), entered January 24, 2011 in Sullivan County, upon a verdict rendered in favor of defendants.

As set forth in a prior decision of this Court (58 A.D.3d 992, 871 N.Y.S.2d 751 [2009] ), plaintiff commenced this action seeking damages for personal injuries she sustained after a rotting plywood board covering a silage hole in the hayloft of defendants' barn gave way beneath her. At the time of the accident, plaintiff was visiting third-party defendant, Jeffrey Daub, whom defendants had permitted to store hay in their barn since the mid–1980s. Upon plaintiff's appeal from Supreme Court's grant of defendants' motion for summary judgment, we determined that defendants did not have actual notice of the alleged dangerous condition—i.e., the rotted plywood board—but concluded that issues of fact remained with respect to whether defendants had relinquished control of the barn to Daub and whether they fulfilled their duty to inspect and maintain the hayloft ( id. at 995–996, 871 N.Y.S.2d 751). Consequently, we reversed Supreme Court's dismissal of the complaint and remitted the matter for further proceedings ( id. at 996, 871 N.Y.S.2d 751).

A jury trial ensued and, following the close of all proof, plaintiff requested that Supreme Court charge the jury that it must find in her favor should it determine that “the plywood board covering the [silage] hole was subject to decay and deterioration due to weather and time and that [defendants] conducted no inspection of the board.” Plaintiff also moved for a directed verdict based on defendants' failure to conduct any inspections of the silage hole. Supreme Court denied the charge but reserved decision on plaintiff's motion. The jury ultimately concluded that defendants retained control of the barn, but were not negligent in their maintenance of the hayloft floor. [97 A.D.3d 1007]Plaintiff moved to set aside the verdict as against the weight of the evidence and for a mistrial based on Supreme Court's failure to charge the jury as requested. Supreme Court denied both motions, as well as plaintiff's earlier motion for a directed verdict, and entered judgment in defendants' favor. Plaintiff appeals. ¹

We disagree with plaintiff's assertion that Supreme Court erred in not instructing the jury as requested. Defendants, as the parties found to be in control of the barn, had a duty to maintain the premises in a reasonably safe condition ( see Galindo v. Town of Clarkson, 2 N.Y.3d 633, 636, 781 N.Y.S.2d 249, 814 N.E.2d 419 [2004];Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976];

[948 N.Y.S.2d 767]

Miller v. Consolidated Rail Corp., 41 A.D.3d 948, 950, 837 N.Y.S.2d 783 [2007],affd.9 N.Y.3d 973, 848 N.Y.S.2d 599, 878 N.E.2d 1015 [2007] ). “The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” ( Taylor v. Lands End Realty Corp., 93 A.D.3d 1062, 1063, 941 N.Y.S.2d 293 [2012] [internal quotation marks and citation omitted]; see Peralta v. Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 [2003];Basso v. Miller, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Whether a particular duty exists and the extent thereof is a question of law to be determined by the court ( see 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 288, 727...