Dangerous Condition – Wade Clark Mulcahy LLP

by Suzan CherichettiMay 19, 2023 Trip and Fall, Dangerous Condition, Personal Injury, Summary Judgment, New York0 comments

Step On A Crack, Creator Needs To Pay To Fix Your Mother’s Back (NY)

If there is a triable issue of fact as to whether the actions of the defendants caused or created the hazardous condition that allegedly caused the plaintiff’s accident, summary judgment will be denied. Recently, the Appellate Division, Second Department overturned the lower court’s granting of summary judgment to the defendant in Abramson v. Janowski’s Hamburgers, Inc., 2023 NY Slip Op 02293 (2d Dep’t May 3, 2023). Plaintiff was allegedly injured when she tripped and fell over a crack in a sidewalk in Rockville Centre. Defendants operated a wholesale and retail hamburger products business, with a loading dock located across the street from the sidewalk crack that allegedly caused the plaintiff’s accident. Defendants were awarded summary judgment in the trial court. Liability for a dangerous condition on real property, is based on ownership, occupancy, control, or special use of the property. The existence of one or more of these elements gives right to a duty of care. However, liability can also be imposed upon a party that created the dangerous or defective condition. In opposition to defendant’s summary judgment motion in Abramson, plaintiff submitted the deposition testimony of an individual who had lived next door to the defendants’ premises for nearly 56 years. The neighbor testified that the street on which he lived was a dead-end street that was mostly residential, and that the drivers of 18-wheel tractor-trailers that made deliveries to the defendants’ business, while maneuvering into the driveway of the premises, frequently drove onto the sidewalk across the street, thereby creating the condition that caused the plaintiff to trip and fall. Furthermore, the neighbor had, on numerous occasions, observed Vogelsberg and other employees of Janowski’s Hamburgers, Inc., and Bianca Burgers, LLC, directing truck drivers onto the sidewalk while assisting them in backing up to the loading dock. As such, the Court ruled that this evidence was sufficient to raise a triable issue of fact whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident. With that, the decision was reversed on appeal. This case serves as a reminder of the salience of causation. Thanks to Rebecca Pasternak for her contribution to this article. Should you have any questions, please contact Andrew Gibbs.

by Rachel WadeMay 12, 2023 Trip and Fall, Dangerous Condition, Appeal, New York, Of Interest0 comments

Your Neighbor’s Point of View Can Help Overcome Motion for Summary Judgment (NY)

When a defendant obtains a summary judgment against a plaintiff, the fight does not end there. While the discretion ultimately remains with the court, a summary judgment may be reversed on appeal if the opposing party submits evidence that raise a triable issue of material fact.

For example, in Abramson v Janowski’s Hamburgers Inc. 2023 NY Slip Op 02293 (2d Dep’t May 3, 2023), plaintiff allegedly was injured when she tripped and fell over a crack in a sidewalk located across the street from the defendants’ wholesale and retail hamburger products business. The hamburger defendants used their loading dock and driveway across the street from the sidewalk crack that allegedly caused the accident.

Plaintiff subsequently commenced a lawsuit against the defendants alleging the defendants were negligent in that the defective sidewalk condition was caused and created by trucks that drove onto the sidewalk while making deliveries to the defendants’ premises.

Thereafter, the defendants moved to dismiss the complaint as asserted against them. The lower court granted the defendants’ motion and the plaintiff appealed.

Thereafter, the second department reversed the lower court’s decision to grant the defendant’s summary judgment motions. Although as a general proposition, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control or special use of the property, liability can also be imposed upon a party that creates the dangerous or defective condition.

Here, the plaintiff submitted deposition testimony of an individual that resided next door to the defendants’ premises for nearly 56 years. The neighbor testified he lived on that street for many years and witnessed drivers of 18-wheel tractor-trailers make deliveries to the defendants and while doing so, maneuvered into the driveway and frequently drove onto the sidewalk across the street. As such, the neighbor witnessed employees of the burger companies direct the truck drivers onto the sidewalk to use their loading dock.

Accordingly, the neighbor’s testimony was sufficient to raise a triable issue of fact as to whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident. Therefore, the defendants’ motion for summary judgment was reversed and denied.

Thank you to Lauren Howard for her contribution to this post. Should you have any questions, please contact Matthew Care.