| Slater v Ianucci |
| 2007 NY Slip Op 51750(U) [16 Misc 3d 1139(A)] |
| Decided on September 14, 2007 |
| Supreme Court, Kings County |
| Saitta, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Reed Slater, Plaintiff,
against Robert J. Ianucci, Sonia O. Ewers, Clocktower Properties, LLC, and Eddy Steinhauer d/b/a Clocktower Art Space, Defendants. Robert J. Ianucci, Sonia O. Ewers, Clocktower Properties, LLC, and Eddy Steinhauer d/b/a Clocktower Art Space Third Party Plaintiffs, - Against - Bettina Johae and Christopher Schade, Third Party Defendants. Robert J. Ianucci, Sonia O. Ewers, Clocktower Properties, LLC, and Eddy Steinhauer d/b/a Clocktower Art Space Second Third Party Plaintiffs, - Against - Liquoristerie De Provence, Baron Francois Ltd. and Chantal Ducler |
The Defendants,
Upon review and consideration of the Notice of Motion, dated January 31st, 2007, and the Affirmation in Support of Eric P. Tosca, Esq., counsel for IANUCCI, dated January 31st, 2007, and all exhibits annexed thereto; the Affirmation in Opposition to Defendants' Motion for Summary Judgment of Edward W. Armstrong, Esq., counsel for Plaintiff, dated April 11th, 2007, and all exhibits annexed thereto; the Reply Affirmation of Eric P. Tosca, Esq. dated April 17th, 2007, and all exhibits annexed thereto; after oral arguments, all the proceedings had herein and after due deliberation, the motion is granted.
Plaintiff commenced this action on June 28th, 2004. Defendants Robert T. Ianucci, i/s/h/a Robert J. Ianucci, Sonia O. Ewers and Clocktower Properties joined issue on October 21st, 2004. Defendant Eddy Steinhauer joined issued on March 31st, 2005. Defendants Robert T. Ianucci, i/s/h/a Robert J. Ianucci, Sonia O. Ewers, Clocktower Properties and Eddy Steinhauer commenced a third party action for contribution and indemnity against Bettina Johae and Christopher Schade on May 4th, 2005. Bettina Johae and Christopher Schade served a third party answer and counter-claim on July 7th, 2005. The counter-claim was discontinued on March 2nd, 2006.
The instant action arises from an accident which occurred on the roof of Defendant Ianucci's building located at 325 Gold Street, Brooklyn, NY, (hereinafter "the premises"), on November 22nd, 2003.
Plaintiff was attending an art opening on the ground floor of the premises with a friend, Eric Lippe, (hereinafter "Lippe"), which event they learned of by word of mouth. Slater and Lippe were invitees to the event which was contained to exclusively the ground floor of the building. They arrived at approximately 10:00 p.m. No elevator access was required to enter or exit the event. Absinthe was being served. Plaintiff alleges he consumed between one and two glasses of absinthe at the party. Plaintiff had last eaten at 6:00 p.m. Plaintiff said he was affected by the alcohol after the first drink. Lippe also drank absinthe but testified that it was unlikely he consumed a full cup of the absinthe stating, "I object to the glorification and exploitation of historical beverage [sic] ".
At some point in the evening, Plaintiff and Lippe decided to leave the event to attend another party. As they were exiting the building they noticed a freight elevator and decided to take the freight elevator to the roof to look at the view.They entered the freight elevator, which was open, and operated it to stop on the top floor. They neither asked for instructions nor [*2]permission to use the elevator, nor did they ask for permission to go up to the roof. Upon reaching the top floor, Plaintiff and Lippe entered a room and walked through it to reach a door which opened onto the roof. The room was not occupied and no lights were on. They neither turned on any lights nor did they announce themselves. They went through the door and onto the roof. No one else was on the roof.
Plaintiff was able to see the building in which he lived over the parapet wall but he wanted to get a better or different view of his building. Plaintiff and Lippe approached the water tower on the roof. Plaintiff chose to climb the ladder to the water tower to get a better view of his apartment. Lippe was observing nearby and described the ladder as "your average kind of rooftop ladder".Plaintiff climbed the ladder until his hands were on the top rung.Plaintiff asserts he was looking over his shoulder at his apartment when he slipped. He cannot recall whether his hands or feet slipped first. Plaintiff states that, "I reached back, could not grab a hold of the ladder.." and "I reached back and could not hold on", and that when he tried to re-grab the ladder he cut his hand. He also states that he had both hands on the ladder when he fell.
There was no precipitation. The rungs of the ladder were neither slippery nor wet, nor was the ladder shaky. Plaintiff states he was aware that there was a risk of falling off of ladders generally, and this ladder specifically when he climbed it.
Prior to and at the time of the incident, Plaintiff suffered from a condition he referred to as tremors, characterized by involuntary movement, which affected his hands. Plaintiff alleges the condition only affects his ability to draw.
ARGUMENTS
Defendants argue they are entitled to summary judgment as Plaintiff has failed to make out a prima facie case of negligence and there are no material issues of fact in dispute.
Specifically Defendants argue they owed no duty to Plaintiff because the dangers were obvious, because the Plaintiff's fall was not foreseeable, and because Defendants owed no duty to Plaintiff who was a trespasser at the time of the accident. They argue Plaintiff was aware or should have been aware of the risks associated with his behavior. They deny there was any defect in the ladder but assert that had there been a defect, Plaintiff assumed any risk by acting without authority to do so.
Plaintiff argues that foreseeability of a potential party on a landowner's property is sufficient to place the landowner of the duty to warn of dangerous conditions exiting on the property, such as the ill-equipped and otherwise dangerous ladder.
Plaintiff further argues that a property owner must use reasonable care to keep their property in a safe condition and the duty is not affected by Plaintiff's status as a trespasser or Plaintiff's conduct upon visiting Defendants' property.
Plaintiff asserts that the reasonableness of defendant's conduct depends upon whether defendant should have reasonably foreseen the presence of plaintiff or someone like plaintiff on the roof.
ANALYSIS
I.Summary Judgment is appropriate as there exists no triable issue of fact
A motion for summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law [*3]in directing judgment in favor of any party". CPLR §3212 (b).The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.
When considering a summary judgment motion, the Court is required to accept the Plaintiff's evidence as true and give it the benefit of "every reasonable inference which can be reasonably drawn from that evidence." Secof v. Greens Condominium, 158 AD2d 591, 551 NYS2d 563 (2nd Dept. 1990), citing, Goldstein v. Hauptman, 131 AD2d 724, NYS2d 783 (2nd Dept. 1987).
A court may grant summary judgment upon a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence sufficient to eliminate material issues of fact. Once met, the burden then shifts to the non-moving party to submit sufficient admissible evidence to demonstrate there is an issue of fact in dispute. CPLR 3212[b]
An owner is entitled to summary judgment in a premises liability action where they establish that they owed no duty to the injured party.
In a recent Court of Appeals case, the Court discussed the negilgence standard applicable to owners or occupiers. The Court stated although a duty may be defined based upon the facts of the case, it is a matter of law as to whether any duty exists in the first place. Rivera v. Nelson Realty, LLC., 7 NY3d 530 (2006).
The common law rule was that the nature of the duty owed by a landowner depended upon the status of the potential plaintiff on the land. This rule was modified by the Court of Appeals' decision in Basso v. Miller, 40 NY2d 233 (1976). The Basso Court held that there was a single standard of "reasonable care under the circumstances", regardless of the status of the injured party. Id.Thus the fact that Plaintiff did not have permission to climb the ladder does not alone mean the owner had no duty. The question was whether it was foreseeable that someone might climb the ladder.
In Rivera v. Nelson, 7 NY3d 530 (2006), the Court of Appeals was faced with the question as to whether the landlord was liable for injuries which resulted from its refusal to furnish radiator covers to its tenants, despite the tenants' requests they be furnished.
The Court determined there was a statutory duty imposed upon the landlord maintain the plaintiffs' apartment in good repair pursuant to Multiple Dwelling Law §78. It went on to state, however, that despite the fact that the plaintiffs recognized the potential hazard posed by the radiators being exposed, and despite their requesting the covers giving the landlord notice of the same, the landlord did not violate any duty owed to the plaintiffs under Multiple Dwelling Law §78. The Court held that because the radiators did not need repair, they did not malfunction in any way, nor did they constitute the type of hazardous condition of which would have exposed the landlord to common law liability. Id.
The Rivera Court held that the landlord was not negligent for injuries which likely would have been prevented had the radiator covers been provided because there was no defect which caused the loss. Id.
At bar, Plaintiff was not a tenant of the Defendants; there was no statutory or contractual duty between the parties. Therefore the analysis of whether there was a duty must look to whether the Defendants' acted with "reasonable care under the circumstances". Basso v. Miller, 40 NY2d 433 (1976). The first step in this analysis is to determine whether their was an unsafe condition or defect in the ladder.
In support of their position that there was no defective condition, Defendants submit the affidavit of John C. Becker, a licensed professional engineer in the State of New York, dated January 26th, 2007.
[*4]
Becker affirmed that based upon his inspection of the ladder that it is "sound as designed and installed", that the "subject ladder is reasonably safe for its intended use", and that "there are no applicable code provisions that apply to the ladder inasmuch as the building and the ladder predate the building code in the City of New York".Becker's affidavit is sufficient to place the burden on the Plaintiff to come forward with evidence of a defect in the ladder.
In response, Plaintiff submits the affidavit of his expert, Nicholas Bellizzi, a professional engineer, dated April 3rd, 2007.
Plaintiff's expert did not claim that the ladder was deteriorated or inadequately maintained, but essentially that it was inadequately designed.
First, Plaintiff asserts that the rungs of the ladder were undersized, measuring 0.60 inch in diameter, where the American National Standard Institute (ANSI) standards call for a diameter of 0.75 inch.However, Bellizi does not assert that this standard is required by statute, nor that it was the industry standard when the ladder was constructed.Second, Bellizzi asserts that certain fall protection devices such as safety belts and cages must be installed on ladders which exceed 24 feet in height pursuant to the ANSI standards. However, by Bellizzi's own admission, the ladder in question was less than 24 feet in height. Therefore it would not be required to have such fall protection devices.
Bellizzi opines, however, that due to the undersized nature of the rungs, the safety devices required for ladders over 24 feet should have been provided on this ladder. He states no authority to support his position.
Plaintiff's allegation that safety appurtenances are required on ladders which are otherwise unsafe is analagous with the requirements for handrails to secure certain stairs intended for public use. However, handrails, or in this case safety devices, are not required in all circumstances. "[U]nless a stairway in a store or other commercial or public premises comes within the purview of a statute requiring that handrails be provided, the owner may not be held liable for maintaining a dangerous stairway because of the absence of a handrail where the steps are in no way defective". Jung v. Kum Gang, Inc., 22 AD3d 441, 806 NYS2d 62 (2 Dept., 2005), citing 86 NY Jur. 2d, Premises Liability § 445.
Plaintiff has failed to demonstrate that the ladder is defective in any way that would require fall protection devices absent a statutory requirement. Plaintiff has not produced any regulation that requires fall protection devices on a ladder of this size.
Bellizzi also cites two sections of the New York Industrial Code, §§23-1.16 and 23-1.23, which he asserts are applicable to the ladder herein. He does not, however, cite what provisions of these sections wold apply to this ladder. Section 23-1.16 governs the provision of safety belts, harnesses, tail lines and life lines to employees by their employers. No part of the section applies to the design or maintenance of fixed ladders.
Section 23-1.21 containes various requirements for fixed or portable ladders. It does not require any fall protection devices or minimum rung diameter. None of its requirements are relevant to any of the claims asserted by Plaintiff. Plaintiff's expert fails to cite any specific provision of §23-1.21 which the ladder in question violates.
Further, NY Industrial Code Rule 23, sections 1.16 and 1.21 were added and made effective on June 1st, 1972. No mandate has been submitted which required that building [*5]owners whose ladders predate 1972 retroactively conform to the later sections' requirements.
Bellizzi makes a conclusory statement that "the undersized rungs were a proximate cause of Mr. Slater's accident and his resulting injuries". Plaintiff admits that the ladder was not slippery, wet or shakey at the time he fell. The Plaintiff's theory is that the ladder was defective inasmuch as Plaintiff could not prevent his fall after he slipped. However, he provides no factual basis for his conlusion that the size of the rungs either caused his fall or impeded his ability to prevent his fall after he slipped.
Finally, Bellizzi notes that there were no warning signs posted near the ladder. However, a premises owner does not have a duty to warn of open and obvious conditions that are not inherently dangerous. Hinchey v. White Willow, LLC, 42 AD3d 483, 839 NYS2d 230, (2 Dept., 2007). (See also, Testaverde v. Lyman, 17 AD3d 574, 576, 793 NYS2d 182; Popek v. State of New York, 279 AD2d 622, 719 NYS2d 708; Rice v. New York City Hous. Auth., 239 AD2d 400, 658 NYS2d 347; de Pena v. New York City Tr. Auth., 236 AD2d 209, 210, 653 NYS2d 327; Diven v. Village of Hastings-On-Hudson, 156 AD2d 538, 539, 548 NYS2d 807; Barnaby v. Rice, 75 AD2d 179, 182, 428 NYS2d 973, affd. 53 NY2d 720, 439 NYS2d 354, 421 NE2d 846). The condition of this simple fixed water tower ladder and its lack of any fall protection devices was open and obvious to any user. Plaintiff failed to raise any material issue of fact to support its theory that there was a defect in the ladder, and that such defect was a proximate cause of the Plaintiff's loss.
Defendants also raise the issue of comparative negligence stating that Plaintiff's conduct in taking it upon himself to go out on the roof, climbing to the top of the water tower ladder in the dark, after consuming absinthe, and then looking over his shoulder, contributed to his injury.
We need not reach that issue as Plaintiff has failed to make out a claim of negligence against the Defendants. Rivera v. Nelson Reality, LLC., 7 NY3d 530 (2006).Planitiffs other causes of action must fail as they are contingent upon the premises liability claim.
Wherefore the motion to dismiss is granted as against the Ianucci Defendants for the reasons stated herein.
The foregoing constitutes the decision and order of this court.
E N T E R,
_______________________________
J. S. C.