Premises Liability Claim Brought by Plaintiff After Tripping Over a Sidewalk Defect*

Tull Construction Corp moves for permission to file a late motion for summary judgment and, if granted permission, seeks dismissal of this premises liability claim.

The plaintiff was injured when he tripped and fell over "an area of uneven and elevated concrete which covered a metal cap on the sidewalk" in front of property known as 10 Division Street.

Tull argues that it would be unfair to be forced to participate in a trial when, by circumstances beyond its control, it was brought into the action too late to be able to move for and be granted summary judgment at the appropriate time.

A motion for summary judgment may not be made later than 120 days after the filing of the notice issue, except with leave of court on good cause shown. Where a motion for summary judgment is not filed within 120 days and there is no good cause offered for the delay, the parties forfeit their opportunity to have their motion considered by the court and must proceed to trial.

Tull originally brought its motion to show cause within 45 days of the filing by Division Ten. Given the alacrity with which it brought its original summary judgment motion, and the circumstance of being brought into the litigation only after notice was filed, Tull establishes good cause for the unavoidable lateness in bringing this motion. Its motion to file a summary judgment motion to dismiss the premises liability claim was granted.

The plaintiff, a police officer, said that while on duty he twisted his ankle and heard a pop as he walked on the sidewalk in front of 10 Division Street. He stated that he tripped on "some kind square metal object with cement over it sticking up in the street on the sidewalk."

The witness for Division 10 Holdings testified that she has owned the building for more than 50 years and the commercial tenant renting the first floor was Clever Tone Inc., who leased from about 2001-2003.

The witness took photographs of the sidewalk in about 2003, after the plaintiff's accident. She thought she first noticed the object in the sidewalk "around beginning of 2001." She had "no idea" whether it was put in the sidewalk at the time the City replaced the sidewalk.

Privately owned installations, such as for fuel oil or electrical service, were found at the front of Division 10, and they were treated by upgrading or removing, after contacting the proper person concerning their existence.

A motion for summary judgment in a premises liability claim is a drastic measure and to be used sparingly. Summary judgment is proper when there are no issues of triable fact. Issue finding rather than issue determination is its function. The evidence will be construed in the light most favorable to the one moved against.

To prevail on a summary judgment motion, the moving party must produce evidentiary proof to warrant the direction of judgment in its favor. Once this burden is met, the burden shifts to the opposing party to submit proof to create a question of fact requiring a trial.

To establish a prima facie case of negligence, a plaintiff must demonstrate:

(1) that the defendant owed him or her a duty of reasonable care,

(2) there was a breach of that duty, and

(3) a resulting injury caused by the breach.

The threshold question in tort cases such as this premises liability claim is whether the alleged tortfeasor owed a duty of care to the injured party.

It is the court's responsibility to determine whether there is a duty, and "involves a very delicate balancing of such considerations as logic, common sense, science, and public policy".

At the time of plaintiff's accident, the law held that an abutting landowner was not responsible for maintaining the adjacent sidewalk absent some statute or other regulation. In order to hold the owner liable for a pedestrian's injuries, it must be shown that it created the dangerous condition or exercised a special use of the sidewalk.

This premises liability claim must be decided on the law, as it existed prior to recent amendments to the sidewalk law. There is nothing offered in any of the materials before the court to show that Division Ten created the dangerous condition such as installing the object or repairing the sidewalk.

As long as Division 10 remains a defendant it should be permitted to pursue its cause of action against the party who poured the concrete, Tull.

It was ordered that the defendant Tull Construction Co.'s motion seeking permission to file a late summary judgment motion be granted, and upon consideration of the motion, it was ordered that the motion for summary judgment and dismissal of the complaint be denied.

The parties were directed to appear in Supreme Court for jury selection, as the initial premises liability claim would be proceeding to trial.