Premises Liability Claim Brought by Plaintiff After Tripping Over a
Sidewalk Defect*
In this premises
liability claim the plaintiff asserts he tripped over a defect in a
sidewalk and is seeking damages for personal injuries. The plaintiff in
this case is Dave Velder. The defendants are Division Ten, Clever Tone
and the City of New York as well as Edison Co and Tull Construction.
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.
|
*This
case example is for educational purposes only. It is based on actual
events although names have been changed to protect those involved.
|
Return
from Premises Liability Claim to Slip and
Fall Accident
Return
from Premises Liability Claim to Personal
Injury Settlement Guide
Personal Injury Areas
The accuracy of information on this site is not guaranteed. Information on this site is strictly opinion and should not be considered formal legal advice. Under no circumstances should the information on this site be used to make decisions about the proper course of a legal matter.Click below to read our full User Agreement, Disclaimer and Copyright Information.

|