Wade Clark Mulcahy LLP

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 <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/05/Abramson-v.-Janowskis-Hamburgers-Inc.pdf">Abramson v. Janowski's Hamburgers, Inc</a>.,</em> 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 <em>Abramson</em>, 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 <a href="agibbs@wcmlaw.com">Andrew Gibbs</a>.