From Casetext: Smarter Legal Research

Eisenhart v. Marketplace

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 4, 1991
176 A.D.2d 1220 (N.Y. App. Div. 1991)

Opinion

October 4, 1991

Appeal from the Supreme Court, Monroe County, Wesley, J.

Present — Callahan, A.P.J., Denman, Green, Balio and Davis, JJ.


Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendants' motion for summary judgment dismissing plaintiffs' complaint in this slip and fall case. In their complaint, plaintiffs allege that defendants, who together owned the common area of the shopping mall where the fall occurred, were negligent: 1. "in the manner and method by which they constructed the platform and permitted the continuance of the tile surface located on the raised platform"; 2. "in not providing and maintaining a handrail at the step area"; and 3. "in failing to warn patrons of the risk traverssing [sic] the area". Defendants answered, denying all material allegations of negligence and setting forth the affirmative defense of comparative fault.

Since plaintiffs' theory of liability is predicated on the notion that the construction of the common area where the fall occurred was "inherently dangerous" (Miller v Gimble Bros., 262 N.Y. 107, 108), defendants, in order to succeed on their motion for summary judgment, were required to show that such area was not, as a matter of law, inherently dangerous (see, CPLR 3212; Iselin Co. v Mann Judd Landau, 71 N.Y.2d 420, 425). In our view, defendants failed to meet this burden (see, Hantz v Fishman, 155 A.D.2d 415; Serrano v Spengler, 96 A.D.2d 935; Arnold v Egner, 3 A.D.2d 727; Richards v Olsen, 259 App. Div. 111 2, rearg and lv denied 260 App. Div. 828). We further note that, despite the fact that defendants may have complied with the applicable building construction code regarding handrails (see, 12 NYCRR 16.5), such compliance does not necessarily preclude a jury from finding that the absence of a handrail was part of or contributed to any inherently dangerous condition existing in the area of the fall (see, Eidlitz v Village of Dobbs Ferry, 97 A.D.2d 747, 748).


Summaries of

Eisenhart v. Marketplace

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 4, 1991
176 A.D.2d 1220 (N.Y. App. Div. 1991)
Case details for

Eisenhart v. Marketplace

Case Details

Full title:PAULINE EISENHART et al., Appellants, v. THE MARKETPLACE et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 4, 1991

Citations

176 A.D.2d 1220 (N.Y. App. Div. 1991)
576 N.Y.S.2d 713

Citing Cases

Van Orden v. St. Cecilia's Church

She alleges that the step down from the landing to the walkway is deceptive and, in the absence of an…

Powers v. St. Bernadette's Roman Catholic

Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint. We agree…