Monday, July 18, 2016

A fall in a City-owned garden.

Practice point:  The Appellate Division reversed the motion court and dismissed this action where plaintiff allegedly fell in a City-owned community garden when he tripped over the edge of a concrete slab bordering a patch of dirt and was lacerated by rebar or wires sticking out of the concrete. Defendant-non-profit organization provided funding and assistance for a renovation project in the garden that was completed three years before plaintiff's accident.

To the extent the non-profit could be held liable to plaintiff for creating an unreasonable risk of harm, it demonstrated through the its assistant director's testimony that it did not create the tripping hazard, but assisted in upgrading the deteriorated garden and clearing it of tripping hazards. In addition, the assistant director testified that he did not see any condition of wires or rebar sticking out of concrete in the garden during the renovation project, and plaintiff, who had been a member of the garden for nine years, could not say how long the condition existed before his accident.

In opposition, neither plaintiff nor the City presented any evidence.

Student note:  Speculation by plaintiff and the City that the non-profit may have been involved in construction in the area of plaintiff's fall, which may have caused the defective condition, is insufficient to raise an issue of fact,

Case:  Sewesky v. City of New York, NY Slip Op 05234 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  A time-barred negligence claim.