New York State Supreme Court, Appellate Division, Fourth Judicial Department
Visible and apparent – Constructive notice
Lobianco v. City of Niagara Falls, et al.
Appealed from Supreme Court, Niagara County
Background: The plaintiff commenced a negligence action after sustaining injuries when he stepped off a curb onto a street and fell into an uncovered storm drain. The grate for the storm drain was located at the bottom of the four-foot-deep drain owned and maintained by the defendant. The plaintiff appealed from an order granting summary judgment for the defendant.
Ruling: The Appellate Division reversed and reinstated the complaint. The court held that the defendant failed to meet its burden that the dangerous condition was not visible and apparent for a sufficient length of time to permit them, in the exercise of reasonable care, to discover and remedy it. The court noted the plaintiff’s testimony that he did not notice the uncovered storm drain before he stepped off the curb onto the street does not establish the defendants’ entitlement to judgment as a matter of law. The plaintiff further testified that he was looking for oncoming traffic and noticed the storm drain immediately after he fell. Furthermore, photographs of the drain raise a triable issue of fact as to whether the dangerous condition was visible and apparent. Finally, there was no evidence as to when maintenance crews last cleaned out or inspected the drain.
John A. Collins, of Lipsitz Green Scime Cambria, for the plaintiff-appellant; Kevin J. Federation, of Rupp Baase Pfalzgraf Cunningham, for the defendants-respondents.