Here at the Pospis Law Blog, I try to keep the articles and posts somewhat topical. As it is Christmas Eve, I thought a Christmas tree-themed post was appropriate.
Unfortunately, this is not a happy Christmas tree tale, but rather one in which a Christmas tree was the alleged cause of an injury. (I tried to locate a case addressing whether a reindeer had “vicious propensities” or a product defect case involving candy canes, but no luck.)
In this case, Nunez v. Wah Kok Realty Corp., the Appellate Division, First Department recently affirmed the trial court’s decision denying defendant’s motion for summary judgment, on the ground that “[t]riable issues of fact exist as to whether the large, spreading Christmas tree on which plaintiff tripped was an open and obvious and not inherently dangerous condition.”
The appellate court’s decision is rather sparse; therefore, for an understanding of the underlying facts and issues, reference should be made to the trial court’s April 16, 2013 opinion. That court summarized the facts as follows:
On January 13, 2010, plaintiff Emiliana [Nunez] tripped on a Christmas tree in front of the Building [located at 250 Mulberry Street in Manhattan] and fell to the floor hitting her right arm and shoulder (Accident). Thereafter, plaintiffs [Emiliana and her husband Alejandro, suing derivatively] commenced this action against defendant alleging that defendant was negligent in maintaining the public sidewalk in front of the Building in a reasonably good and safe condition. Specifically, plaintiffs allege that on the date of the Accident, the sidewalk in front of the Building had, inter alia, a Christmas tree discarded near the curb which caused plaintiff Emiliana to trip and fall.
Defendant moved for summary judgment, arguing that it did not breach any duty to plaintiffs and that it complied with the Department of Sanitation’s regulations for the proper disposal of Christmas trees.
Plaintiff opposed, arguing that (inter alia) defendant’s evidence “lacks any statement to establish, as a matter of law, that defendant did not have notice, either actual or constructive, that the Christmas tree was a tripping hazard”, that “whether the Christmas tree was an open and obvious condition … is an issue of fact as to plaintiff[‘s] comparative negligence”, and that “there is an issue of fact as to whether defendant complied with the [Department of Sanitation] guidelines.”
The trial court held that defendant failed to establish summary judgment as a matter of law:
Here, defendant has failed to demonstrate the absence of a material issue of fact as to notice, or that it lacked notice. In fact, defendant has failed to provide any sufficient evidence that would tend to show periodic or regular inspections of the sidewalk, or any evidence by someone with personal knowledge as to how defendant’s employees disposed of Christmas trees at the time of the Accident. The testimony of assistant building manager Michelle Zhang does not provide any indication as to the regular procedures followed by defendant regarding disposal of Christmas trees, or the inspection of the sidewalk abutting the Building at the time of the Accident. In fact, Ms. Zhang had no personal knowledge as to the procedures followed by the superintendent regarding garbage disposal. Thus, defendant failed to provide, through the deposition of its employees, any testimony or evidence as to the sidewalk, or the Christmas tree, prior to the Accident. … Drawing all reasonable inferences in favor of plaintiffs, defendant is not entitled to summary judgment as defendant has failed to establish lack of notice.
Additionally, … both defendant and plaintiffs proffered only an attorney’s affirmation in support of their respective positions. It is well settled that a bare affirmation of … [an] attorney who demonstrated no personal knowledge … is without evidentiary value and thus unavailing. Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. Here, in support of its motion, defendant provides a copy of the alleged guidelines from the Department of Sanitation regarding disposal of Christmas trees without providing any foundation for its inclusion. Thus, defendant has failed to establish that it properly disposed of the Christmas tree in accordance with the guidelines set by the Department of Sanitation at the time of the Accident. As defendant has failed to establish entitlement to summary judgment as a matter of law, despite the sufficiency of plaintiffs’ opposing papers, defendant’s motion for summary judgment must be denied.
As noted, the appellate court only referenced issues of fact as to whether the tree was an “open and obvious and not inherently dangerous condition” and did not address, for example, the question of whether defendants properly complied with the tree-disposal guidelines.