167 A.D.2d 741 | N.Y. App. Div. | 1990
Appeal from an order of the Supreme Court (Plumadore, J.), entered September 25, 1989 in Clinton County, which, inter alia, denied defendant City of Plattsburgh’s motion for summary judgment dismissing the complaint against it.
On February 8, 1986, plaintiff was struck by an automobile operated by defendant Charles G. Mussaw while she was jogging in the roadway of State Route 314 in the City of Plattsburgh, Clinton County. In this action to recover damages
Plaintiff has called upon this court to expand the liability of the city for damages for personal injuries sustained by a jogger, not as the result of any affirmative act or omission on the part of the city, but solely because she chose to run in the public roadway where she was struck by an automobile driven by a third party. Plaintiff has assigned liability to the city for its alleged negligence, in this instance, as the possessor of land.
Like any other owner or occupier of land, the city "is only under a duty to exercise 'reasonable care under the circumstances’ to prevent injury to those who come [on to the property]” (Akins v Glens Falls City School Dist., 53 NY2d 325, 329, quoting Basso v Miller, 40 NY2d 233, 241). Indeed, " '[a] landowner must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ ” (Basso v Miller, supra, at 241, quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100, cert denied 412 US 939). It is equally well established that before a defendant may be found liable for its negligence, a duty must exist, the breach of which is the proximate cause of the plaintiff’s injury (Palsgraf v Long Is. R. R. Co., 248 NY 339, 342). In Vogel v West Mountain Corp. (97 AD2d 46, 48), we held that "[t]he symme
We first note that there was a sidewalk which ran between the roadway and the bike/hike trail but that plaintiff makes neither allegations of negligence by, nor reference to, any duty upon the city to have kept the sidewalk free of snow and ice. In any event, it is clear that the city’s failure to clear snow and ice from a public sidewalk is, by itself, legally insufficient to establish affirmative negligence (see, Radicello v Village of Spring Val, 115 AD2d 466; see also, Freeman v County of Nassau, 95 AD2d 363).
Were we to hold otherwise, we would still be constrained to grant dismissal for failure to plead and prove compliance with the prior written notice requirement in section 143 of the City Charter. Plaintiff concedes noncompliance but contends that she was not prevented from using the trail because of a physical defect in its surface. Rather, she argues that she could not use it because it was covered with snow, a condition obvious to the city making the required notice unnecessary. We cannot agree. The City Charter states that "[n]o civil action shall be maintained against the City for * * * injuries * * * sustained in consequence of any street, highway * * * sidewalk, crosswalk * * * being * * * unsafe, dangerous or obstructed, or in consequence of the existence of snow or ice thereon”. This court recently held that "without prior written notice of a defect caused by snow and ice, the plaintiff must demonstrate affirmative negligence in order to hold a defendant municipality liable, and the failure to clear snow and ice from a public sidewalk is legally insufficient to establish affirmative negligence” (Kirschner v Town of Woodstock, 146 AD2d 965, 966). We see little difference between the hike/bike trail in the instant case and, accordingly, hold that plaintiff’s noncompliance with the statute requires dismissal of the complaint.
Were we to hold otherwise and reach the merits, we would still grant summary judgment in favor of the city. This court may search the record (see, CPLR 3212 [b]) and grant the relief to which a party is entitled (see, Sky Four Realty Co. v C.F.M. Enters., 128 AD2d 1011, 1013; see also, Howell v Davis, 58 AD2d 852, 853, affd 43 NY2d 874). The record clearly shows the bike/hike trail was not the proximate cause of the accident. In her deposition, plaintiff testified that she knew she would not be able to use the bicycle path and that she
Order reversed, on the law, without costs, motion granted and complaint and cross claim dismissed against defendant City of Plattsburgh. Kane, J. P., Weiss, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.
. We note Supreme Court held that "[t]hus, whether this is a 'sidewalk’ to which the usual wintertime standards of care, duty and breach apply cannot be answered until trial”. The court failed to recognize that a sidewalk, separate from the trail, existed at the accident scene.
. The principle referred to was expressed by the dissent in Pulka v Edelman (40 NY2d 781, 787) wherein it was stated that, "In the classic language of Palsgraf v Long Is. R. R. Co. (248 NY 339, 344), '[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports