        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1183
CA 12-00417
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


JAN M. HAYES, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TEXAS ROADHOUSE HOLDINGS, LLC AND TEXAS
ROADHOUSE MANAGEMENT CORP.,
DEFENDANTS-APPELLANTS.


DONNA LAW FIRM, P.C., MINNEAPOLIS, MINNESOTA (LESLIE A. GELHAR, OF THE
MINNESOTA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND GOLDBERG
SEGALLA LLP, BUFFALO, FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Ralph
A. Boniello, III, J.), entered January 31, 2012 in a personal injury
action. The order denied defendants’ motion for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she tripped and fell over a curb
separating a sidewalk and a landscaped area on the premises of a
restaurant owned and maintained by defendant Texas Roadhouse Holdings,
LLC and allegedly operated by defendant Texas Roadhouse Management
Corp. Plaintiff alleged in her complaint that defendants were
negligent, inter alia, in installing the curb between a bench outside
the restaurant and the door to that facility, and in failing to warn
of a tripping hazard in the area of the bench. Supreme Court denied
defendants’ motion for summary judgment dismissing the complaint, and
we affirm.

     We note at the outset that “[i]t is beyond dispute that
landowners and business proprietors have a duty to maintain their
properties in [a] reasonably safe condition” (Di Ponzio v Riordan, 89
NY2d 578, 582). In support of their contention that the curb was in a
reasonably safe condition at the time of plaintiff’s fall and thus
that they were not negligent in installing the curb at that location,
defendants submitted evidence establishing that the curb complied with
applicable building codes, zoning ordinances, and zoning standards.
Evidence of a defendant’s compliance with industry standards, however,
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                                                         CA 12-00417

does not establish as a matter of law that such defendant was not
negligent (see Baity v General Elec. Co., 86 AD3d 948, 950-951).
“[C]ompliance with customary or industry practices is not dispositive
of due care but constitutes only some evidence thereof” (Miner v Long
Is. Light. Co., 40 NY2d 372, 381). Likewise, compliance with
applicable regulations is not dispositive on the issue of negligence;
“ ‘such compliance does not necessarily preclude a jury from finding
that the . . . [device governed by the regulations] was part of or
contributed to any inherently dangerous condition existing in the area
of [plaintiff’s] fall’ ” (Bamrick v Orchard Brooke Living Ctr., 5 AD3d
1031, 1032).

     The issue before us is thus whether defendants established as a
matter of law that the curb was not inherently dangerous (see Powers v
St. Bernadette’s R.C. Church, 309 AD2d 1219, 1219). The determination
of such an issue “depends on the peculiar facts and circumstances of
each case and is generally a question of fact for the jury” (Trincere
v County of Suffolk, 90 NY2d 976, 977 [internal quotation marks
omitted]), and we conclude that defendants failed to meet their
initial burden on the motion (see Maio v John Andrew, Inc., 85 AD3d
741, 742; Powers, 309 AD2d at 1219; see generally Zuckerman v City of
New York, 49 NY2d 557, 562). Although plaintiff’s deposition
testimony establishes that she did not notice the curb before tripping
on it, plaintiff also testified at her deposition that she did not
look for the curb immediately before the accident, and that she was
following two friends into the restaurant at that time. Photographs
submitted by defendants in support of the motion show that the curb
was in proximity to a bench on which plaintiff sat immediately before
her fall, and that the curb is the same color as the sidewalk where
plaintiff was walking at the time of her accident. Inasmuch as
defendants failed to meet their initial burden of establishing that
the curb was not inherently dangerous as a matter of law, we need not
consider the sufficiency of plaintiff’s opposing papers (see generally
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

     We further conclude that defendants failed to establish as a
matter of law that the hazard posed by the curb was open and obvious
and thus that they had no duty to warn plaintiff of a tripping hazard.
It is well established that there is no duty to warn of an open and
obvious dangerous condition (see Tagle v Jakob, 97 NY2d 165, 169),
“because ‘in such instances the condition is a warning in itself’ ”
(Mazurek v Home Depot U.S.A., 303 AD2d 960, 962). “Whether a hazard
is open and obvious cannot be divorced from the surrounding
circumstances . . . A condition that is ordinarily apparent to a
person making reasonable use of his or her senses may be rendered a
trap for the unwary where the condition is obscured or the plaintiff
is distracted” (Calandrino v Town of Babylon, 95 AD3d 1054, 1056
[internal quotation marks omitted]; see Gordon v Pitney Bowes Mgt.
Servs., Inc., 94 AD3d 813, 814-815; Katz v Westchester County
Healthcare Corp., 82 AD3d 712, 713; see also Gustin v Association of
Camps Farthest Out, 267 AD2d 1001, 1002). “Some visible hazards,
because of their nature or location, are likely to be overlooked . . .
, and the facts here simply do not warrant concluding as a matter of
                                 -3-                         1183
                                                        CA 12-00417

law that the [curb] was so obvious that it would necessarily be
noticed by any careful observer, so as to make any warning
superfluous” (Juoniene v H.R.H. Constr. Corp., 6 AD3d 199, 200-201;
see Surujnaraine v Valley Stream Cent. High School Dist., 88 AD3d 866,
866-867; Cassone v State of New York, 85 AD3d 837, 838-839; Shah v
Mercy Med. Ctr., 71 AD3d 1120, 1120; Westbrook v WR Activities-Cabrera
Mkts., 5 AD3d 69, 72).

     Contrary to defendants’ further contention, the court properly
concluded that they are not entitled to summary judgment on the ground
that they lacked notice of the alleged dangerous condition on the
restaurant premises. Actual or constructive notice of a defective
condition is not required where defendants created the dangerous
condition (see Cook v Rezende, 32 NY2d 596, 599; Viele v Vyverberg, 83
AD3d 1428, 1429) and, here, there is no dispute that defendants
created the curb at issue.




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
