The following papers numbered 92-114, inclusive, for Index No. 150692/2020, NYSCF, were fully submitted on the 17th day of August, 2023. DECISION AND ORDER Defendant moves for summary judgment in this trip and fall case. As described in further detail below, Defendant asserts that it cannot be liable as the tree roots that Plaintiff alleges caused her fall were not the proximate cause of Plaintiff’s injury. Instead, Defendant argues, Plaintiff’s accident was caused by her decision to walk on a perimeter area that was not meant to be used as a pedestrian walkway. Defendant argues alternatively that the Plaintiff cannot identify the cause of her fall. Finally, Defendant argues that the tree roots Plaintiff claims caused her fall were an open and obvious defect and also were a condition inherent to the landscape and, as such, Defendant cannot be liable as a matter of law. Defendant’s motion is denied for the reasons explained below. Background In this case, Plaintiff parked her car in a parking lot in order to attend an appointment with her medical provider. The spot she parked in had a “perimeter area,” on one side, essentially a planted area edged by a concrete curb, where a tree was growing. Plaintiff testified at her deposition that there was not enough room in the parking spot for her to exit and walk away from the car without stepping on the curb and into the perimeter area. Plaintiff testified that her appointment was late morning or early afternoon, and it was overcast at the time she visited the parking lot. Plaintiff also testified that this was the only parking spot available, and that she drove to the spot and pulled into it after she saw a car exit the spot. In its motion, Defendant, the owner of the parking lot, relies on the report of an expert who inspected the parking lot and parking spot at issue. The expert opined that, contrary to the Plaintiff’s deposition testimony, the manner in which Plaintiff parked her vehicle created the limited space between her vehicle and the landscaping bed which led to her to walk in the perimeter area. Defendant asserts that Plaintiff’s decision to walk in this area was the sole proximate cause of her incident. The expert further opined that the perimeter area did not constitute a walkway and therefore was not required to meet any applicable standards, codes, or ordinances applicable to walkways. Additionally, Defendant’s agent rented the same model of the vehicle Plaintiff parked on the day of the accident, albeit a vehicle from one model year later, but with the same dimensions as Plaintiff’s car. This rental vehicle was parked in the same parking spot and photographs were taken, showing the space taken up by the vehicle in the parking spot and the space left to ambulate when entering and exiting the vehicle. Defendant also relies upon the pictures taken by plaintiff’s daughter on the evening after the accident. Defendant has established that the spot was 109.5 inches wide and the PT Cruiser vehicle Plaintiff travelled in was 66 inches wide. The expert opined that there would be sufficient room for a person to exit and walk from this model vehicle if parked in the same parking spot, as there would be 20 inches on each side to exit the vehicle. The photographs taken on the day of the accident and photographs submitted in support of the motion all show that the perimeter area contains numerous tree roots of different sizes, with some but not all of the roots appearing relatively large in dimension. Discussion A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, setting forth sufficient evidence to demonstrate the absence of any material issues of fact. (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980)). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad, supra, 64 NY2d at 853). Summary judgment should be denied where there is any doubt, at least any significant doubt, whether there is a material, triable issue of fact. (Phillips v. Joseph Kantor & Company, 31 N.Y.2d 307, 311 (1972)). Relatedly, the Court notes that summary judgment is inappropriate where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. (Scott v. Long Is. Power Auth., 294 AD2d 348 (2d Dept. 2002); see Baker v. D.J. Stapleton, Inc., 43 AD3d 839 (2d Dept. 2007)). The Court’s function on a summary judgment motion is “to determine whether material factual issues exist, not to resolve such issues.” (Ruiz v. Griffin, 71 AD3d 1112, 1115 (2d Dept. 2010), citing Lopez v. Beltre, 59 AD3d 683, 685 (2d Dept. 2009); see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957); Miele v. American Tobacco Co., 2 AD3d 799, 803 (2d Dept. 2003)(issue finding, not issue determination)). However, where there is no issue of genuine fact to be resolved at a trial, courts should not be reluctant to decide the matter summarily. (Andre v. Pomeroy, 35 NY 2d 361 (1974)). The Court finds that there are questions of material fact that preclude summary judgment. In particular, whether the roots were an open and obvious defect, a natural feature of the landscape that Plaintiff should have reasonably anticipated, and/or whether it was foreseeable that parking patrons would utilize the perimeter area, all will require findings by a trier of fact. The following principles apply to this motion. A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property. (Dottavio v. Aspen Knolls Estates. Home Owners Ass’n, 147 AD3d 910, 910–11 (2d Dept. 2017) (internal quotation marks omitted)). A landowner has no duty to protect or warn against an open and obvious condition or one that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it. Ibid. While it is entirely possible that a jury may find that these tree roots were an open and obvious defect, and this issue presents somewhat of a close call, the Court finds that this issue requires fact finding by a jury and cannot be decided as a matter of law. Typically, this is an issue for the jury, and this case is not so clear that an exception to this principle is warranted. Whether a defect is open and obvious is fact specific and requires consideration of 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. (Shah v. Mercy Med. Ctr., 71 AD3d 1120, 1120 (2d Dept. 2010)). Here, Plaintiff testified that she did look at the curb and down after exiting the vehicle but did not notice the roots. She testified that she looked at the “street” and the curb, so as to see how she would get passed her parked car. While the roots here do not appear to be obscured, a jury still may consider whether the roots would be obvious to a person in Plaintiff’s position, who had just parked and exited a vehicle. Defendant points to various cases in arguing that the condition was open and obvious, and, relatedly, to cases that stand for the principle that a landowner “will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.” However, in the main, these cases deal with large expanses of landscaped area, where tree roots and other similar conditions may naturally be present, and these cases differ from this case which involves a perimeter area immediately adjacent to a parking spot. (See e.g., Dottavio v. Aspen Knolls Ests. Home Owners Ass’n, 147 AD3d 910, 910–11 (2d Dept. 2017)). The Dottavio case, supra, concerned a common area of a condo complex behind the unit where plaintiff resided, and tree roots of which the plaintiff was aware; Mossberg v. Crow’s Nest Marina of Oceanside, 129 AD3d 683, 684 (2d Dept. 2015), involved a fall from a boat; Ibragimov v. Town of N. Hempstead, 164 AD3d 1426, 1427 (2d Dept. 2018), involved the picnic area of a park, all different from the circumstances in this case. Miano v. Rite Aid Headquarters. Corp., 160 AD3d 713 (2d Dept. 2018), cited by Defendant, however, concerned exposed roots in a landscaped area adjacent to a parking lot. In that case plaintiff “stepped up over a curb and walked through a landscaped area of the grounds adjacent to the parking lot” — although it is not clear he was in an area that directly abutted a parking space when he fell. The opinion notes that plaintiff fell while walking through a “gap” between shrubbery “near” the parking space, and fell on an exposed root just below the surface of the ground mulch. Miano at 713. The Court finds the Miano case sufficiently distinguishable from this case, particularly regarding the location of the tree root, and the manner in which the plaintiff fell. Additionally, an issue apparently not present in Miano is the Plaintiff expert’s allegations in this case that the perimeter area did not comply with code standards in several respects. Most notably, the Plaintiff’s expert opines that the perimeter was required to be mulched, to be planted with dense foliage, and that the plantings in the area be of limited height, all circumstances a jury could reasonably find may have impacted the events in this case. Here, Plaintiff and Defendant each take different positions regarding whether there was enough room in the parking spot on the day of the accident for Plaintiff to walk from the parking spot without using the perimeter area. While Defendant provides expert testimony, the expert’s conclusions cannot, and do not, take into account the precise circumstances encountered by Plaintiff when she parked that day — thus, they do not eliminate the fact issues regarding this circumstance. The scope of a landowners’ duty is sometimes described as being defined by “the foreseeability of the possible harm.” (Tagle v. Jakob, 97 NY2d 165, 168 (2001)). Foreseeability typically presents a question for the jury, and the issue can be resolved by the court only when “a single inference” can be drawn from undisputed facts. (Hendricks v. Lee’s Fam., Inc., 301 AD2d 1013, 1013 (2003)). A jury will have to consider whether it was reasonably foreseeable that patrons utilizing the parking area would walk on the perimeter area while walking to or from their vehicles, which may, for example, include considering whether at times people would park as close or closer to the perimeter area curb than Plaintiff did, and perhaps whether this would depend on how another car was parked adjacent to this spot. Moreover, even if a jury found that the parking spot was large enough for persons to traverse on the paved parking lot surface, it is entirely possible that a jury also could find that it was foreseeable that patrons would also walk on the perimeter area. Regarding the issue of whether Plaintiff could identify the cause of her fall, Defendant’s motion also fails. Although Plaintiff testified at some points that she did not see the tree roots before she fell, she also testified that she did see them after she started walking, but it was too late, as her sneaker caught and she fell. She also testified that she saw the roots right after she fell and concluded that they caused her fall. She also testified that her body just “stopped” and her whole body fell forward onto her face and shoulder, also giving rise to the inference that her foot caught on something and was essentially stopped by something where she walked, an area that was full of tree roots. Thus, she sufficiently identified the cause of her fall. (See Padilla v. CVS Pharmacy, 175 AD3d 584, 586 (2d Dept. 2019)). Plaintiff raises a number of issues, including allegations regarding the defense expert’s credentials. Plaintiff also raises an allegation that she was handicapped, entitled to handicapped parking, and the parking lot provided inadequate handicapped parking, an issue not addressed in her deposition or bill of particulars. Defendant alleges that this allegation should not be permitted as it is a new theory of liability raised in opposition to a motion for summary judgment. In light of the Court’s disposition of the motion, the Court need not reach these issues at this juncture as they are not necessary to decide this motion. Accordingly it is ORDERED that Defendant’s Summary Judgment motion is hereby denied. Dated: August 22 , 2023
