Morell v. Peekskill Ranch, Inc.

104 A.D.2d 492, 479 N.Y.S.2d 241, 1984 N.Y. App. Div. LEXIS 19937

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 27, 1984
• Status: Published

Opinions

— In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered November 10, 1981, dismissing the complaint upon motion of the defendant made during trial at the close of the plaintiffs’ case.

Judgment affirmed, with costs.

On August 19, 1977, plaintiffs, Diana and Bruce Morell, and their two children, registered as guests at a “dude ranch” located in a “rustic setting”. The next morning Mrs. Morell headed toward the tennis courts, walking down a “worn dirt path [with] grass on either side”. There were no warning signs or markers of any kind posted.

After Mrs. Morell had passed some “[f]lat rocks” and had traveled 40 to 50 feet, she came upon a curve in the path with a three-foot high boulder that came up to her hips and allegedly blocked her view. She proceeded to go around the boulder, walking three or four feet, and then, while she was looking at the children on the tennis court, she “slipped” and fell. Nothing had interfered with her vision when she traversed the three or four feet before slipping. Later, Mr. Morell found his wife on the ground by a “bunch of boulders * * * at the foot of a cliff”.

Trial Term granted defense counsel’s motion to dismiss the complaint for failure to establish a prima facie case, finding that there was no proof that there was a dangerous condition. We affirm.

To be sure, a landowner must act as a reasonable person in maintaining property in a reasonably safe condition and, when necessary, give notice of unsafe conditions (see, e.g., Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233). This does not, however, make the landowner an insurer, “liable for every injury no matter the nature of the hazard or how long it has been in place. There must be some proof that the potential danger reasonably could have been neutralized and that its existence was or should have been discovered by the [landowner] (see Oppel v City of Long Beach, 262 App Div 777, affd 288 NY 633)” (Preston v State of New York, supra, p 999; see, also, Quinlan v Cecchini, 41 NY2d 686, 689).

The dirt path in issue is not inherently dangerous. It traversed a rocky area, apparently in keeping with the ranch’s rustic environment (see Barnaby v Rice, 75 AD2d 179, affd 53 NY2d 720). Moreover, in the absence of any evidence of a hidden dangerous condition, there is no basis for finding that the defendant owed a duty to post warning signs or to block off the path entirely (see Herman v State of New York, 94 AD2d 161, 162-163; Pope v State of New York, 198 Misc 31, affd 277 App Div 1157; cf. Preston v State of New York, supra). Mrs. Morell injured herself because she failed to watch where she was walking, not as the result of any negligence of the defendant (see Barnaby v Rice, supra). “She was bound to see what by the proper use of her senses she might have seen” (Weigand v United Traction Co., 221 NY 39, 42; see, also, Vella v Seacoast Towers “A” 32 AD2d 813, 814). As in Herman v State of New York (supra, pp 163-164), “there is no evidence in this record that the employment of signs would have prevented the accident”.

There being no question as to the defendant’s negligence, the case was properly dismissed at the close of the plaintiffs’ case (Quinlan v Cecchini, 41 NY2d 686, 689, supra; Basso v Miller, 40 NY2d 233, 241, supra; Barnaby v Rice, 75 AD2d 179, affd 53 NY2d 720, supra). Titone, J. P., Thompson and O’Connor, JJ., concur.