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,
-2- 1183 

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