TRUCK DRIVER GETS TREE BRANCH STUCK IN HEAD THROUGH OPEN WINDOW; SUMMARY JUDGMENT OF DISMISSAL GRANTED TO DEFENSE

Court: Supreme Court, Suffolk County, New York

Case: Austin v. Town of Southampton

Date: Jan. 13, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

Comment: Accident victim was driving a big truck with an open window and, somehow, got a tree branch stuck into his forehead. Accident victim sues the Town and Homeowners' Association for negligence. The judge in this lower court case does a careful job analyzing issues of "actual notice" and "constructive notice" and of disregarding the findings of plaintiff's expert engineer as "speculative."

At the heart of this decision -- which grants summary judgment to the defendants -- is that nobody can say or show which tree the branch came from. Case over.

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RELATED POSTS:

SUMMARY JUDGMENT DENIED IN LABOR LAW CONSTRUCTION ACCIDENT; PLAINTIFF DIDN'T KNOW WHERE FALLING BUCKET CAME FROM (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Oct 26, 2011)

ACCIDENT VICTIM WHO CAN'T SAY WHY OR WHERE SHE FELL LOSES TO DEFENSE SUMMARY JUDGMENT MOTION (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Jan 23, 2012)

INJURED ACCIDENT VICTIM ACCIDENTALLY FELL ON FLOOR IN MACY'S & CAN'T SAY WHAT CAUSED FALL -- CASE DISMISSED ON SUMMARY JUDGMENT (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Nov 10, 2011)

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THOMAS F. WHELAN, J.

Upon the following papers numbered 1 to 110 read on this motion and cross motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1-22; Notice of Cross Motion and supporting papers 23-38; Answering Affidavits and supporting papers 39-64; 65-92; Replying Affidavits and supporting papers 93-103; 104-107; Other 108-110 (sur‑reply); (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that the motion by defendant Town of Southampton for an order granting summary judgment dismissing the complaint and all cross claims against it is granted; and it is further

ORDERED that the cross motion by defendant Long Tree Pond Homeowners' Association, Inc. for an order granting summary judgment dismissing the complaint against it is granted.

This personal injury action arises out of an incident that occurred on June 24, 2008. On that date, at approximately 7:30 a.m., the injured plaintiff, Robert S. Austin, ("plaintiff") was working for an independent contractor, who was performing road paving services. While operating a Mack truck on Drew Drive in Speonk, New York, and after delivering materials to the site via the Mack truck he was operating, the plaintiff was leaving the work site when a low hanging branch entered the driver's side of the plaintiff's truck cab and struck the plaintiff on the head. The plaintiff, who was rendered unconscious, recollects little about what occurred as his last memory was "leaving the road."

On September 12, 2008, nearly three months after the accident, the plaintiffs served a Notice of Claim upon the defendant Town of Southampton ("Town"). Therein, the plaintiff's injuries were described as sustained "when a low hanging untrimmed tree branch entered the cab of the vehicle he was operating, puncturing his left forehead." The plaintiffs described the incident as occurring "on Drew Drive, south of its intersection with Old Country Road in the area depicted in the photograph annexed hereto." Not disputed are the plaintiff's claims that, shortly after the accident, the trees on Drew Drive were pruned and/or trimmed back. It is undisputed that Drew Drive, which runs north and south in the area of the subject accident, intersects with Old Country Road, which runs east and west.

At his examination before trial, the plaintiff testified to the effect that on the day of the accident, he was a truck driver delivering materials to Drew Drive where road paving work was performed. When he entered Drew Drive, he did not see any trees or limbs hanging over the roadway. As he left the work site, he traveled northbound on Drew Drive at a rate of 15 miles per hour. Since the paving work was in progress on the right side of the road, he drove on the left side, and the driver's side of his truck was "three feet" away from the curb. As he drove, "something hit [him]" on the head, and he became unconscious. He had no recollection as to how the incident occurred. Plaintiff stated that he had never driven on Drew Drive prior to the accident.

At her deposition, non‑party witness Stephanie Albano, who resides on Drew Drive, testified that on the morning of the accident, she observed the plaintiff's truck blocking the roadway. She approached the truck and saw the plaintiff "bleeding with a piece of a branch pierced into his head." Although she stated that, "[i]t just looked like a piece of wooden branch," she did not know the "source of the branch, that is from which tree it came from." She stated that, prior to the accident, she neither observed any trees being trimmed along the roadway of Drew Drive nor noticed any tree branches hanging in the roadway.

At her deposition, Christine Link testified that, on the day of the accident, she was the acting president of the Board of defendant Homeowners' Association. The association consists of the owners of the 104 residences at Long Tree Pond development and it manages the common areas, two tennis courts, and a utility court. Drew Drive is within Long Tree Pond development. Common areas begin at the northwestern corner of Drew Drive where it meets Old Country Road and include the western side of Drew Drive. Ms. Link stated that the common area extends four feet west of the curb along Drew Drive, and that defendant Town owns the land located on the west side of Drew Drive beyond the four feet off the curb. Ms. Link also stated that she is not aware who owns the common area that she described although the Homeowners' Association admittedly entered into a contract with a landscaping contractor who was obligated to maintain the common areas at Long Tree Pond. Although Ms. Link was aware of the 2008 paving project at Long Tree Pond in 2008, she did not know whether trees were trimmed on Drew Drive prior to the start of the paving project. Ms. Link further testified that prior to the accident, the association was not in receipt of any complaints or notices concerning trees overhanging Drew Drive. Ms. Link added that, prior to the accident, the Homeowners' Association did not "engage the services with any individual or entity with respect to tree trimming".

At his deposition, Nathaniel Roach, a foreman for the Highway Department of defendant Town, testified that his job duties include inspecting the roadways in his district for overhanging branches. Continuing, Mr. Roach testified that the Town maintained trees along Drew Drive, to protect against which limbs and branches that might grow over the roadway. Several weeks prior to the accident, he was notified that a micro paving project was going to take place on Drew Drive. Therefore, he inspected Drew Drive to determine what trees needed to be trimmed in anticipation of the paving project. After the trees were trimmed by his crew, he went back to Drew Drive for a re‑inspection, and observed that the trees were trimmed "high enough" along the roadway.

At his deposition, Police Officer, Nelson Gonzalez, testified that he is employed by the Southampton Town Police Department. On the day of the accident, he was dispatched by radio to the scene of the accident. After parking his vehicle on Old Country Road, he walked towards Drew Drive and observed plaintiff Robert Austin laying down on the lawn off the roadway. The plaintiff had a tree branch protruding from his head. Officer Gonzalez stated that he did not observe "any broken branches or pieces of wood or anything" in the area where he observed the plaintiff, and that he was not able to ascertain the precise location of the tree which allegedly was involved in the plaintiff's accident.

The Town of Southampton now moves for summary judgment dismissing the complaint and all cross claims against it on the ground, inter alia, that it neither created the alleged dangerous condition nor had actual or constructive notice thereof. In support, the Town submits, inter alia, the pleadings and the transcripts of the deposition testimony given by plaintiff Robert Austin, Christine Link, a representative of Longtree Pond Homeowners' Association, Inc. ("Homeowners' Association"), non‑party witness Stephanie Albano, and Nathaniel Roach and Police Officer Nelson Gonzalez, representatives of the Town. The Town contends that no liability may attach to it because it neither created the hazardous condition of the tree or branch which allegedly injured the plaintiff nor had actual or constructive notice of such condition prior to the accident. For the reasons stated below, the Town's motion is granted.

It is well settled law that a municipality has a duty to maintain its roadways in a reasonably safe condition and that this duty extends to trees adjacent to the road which could pose a danger to travelers (see Ferrigno v. County of Suffolk, 60 AD3d 726, 875 N.Y.S.2d 202, [2d Dept 2009]; Hilliard v. Town of Greenburgh, 301 A.D.2d 572, 754 N.Y.S.2d 29 [2d Dept 2003]. While prior written notice laws, which are aimed at insulating municipalities from certain liability claims, may not properly extend to defective conditions in such trees (see Walker v. Town of Hempstead, 84 N.Y.2d 360, 618 N.Y.S.2d 758 1994]; Bright v. Village of Great Neck, 54 AD3d 704, 863 N.Y.S.2d 752 [2d Dept 2008]; Hughes v. City of Niagra Falls, 225 A.D.2d 1059, 639 N.Y.S.2d 1996 [4th Dept 1996] ), a municipality will be held liable for dangerous conditions in trees along its roadways only if it had actual or constructive notice of such dangerous condition (see Ferrigno v. County of Suffolk, 60 AD3d 726, supra, Hilliard v. Town of Greenburgh 301 A.D.2d 572, supra; Collado v. Incorporated Town/Village of Freeport, 6 AD3d 378, 774 N.Y.S.2d 190 [2d Dept 2004]).

Actual notice arises whenever the party charged with liability creates the defective condition. It may also arise from complaints delivered to the municipality orally or in writing prior to the accident (see Quiroa v. Ferenczi, 77 AD3d 901, 909 N.Y.S.2d 762 [2d Dept 2010]; Dawson v. Raimon Realty Corp., 303 A.D.2d 708, 758 N.Y.S.2d 100 [2d Dept 2003]), or from notice derived by the observations of municipal employees (see Scott v. Redl, 43 AD3d 1031, 842 N.Y.S.2d 485 [2d Dept 2007]).

To provide constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Ferrigno v. County of Suffolk, 60 AD3d 726, supra; quoting, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 [1986]). "A municipality does not have constructive notice simply because a tree is leaning. A municipality is on notice to make a close inspection only when it is determined that a tree is hanging precariously over the roadway or leaning precariously toward the [roadway]" (Collado v. Incorporated Town/Village of Freeport, 6 AD3d 378, supra [internal citations omitted] ). To put the municipality on constructive notice of a defective condition in a tree or low hanging branch so as to give rise to the duty to discover and correct the condition, evidence must be presented that the dangerous condition of a tree or low hanging branch was present on the roadway for a sufficient length of time prior to the accident to permit the municipal employees to discover and remedy it (see Asnip v. State of New York, 300 A.D.2d 328, 751 N.Y.S.2d 316 [2d Dept 2002]; Quog v. Town of Brookhaven, 273 AD.2d 287, 708 N.Y.S.2d 715 [2d Dept 2000]).

Here, the evidence in the record reflects that several weeks prior to the accident, the Town trimmed trees on Drew Drive in order to prepare the roadway for the paving project. Thereafter, Nathaniel Roach, a Town employee, inspected the roadway and observed that the trees were properly trimmed along the roadway. At her deposition, Long Tree Pond resident, Stephanie Albano, testified that, prior to the accident, she did not notice any tree branches hanging in the roadway. Christine Link, the Association's President, also testified that, prior to the accident, there were no complaints or notices concerning trees or limbs overhanging Drew Drive. The Town has thus made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it neither created the alleged dangerous condition nor had actual or constructive notice thereof. The burden now shifts to plaintiffs to show, by admissible evidentiary proof, the existence of a triable issue of fact (see Marietta v. Scelzo, 29 AD3d 539, 815 N.Y.S.2d 137 [2d Dept 2006]).

In their opposing papers, the plaintiffs contend that several issues of fact exist as to whether the Town had actual or constructive notice of the alleged condition of the low hanging trees and failed to reasonably undertake its duty to trim the trees along the road and to make reasonable re‑inspection of the area of the accident following its tree trimming activities. In support thereof, the plaintiffs have submitted, inter alia, the affidavit of non‑party witness Patrick Austin and the report of their retained engineering expert, Nicholas Bellizzi.

In his affidavit in opposition, Patrick Austin, the brother of plaintiff Robert Austin, stated that he was employed as a machinery operator by Thomas H. Gannon & Sons, Inc. On the day of the accident and was operating a street sweeper on Drew Drive to prepare the roadway for paving. After he was informed by radio transmission that something had happened to the plaintiff, he went to the scene of the accident. Approximately 100 feet south of Old Country Road, he found the plaintiff's truck on Drew Drive and observed the plaintiff sitting in the driver's seat with a tree branch sticking out of his left forehead. Patrick Austin stated that, "[w]hile at the scene, [he] spoke with several coworkers and a female good samaritan and learned that no one observed the incident or knew which tree was involved." He walked south of the location where the truck had come to rest and "could not locate the source of the branch."

The report of the plaintiff's retained engineering expert, Nicholas Bellizzi includes statements as to his qualifications as a transportation engineer and a description of his review of the deposition testimony given by Nathaniel Roach and Stephanie Albano, the 50(h) hearing transcript of plaintiff, and photos of the accident location. In such report, Mr. Bellizzi opines that the Town performed inadequate and incomplete tree trimming on Drew Drive, and that the Town's failure to safely trim the tree branches allowed a dangerous condition to exist, causing the plaintiff's accident.

The court finds, however, that the plaintiffs' submissions were insufficient to raise one or more genuine questions of fact necessary to preclude the granting of summary judgment in favor of the Town. There is no evidence that the Town created any low hanging branches or defects in any trees lining Drew Drive by negligent tree trimming activities. The opinions set forth in Mr. Bellizzi's report including those that assert that the Town's failure to safely trim the tree branches caused plaintiff's accident are entirely speculative and thus do not constitute due proof from which negligence on the part of the Town due improper tree trimming might be reasonably be inferred (see Fotiatis v. Cambridge Hall Tenants Corp., 70 AD3d 631, 895 N.Y.S.2d 456 [2d Dept 2011]; Bacic v. New York City Tr. Auth., 64 AD3d 526, 883 N.Y.S.2d 258 [2d Dept 2009]; Mirjah v. New York City Tr. Auth., 48 AD3d 764, 853 N.Y.S.2d 148 [2d Dept 2009]).

The record is also devoid of any evidence tending to establish that the Town had actual notice of any low hanging branch with which the plaintiff came into contact while performing his duties as a road paver. While there are no allegations that the Town received from homeowners or others, prior notice of any defective condition in the trees along Drew Drive, the plaintiffs claim that the Town knew or should have known of such condition as a result of the inspections performed by town employees. However, the record includes ample evidence that the Town inspected the trees prior to the start of the paving project, trimmed the trees and conducted a follow up inspection prior to the start of the paving project which revealed no low hanging branches. The Town thus established, prima facie, that it was without actual notice of any low hanging branches prior to the start of the subject paving project (see Raghu v. New York City Hous. Auth., 72 AD3d 480, 482, 897 N.Y.S.2d 436 [2d Dept 2010]). None of the plaintiffs' submissions rebutted this prima facie showing by proof in admissible form sufficient to raise a genuine question of fact (see Zach v. 482 Operating Corp., 51 AD3d 786, 858 N.Y.S.2d 268 [2d Dept 2008]).

The Town further established, prima facie that it is not chargeable with constructive notice of any tree defect or low hanging branch. In opposition, the plaintiffs failed to adduce evidence regarding the apparentness or visibility of any offending tree branch or limb or the length of time any hanging branch or tree limb, broke, fell or otherwise became lowered that it became an endangerment to those on the roadway (see generally Insook Lee v. Port Chester Costco Wholesale, 82 AD3d 842, 918 N.Y.S.2d 549 [2d Dept 2011]). In this regard, its is notable that Patrick Austin stated in his affidavit that when he arrived at the scene of the accident, he could not locate which tree or branch was involved. Since no questions of fact were raised regarding notice, the Town's motion for summary judgment dismissing the complaint and all cross‑claims asserted against it is thus granted.

The court next considers the defendant Homeowners' Association cross motion for summary judgment dismissing the claims interposed herein against it. This application is predicated upon claims that no liability can attach to the Association because it had no duty to maintain the trees along Drew Drive or to keep the roadway safe from conditions caused by such trees. Alternatively, the Homeowners' Association contends that dismissal of the claims against it is warranted because it neither created the alleged dangerous condition nor had actual or constructive notice thereof. In support of these contentions, the Homeowners' Association relies upon the evidence submitted by the motion by the Town and the deposition testimony of the Association's president who testified to, among other things, that prior to the accident the Homeowners' Association was not engaged in tree trimming and no complaints concerning trees overhanging Drew Drive were delivered to the Association.

While there is some dispute as to the ownership of the trees lining the Drew Drive, including the offending tree, which has not been positively identified, it is assumed for purposes of this motion that ownership and/or control of such trees rested with the defendant Homeowners' Association due to the location of such trees in or about a common area within the confines of the Long Tree Pond development. Not disputed is that under the governing documents of the Homeowners' Association, it was obligated to maintain this common areas vis a vis its members. Nevertheless, the court finds, for the reasons stated below, that the Homeowners' Association is entitled to the summary judgment demanded by it on its cross motion for such relief.

It is well established that a landowner is not under a common law duty to control vegetation on its property for the benefit of users of a public highway (see Clementoni Consolidated Rail Corp., 8 NY3d 963, 836 N.Y.S.2d 507 [2007]; Meloe v. Gardner, 40 AD3d 1055, 840 N.Y.S.2d 72 [2d Dept 2007]; Kolkmeyer v. Westhampton Taxi & Limo Serv., 261 A.D.2d 587, 690 NYS24 675 [2d Dept 1999]; Ingenito v. Robert M. Rosen, P.C., 187 A.D.2d 487, 589 N.Y.S.2d 574 [2d Dept 1992]). It is only in those cases wherein the landowner is under a statutory or regulatory obligation to prevent vegetation from visually obstructing the roadway that liability may attach to the landowner by reason of his or her non‑compliance with the regulatory provision imposing that obligation (see Lubitz v. Village of Scarsdale, 31 AD3d 618, 819 N.Y.S.2d 92 [2d Dept 2006]; Deutsch v. Davis, 298 A.D.2d 487, 750 N.Y.S.2d 84 [2d Dept 2002]; Perlak v. Sollin, 291 A.D.2d 540, 737 N.Y.S.2d 660 [2d Dept 2002]).

Here, the plaintiffs failed to demonstrate that a specific regulatory provision of an applicable statute, ordinance or local law imposes upon the defendant Homeowners' Association imposes upon it a duty to prevent vegetation from obstructing the roadway. None of the provisions of the Highway Law or the Town Code relied upon by the plaintiffs have been shown to be controlling in this regard (see Highway Law Sec. 319; Town of Southampton Code Secs. 261-1(2), (3); 287-16). The court thus rejects the plaintiffs' claim that questions of fact regarding liability on the part of the defendant Homeowners' Association exist due to the imposition of duties upon it under the above cited statutory provisions.

Likewise rejected are the plaintiffs' claims that the Declarations, Covenants and other documents that govern the rights, obligations and other relations between the Homeowners' Association and its members imposed a duty owing to the injured plaintiff. Breaches of contractual obligations owing between parties to a private contract do not, except in certain limited circumstances not present here, give rise to tort liability for injuries sustained by non‑contracting parties (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120 [2002]]; Mougiannis v. Dermody, 87 AD3d 993, 929 N.Y.S.2d 323 [2 Dept 2011]; Betancourt v. Trump Empire State Partners, 27 AD3d 604, 812 N.Y.S.2d 598 [2d Dept 2006]).

Moreover, the Homeowners' Association established, prima facie through the deposition testimony of its acting President and other evidence, that the Association neither created the condition about which the plaintiff complains nor did it have actual or constructive notice of its existence prior to the plaintiff's accident. The law is well settled that no liability attaches to a landowner whose tree or overhanging limbs fall outside of his premises causing injury to another unless there exists actual or constructive knowledge of the defective condition of the tree (see Ivancic v. Olmstead, 66 N.Y.2d 349, 497 N.Y.S.2d 326 [1985]). Assuming that the plaintiffs' complaint, as amplified by their bill of particulars, encompasses claims that a low or overhanging branch of a tree situated in the common area next to Drew Drive fell or broke over land owned and/or possessed by the Town and struck the injured plaintiff in the head, the record is devoid of any evidence of the Homeowners' Association's possession of actual notice of any defect in any of its tress prior to the plaintiff's accident. Nor is there any evidence of constructive notice on the part of the Homeowners' Association. The record is devoid of evidence of the existence of a dangerously low hanging branch or tree limb or the length of time such a condition was visible and apparent. In this regard, it is again noted that Patrick Austin, the brother of the injured plaintiff who arrived at the scene shortly after the plaintiff sustained his injury, averred in his opposing affidavit that he could not locate or identify any tree or branch that was involved in the accident. The Homeowners' Association thus made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it neither created the alleged dangerous condition nor had actual or constructive notice thereof, in response to which, the plaintiffs raised no genuine issues of fact (see Ivancic v. Olmstead, 66 N.Y.2d 349, 497 N.Y.S.2d 326 [1985]; Lillis v.. Wessolock, 50 AD3d 969, 856 N.Y.S.2d 487 [2d Dept 2008]). The cross‑motion is thus granted.

In view of the foregoing, the motion and cross motion by the defendants for summary judgment are granted. The complaint and all cross‑claims asserted against them are dismissed pursuant to CPRL 3212.

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