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THE POND INTO WHICH THE 96-YEAR-OLD PLAINTIFF’S DECEDENT APPARENTLY SLID WAS OPEN AND OBVIOUS AND THE FACT THAT THE BANK OF THE POND IS SLIPPERY IS INCIDENTAL TO ITS NATURE AND LOCATION, PLAINTIFF’S EXPERT DID NOT SUPPORT THE ASSERTION THAT THE POND WAS DEFECTIVE AND UNSAFE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined defendant property owners’ motion for summary judgment in this wrongful death case was properly granted. Plaintiff’s decedent was 96 years old and resided in defendants’ senior citizen facility. Plaintiff’s decedent was found  dead in a pond on the property. The medical examiner concluded plaintiff’s decedent may has slipped on the sloping bank of the pond and slid into the water where he died of drowning:

… [A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” … .

Here, defendants met their initial burden on the motion by establishing that the pond, including its sloping bank, was an open and obvious condition inherent or incidental to the nature of the property and that it was known to decedent prior to the accident …. “A slippery condition on a [pond’s bank] is necessarily incidental to its nature and location near a body of water” … . …

… [T]he engineering expert’s affidavit that plaintiff submitted fails to indicate that it was based on any studies, regulations, codes, or statutes, “nor is the expert’s conclusion that the [retention pond] was defective and unsafe . . . supported by foundational facts, such as a deviation from industry standards or statistics showing the frequency of injuries caused by” the lack of safety measures proposed by the expert … . Preston v Castle Pointe, LLC, 2019 NY Slip Op 04617, Fourth Dept 6-7-19

 

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