Malgorzata Bolek-Gawin v. White Plains Kensington, LLC, et al.
Attorneys and Parties
Brief Summary
Premises liability involving weather-related risks at outdoor seating areas and the foreseeability of wind-blown patio umbrella hazards.
The Supreme Court, Bronx County granted defendants' motion for summary judgment and dismissed the complaint, finding the accident unforeseeable and attributable to unpredictable wind.
The order granting summary judgment to defendants and dismissing the complaint.
Plaintiff raised a triable issue of fact on foreseeability through the former porter’s testimony that defendants had a practice of removing patio umbrellas on windy days because wind could blow an umbrella up and cause an accident, indicating defendants anticipated the risk.
Background
Plaintiff was seated at a table on an outdoor, elevated terrace at defendants' property. An open patio umbrella was placed in the table. Plaintiff heard a sound like a key turning, then a gust of wind lifted the umbrella from the table and it struck her head. Plaintiff testified the weather was pleasant with occasional gusts. Defendants’ executive director testified no such accident had occurred before, while a former porter testified defendants removed umbrellas on windy days because wind could blow them up and cause accidents.
Lower Court Decision
The Supreme Court, Bronx County granted summary judgment to defendants, concluding they were not responsible for the 'unpredictable vagaries of the weather' and that the incident, caused by a sudden blast of wind and lacking prior similar accidents, was not foreseeable.
Appellate Division Reversal
The Appellate Division unanimously reversed, denied defendants' motion for summary judgment, and held that triable issues of fact exist regarding foreseeability based on evidence of defendants’ practice of removing umbrellas on windy days to prevent them from blowing up and causing injuries.
Legal Significance
Evidence of a defendant’s own safety practices acknowledging a wind-related hazard can create a triable issue on foreseeability in premises liability cases, defeating summary judgment even where weather was generally pleasant and there were no prior similar incidents.
Where a property owner’s practices show recognition of a wind hazard (e.g., removing patio umbrellas on windy days), summary judgment on unforeseeability is improper; a jury must decide negligence and foreseeability.