In DiGeorgio v. Morotta , Marilyn DiGeorgio filed suit to recover damages for personal injuries she sustained while on Michael Morotta's property. She was injured when she tripped and fell on a walkway -- that ran between the driveway and the front door -- which was slightly higher than the surrounding grass.
Unmoved by DiGeorgio's plight, the Kings County Supreme Court granted Morotta's motion to dismiss the case. Dissatisfied with that outcome, DiGeorgio took the next step up and appealed to the Appellate Division, Second Department.
The AD2 determined that the purported height differential "was readily observable by the reasonable use of [DiGeorgio's] senses, and was not inherently dangerous." Although the incident occurred in the evening, the evidence reflected that an exterior light had been activated and "there [was] no evidence that the injured plaintiff misstepped as the result of inadequate illumination."
Faced with those facts, the AD2 affirmed the dismissal.
Maybe DiGeorgio might want to step it up a notch?
To download a copy of the Appellate Division's decision, please use this link: DiGeorgio v. Morotta