Plaintiffs appeal from an order of the Supreme Court, Bronx County (Stanley Green, J.), entered on or about June 9, 2008, which, to the extent appealed from as limited by the briefs, granted respondents' motion for summary judgment dismissing the complaint as against them.
The opinion of the court was delivered by: Richter, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Luis A. Gonzalez, P.J., Angela M. Mazzarelli, John W. Sweeny Dianne T. Renwick, Rosalyn H. Richter, JJ.
Plaintiffs Edith Lee and her 14-month-old daughter Keira Boderick were injured when, while attending a barbeque in the common area of a building owned and managed by the respective defendants-respondents, a party guest emptied hot cooking oil from a deep-fat turkey fryer into a nearby storm drain while another person poured water from a garden hose on the grate of the drain. The oil's contact with water caused a reaction resulting in fire and a steam cloud. Lee was burned on the back of her legs and Boderick suffered burns on her face, hands, legs and arms. The infant, who was hospitalized for over two months and underwent several skin graft surgeries, has numerous permanent scars on her body, hearing loss, speech impairment and developmental deficits. The court below granted respondents' motion for summary judgment and dismissed the complaint as against them, finding, as a matter of law, that their actions were not the proximate cause of plaintiffs' injuries. We now reverse.
The evidence before the motion court revealed that on July 4, 2003, defendant Linda Lanier and her husband Hosea Swinson hosted the barbecue at the building, a 16-story multiple dwelling in the Bronx*fn1. Prior to the party, Elron Williams, the building's superintendent, gave Swinson permission to hold the party in a partially enclosed gated alcove on the building's ground floor. On the morning of the party, Williams unlocked the gate to the alcove area and Swinson set up the cooking equipment, including two charcoal grills and a deep-fat turkey fryer*fn2. Swinson specifically told Williams that the fryer would be used at the barbecue, which was attended by approximately 150 people.
The fryer consisted of a two-foot-high metal cooking pot that sat on a burner and tripod standing approximately eight inches off the ground. A 20-pound round propane tank, approximately two feet high, was attached to the fryer by a hose and provided fuel to heat the pot. To cook in the deep fryer, a large quantity of cooking oil must be heated in the pot to a very high temperature. The record indicates that in this case, eight gallons of oil were heated to a boil, indicating that the oil was at least 425 to 450 degrees Fahrenheit.
Despite the fact that a turkey fryer was being used, a building employee, identified by Swinson as superintendent Williams, provided Elder Sanders, a guest at the party who tended the fryer, with a garden hose. Williams unlocked the door to a nearby storage room, turned on the water and unraveled the hose. Because the end of the hose did not have a nozzle which would allow the party organizers to regulate the water flow, Williams left the water running*fn3. The hose was placed near the cooking area and the water flowed into a nearby storm drain, continuously running during the entire time Sanders was cooking. After frying a number of turkeys, Sanders left the area to get some cigarettes. Sometime thereafter, a party guest named DJ emptied the hot oil into the drain while another attendee poured water from the hose onto the drain. The oil's contact with water from the hose or in the drain caused a fire and steam cloud resulting in plaintiffs' injuries.
A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233, 241 ; Branham v Loews Orpheum Cinemas, Inc., 31 AD3d 319, 322 , affd 8 NY3d 931 ). In order to recover damages for an alleged breach of this duty, the plaintiff must first demonstrate that the defendant created or had actual or constructive notice of the hazardous condition which precipitated the injury (Beck v J.J.A. Holding Corp., 12 AD3d 238, 240 , lv denied 4 NY3d 705 ). The plaintiff must also show that the defendant's negligence was a proximate cause of the injuries. To do so, the negligence must be a substantial cause of the events which produced the injury (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ).
Viewing the evidence in the light most favorable to plaintiffs and drawing all reasonable inferences in their favor (see Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 ), we find that there are triable issues of fact as to whether respondents, by allowing the turkey fryer to be used while providing a continuously running water source in close proximity, breached their duty to maintain the premises in a safe condition, and whether that breach proximately caused plaintiffs' injuries.
Plaintiff submitted an affidavit from a fire prevention and safety expert who stated that cooking using a deep-fat turkey fryer is an activity fraught with danger. The expert explained that the National Fire Protection Association and the American Burn Association discourage consumer use of deep fryers and warn against the dangers of their use. According to the expert, because the deep fryer here included a 20-pound propane tank, it could not be lawfully used on the premises under the then-existing New York City Fire Code (former 3 RCNY 25-01[c]). Additionally, he stated that the use of the turkey fryer with the propane tank also violated section 25-01(f)(2) of the former Fire Code because the fryer had not been approved or listed by a nationally recognized testing laboratory.
The expert explained that the accident here occurred when the hot oil came into contact with the water. As a result, pockets of steam were formed which exploded through the oil spewing superheated water and hot oil through the air. The expert stated that the dangerous combination of hot oil and water is a known hazard encountered with the use of turkey fryers, a warning reiterated by the New York City Fire Department. Indeed, Underwriters Laboratories, a product safety certification organization, refuses to certify turkey fryers and specifically notes that "oil and water don't mix," warning that such a combination could cause a fire or explosion hazard. In light of this evidence, and given the dangers inherent in hot oil mixing with water, a jury could reasonably find that by allowing the fryer to be used while providing a continuously running water source nearby, respondents breached their duty of care by creating or exacerbating a dangerous condition (see Schosek v Amherst Paving, Inc., 11 NY3d 882, 883 ; Figueroa v West 170th Realty, Inc., 56 AD3d 299 ).
In attempting to distinguish Schosek and Figueroa, the dissent apparently believes that this opinion turns on a finding that respondents had a duty to control the actions of third parties on their premises. This misconstrues the primary basis on which summary judgment should be denied. Here, the triable issue of fact is whether respondents' actions created or exacerbated a dangerous condition, the very legal issue addressed in these two cases. Moreover, even the dissent acknowledges the legal principle that ...