NEGLIGENCE

 

Plaintiff's Inability to Identify the Precise Sidewalk Defect Which Caused Her Fall (In a Photograph) Did Not Warrant Summary Judgment to the Defendant---Plaintiff Testified She Tripped on a Bump in the Sidewalk

 

The First Department determined that plaintiff's inability to identify the precise sidewalk defect over which she tripped did not warrant granting summary judgment to the defendant. Plaintiff testified her foot struck a bump in the sidewalk but she was unable to identify the defect in a photograph of the sidewalk. Under the circumstances the plaintiff was not required to identify the particular defect which caused her fall in order to avoid summary judgment. She was able to demonstrate a "nexus" between a defect and her fall:

 

At her deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff's inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible ... . Under the circumstances, plaintiff's testimony was sufficient to demonstrate a causal "nexus" between a defect in the sidewalk in front of [defendant's] property and her fall, and she was not required to prove "precisely which particular" defect in the sidewalk caused her to fall in order to avoid summary judgment ... . Kovach v PJA, LLC, 2015 NY Slip Op 03931, 1st Dept 5-7-15

 

 

NEGLIGENCE

 

Bar Patron Was Beaten to Death by Other Patrons---Defendants (Bar and Premises Owners) Were Unable to Demonstrate the Attack Was Not Foreseeable and their Negligence Was Not the Proximate Cause of the Attack---Defendants' Summary Judgment Motion Properly Denied 

 

The Second Department determined there were questions of fact whether a bar patron could have been protected from harm.  "The plaintiff's decedent was assaulted by other patrons of a lounge on premises leased by the defendant Bartini's Pierre, Inc., also known as Station Bar Corp., doing business as Bartini's Lounge, and owned by the defendant Reiner & Keiser Associates (hereinafter together the appellants)." The appellants were not able to demonstrate prima facie that the attack was not foreseeable, that the attack could not have been prevented, that the appellants' negligence was not the proximate cause of the attack, or that reasonable security measures to guard against criminal acts by third persons were taken:

 

  "Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" ... .

 

Here, the appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them. In support of their motion, the appellants submitted the deposition testimony of a witness to the incident, who testified that, shortly before the incident, he noticed the decedent being restrained by a security guard, but was not aware of the events which led the security guard to restrain the decedent. The witness testified that the security guard then proceeded to escort the decedent out of the premises, during the course of which the decedent was severely beaten by other patrons, resulting in his death. This evidence failed to demonstrate, prima facie, that the attack upon the decedent was not foreseeable, that the appellants lacked the opportunity to prevent the attack, or that any negligence on the appellants' part was not a proximate cause of the incident ... . The appellants also failed to demonstrate, prima facie, that they took reasonable security measures against foreseeable criminal acts of third parties ... . Walfall v Bartini's Pierre, Inc., 2015 NY Slip Op 03830, 2nd Dept 5-6-15

 

 

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NEGLIGENCE

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Doctor Who Allegedly Wrongfully Prescribed Narcotics for a Drug Addict Who Shot Plaintiff's Decedent in an Attempt to Steal Narcotics from a Pharmacy Did Not Owe a Duty of Care to Plaintiff's Decedent

 

The Second Department determined the duty to protect persons from the criminal acts of others did not extend to plaintiff's decedent.  Plaintiff sued a doctor who operated a pain management clinic, alleging that the doctor operated a "pill mill" and wrongfully provided drugs to a drug addict,  The drug addict shot plaintiff's decedent during a robbery of a drug store in an attempt to steal narcotics. The court noted that there are situations in which a defendant exercises sufficient control to prevent harm to others. Here, however, in the absence of such control, the doctor owed no duty of care to plaintiff's decedent:

 

"The question of whether a defendant owes a duty of care to another person is a question of law for the courts" ... .

 

Generally, "[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm" ... . Further, "there is no duty to control the conduct of third persons to prevent them from causing injury to others,' even where, as a practical matter, the defendant could have exercised such control" ... .

 

... Courts have imposed a duty of care "where there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons" that courts have identified a duty to exercise such control ... . Thus, courts have imposed a duty to control the conduct of others "where there is a special relationship: a relationship between [the] defendant and [the] third person whose actions expose [the] plaintiff to harm such as would require [the] defendant to protect the plaintiff from the conduct of others" ... .

 

The Supreme Court erred in denying [the doctor's] motion to dismiss the complaint insofar as asserted against him for failure to state a cause of action. [The doctor] did not owe a duty to the decedent or to the general public because no special circumstances existed. The decedent was a stranger to [the shooter] and a member of the general public, not a member of "a determinate and identified class" ... . Malone v County of Suffolk, 2015 NY Slip Op 03811, 2nd Dept 5-6-15

 

NEGLIGENCE

 

Transit Authority Not Liable Under the Emergency Doctrine As a Matter of Law

 

The Second Department determined the defendant New York City Transit Authority was not liable to the plaintiff as a matter of law under the emergency doctrine.  Plaintiff was a passenger in the Transit Authority's vehicle when defendant Franco allegedly backed out of a driveway at a high rate of speed (to get over a snow bank) into the path of the Transit Authority's vehicle. "The common-law emergency doctrine 'recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency'  ... . 'Although the existence of an emergency and the reasonableness of the response to it generally present questions of fact, those issues may in appropriate circumstances be determined as a matter of law''...". Majid v New York City Tr. Auth., 2015 NY Slip Op 03809, 2nd Dept 5-6-15

 

 

NEGLIGENCE

 

Question of Fact Whether It Was Foreseeable Children Would "Ride" an Unsecured Gate Resulting in Injury

 

The Fourth Department determined there was a question of fact whether it was foreseeable that children would swing on an unsecured gate to a cemetery (open to the public). The seven-year-old plaintiff was injured while "riding the gate." Although there is nothing inherently dangerous about an unsecured gate, knowledge that children played in the cemetery raised a question of fact whether injury to a child was foreseeable:

 

"It is beyond dispute that landowners . . . have a duty to maintain their properties in [a] reasonably safe condition" ... . "Consistent with that duty, the degree of care to be exercised must take into account the known propensity' of children to roam and climb and play' " ... . Indeed, "New York State courts have recognized the special propensities of children and the prevailing social policy of protecting them from harm' . . . and have not deprived them of a right to compensation for injuries caused by the negligence of third parties . . . solely on account of their misuse of an instrument found on the defendant's premises" ... . "What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact" ... .

 

* * * "[A]t least once it is known that children commonly play around . . . an artificial structure [such as the gate], their well-known propensities . . . to climb about and play' . . . create a duty of care on the part of a landowner to prevent foreseeable risks of harm that might arise out of those activities" ... .

 

Given that, "as a matter of law, [ riding' a gate] is not such an extraordinary' form of play as to break the causal connection between the dangerous condition . . . and plaintiff's injuries," we conclude that there is a triable issue of fact whether "[i]t was a natural and foreseeable consequence of defendant's failure to effectively secure the [gate] against access that young children would play [on it]," thereby resulting in injury ... . Charles v Village of Mohawk, 2015 NY Slip Op 03975, 4th Dept 5-8-15

 

 

NEGLIGENCE/LANDLORD-TENANT

 

Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether He Had Constructive Notice of the Presence of Lead Paint

 

In the context of a summary judgment motion, the Fourth Department determined the landlord did not meet his burden of demonstrating he did not have constructive notice of the presence of lead paint:

 

Where, as here, there is no evidence that the landlord had actual notice of the existence of a hazardous lead paint condition, plaintiff may establish that defendant had constructive notice of such condition by demonstrating that the landlord "(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" (Chapman v Silber, 97 NY2d 9, 15). Defendant conceded that he was aware that a young child lived in the subject premises, and we conclude that he failed to meet his burden on the four remaining Chapman factors... . Wood v Giordano, 2015 NY Slip Op 03984, 4th Dept 5-8-15

 

 

NEGLIGENCE/CIVIL PROCEDURE

 

Jury's Finding that the Defendant Was Negligent but that the Negligence Was Not the Proximate Cause of the Accident Was Against the Weight of the Evidence---Motion to Set Aside the Verdict Should Have Been Granted---New Trial Ordered

 

The Third Department determined Supreme Court should have granted plaintiff's motion to set aside the verdict.  Plaintiff was injured when her bicycle struck a recessed manhole cover.  Defendant construction company had placed barrels in the roadway to create a pedestrian walkway.  The placement of barrels served to direct users of the walkway toward the recessed manhole. The jury found the placement of the barrels negligent but further found that negligence was not the proximate cause of the accident.  The verdict was against the weight of the evidence because the only reason the placement of the barrels would be deemed negligent is that the barrels diverted traffic toward the recessed manhole:

 

"A jury's finding that a party was at fault but that [such] fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" ... . Further, we view the evidence in the light most favorable to the nonmoving party, defendant, and afford deference to the jury's credibility determinations ... . A "plaintiff's own conduct may be a superceding cause which severs the causal connection between [the] defendant's negligence and the injury [when] a plaintiff's negligence [is] more than mere contributory negligence, which would be relevant in apportioning culpable conduct" ... .

 

* * * The only theory presented at trial as to why such placement was negligent, as indicated in the jury instructions, was that it diverted traffic toward a dangerous recessed manhole cover. Given that the uncontested evidence was that plaintiff was diverted in just such a manner, no fair interpretation of the evidence "would support the conclusion that [plaintiff's] conduct was so extraordinary or unforeseeable as to make it unreasonable to hold defendant[] responsible for the resulting damages" ... . Therefore, Supreme Court erred in denying plaintiff's motion to set aside the verdict. Durrans v Harrison & Burrowes Bridge Constructors, Inc., 2015 NY Slip Op 03896, 3rd Dept 5-7-15

 

 

NEGLIGENCE/MUNICIPAL LAW

 

Question of Fact Whether County Had Constructive Notice of Pothole Which Injured Bicyclist

 

The Second Department determined a question of fact had been raised about whether the county had constructive notice of a pothole. Plaintiff was injured when his bicycle struck the pothole. Although the county did not have written notice of the defect, the Highway Law (section 139[2]) provides that a county may be liable for a defective highway condition if the county has constructive notice of it. Plaintiff's expert opined the pothole had existed for four months prior to the accident:

 

Notwithstanding the existence of a prior written notice statute, a County may be liable for an accident caused by a defective highway condition where the County has constructive notice of the condition (see Highway Law § 139[2]...). Here, the County submitted the deposition testimony of a County employee who stated that he inspected the roadway where the fall is alleged to have occurred every Monday through Friday until the week before the accident, and did not observe any potholes. This was sufficient to establish, prima facie, that the County lacked constructive notice of the alleged defect ... . However, in opposition to the County's motion, the plaintiff submitted the affidavit of an expert who inspected the subject roadway and opined that the defect was in existence for at least four months prior to the accident. This affidavit was sufficient to raise a triable issue of fact as to whether the County had constructive notice of the alleged defect by virtue of the fact that it existed for so long a period that it should have been discovered and remedied in the exercise of reasonable care and diligence ... . Rauschenbach v County of Nassau, 2015 NY Slip Op 03818, 2nd Dept 5-6-15

 

 

NEGLIGENCE/EDUCATION-SCHOOL LAW/MUNICIPAL LAW/CIVIL PROCEDURE

 

Supervision, Even If Inadequate, Could Not Have Prevented Injury Caused by the Sudden, Unanticipated Act of Another Student---Summary Judgment to Defendant Properly Granted

 

The First Department determined that plaintiff's injury on the playground could not have been prevented by supervision. Therefore the alleged inadequate supervision was not a proximate cause of the injury. Plaintiff was injured when he hit a pole while running away from another student. The court noted that the board of education, not the city, is the proper party.  The city is a separate legal entity not responsible for the torts of the board:

 

As to the claim against the Board, it is well settled that

 

"[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another. A teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances ... .

 

"Even if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained" ... . " Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'" ... . Thus, "[a]n injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ... .

 

Here, even assuming that plaintiff could demonstrate that the supervision during the gym class was inadequate, the Board established a prima facie case for summary judgment by demonstrating that the accident was the result of a series of sudden and spontaneous acts and that any lack of supervision was not the proximate cause of the infant plaintiff's injury ... . Jorge C. v City of New York, 2015 NY Slip Op 03772, 1st Dept 5-5-15

 

 

NEGLIGENCE

 

Res Ipsa Loquitur Doctrine Can Apply to an Elevator Maintenance Company Even Where there Is No Proof the Company Had Actual or Constructive Notice of Elevator Misleveling

 

The First Department, in a full-fledged opinion by Justice Gische, over a two-justice partial dissent, determined that an elevator maintenance company could be liable for a fall allegedly caused by misleveling of an elevator under the doctrine of res ipsa loquitur, even though there was no evidence the elevator maintenance company had actual or constructive notice of the problem. The plaintiff's allegations of the misleveling, coupled with the settled principle that elevator misleveling does not occur in the absence of negligence, raised a question of fact under the res ipsa loquitur criteria:

 

Res ipsa loquitur permits a fact finder to infer negligence based upon the sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant's exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff's part ... . If a plaintiff establishes these elements, then the issue of negligence should be given to a jury to decide ... .

 

Res ipsa loquitur does not create a presumption of negligence; rather it is a rule of circumstantial evidence that allows the jury to infer negligence ... . A defendant is free to rebut the inference by presenting different facts or otherwise arguing that the jury should not apply the inference in a particular case ... . Notice of a defect is inferred when the doctrine applies and the plaintiff need not offer evidence of actual or constructive notice in order to proceed ... . Thus, while there is no proof of actual or constructive notice in this case, res ipsa loquitur can still support plaintiff's claim ... . Ezzard v One E. Riv. Place Realty Co., LLC, 2015 NY Slip Op 03791, 1st Dept 5-5-15

 

 

 

NEGLIGENCE/MEDICAL MALPRACTICE

 

There Is No Blanket Prohibition Against Relying on the Doctrine of Res Ipsa Loquitur in a Medical Malpractice Case

 

In affirming the denial of summary judgment to the defendant in a medical malpractice case, the Third Department noted that plaintiff is not precluded from relying on the doctrine of res ipsa loquitur in a medical malpractice action.  Here it is was alleged the improper insertion of an IV damaged a nerve: "While the proof adduced at trial ultimately may be insufficient to establish the required elements of res ipsa loquitur ..., thereby rendering the submission of such a charge to the jury unwarranted ..., there is no blanket prohibition upon invoking this doctrine in the context of a medical malpractice action ... .  Weeks v St. Peter's Hosp., 2015 NY Slip Op 03909, 3rd Dept 5-7-15

 

 

NEGLIGENCE/PRODUCTS LIABILITY

 

Injury While Trying to Pick Up a Fallen 3000 Pound Roll of Paper Was a Foreseeable Consequence of an Alleged Equipment Defect Which Caused the Roll to Fall

 

The Fourth Department determined the summary judgment motion of the defendants---manufacturers and modifiers of a pallet truck---was properly denied.  The complaint alleged the pallet truck and the roll cradle with which the pallet truck was modified were defective, causing a 3000 pound roll of paper to fall off the truck.  Plaintiff was severely injured while trying to lift the fallen roll.  The defendants' arguments that any defects in the pallet truck and roll cradle were not the proximate cause of the injury, and the attempt to pick up the fallen roll was the superseding cause of the injuries, were rejected. The court determined the cause of the injury was within the class of foreseeable hazards associated with a fallen roll and the risk of the intervening act (lifting the fallen roll) was the same risk that renders the actor negligent:

 

"As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions" ... . Where the cause of an accident is "within the class of foreseeable hazards that [a] duty exists to prevent, the [defendant] may be held liable, even though the harm may have been brought about in an unexpected way" ... . We conclude that the hazard that caused plaintiff's injury, i.e., the movement of the roll while it was being placed back in an upright position, was "within the class of foreseeable hazards" associated with a roll falling off the allegedly defective pallet truck ..., and thus a jury "could rationally [find] that . . . there was a causal connection between [defendants' alleged] negligence and plaintiff's injuries" ... . We thus reject the contention of defendants that the falling roll merely "furnished the occasion" for plaintiff's accident.

 

We also reject the contention of defendants that the actions of plaintiff and his coworkers in attempting to upright the roll were a superseding cause of plaintiff's injuries. "An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act is the very same risk which renders the actor negligent" ... . As noted above, the risk of the roll falling while being uprighted is the same risk underlying plaintiffs' allegations of negligence, and we conclude that the actions of plaintiff and his coworkers were not "of such an extraordinary nature" as to relieve defendants of liability ... . Ard v Thompson & Johnson Equip. Co., Inc., 2015 NY Slip Op 03985, 4th Dept 5-8-15

 

 

NEGLIGENCE

 

1/2 to 3/4 Inch Defect in Sidewalk Not Trivial As a Matter of Law

 

In denying defendant's motion for summary judgment on the ground that the 1/2 to 3/4 defect in the sidewalk (which extended across two adjoining slabs) where plaintiff tripped and fell was trivial, the Fourth Department explained the relevant criteria: "[W]hether a dangerous or defective exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ... . "[T]here is no minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" ... . Although "in some instances . . . the trivial nature of the defect may loom larger than another element[,] . . . [a] mechanistic disposition of a case based exclusively on the dimension of the [pavement] defect" is inappropriate ... . Thus, a determination whether a particular defect is actionable requires examination of "the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" ... . Greco v City of Buffalo, 2015 NY Slip Op 03966, 4th Dept 5-8-15