The First Department, over a two-justice dissent, determined defendant synagogue’s motion for summary judgment was properly denied. Plaintiff was a participant in a study-abroad program run by defendant in Israel. She injured her knee and alleged she was prescribed physical therapy but defendant refused to provide it (delaying and compromising recovery). The First Department held defendant owed a duty of care to plaintiff because it had agreed to provide medical care and was in the best position to protect plaintiff from injury. The court noted that defendant’s attempt to place the burden on plaintiff to demonstrate a causal link between her injury and the failure to provide physical therapy must fail in the context of a defense summary judgment motion. The burden never shifted to plaintiff on that issue because the defendant did not demonstrate, through an expert affidavit, the absence of causation. [Yet another example of the need for a defendant to present affirmative proof on every relevant issue when seeking summary judgment. Without affirmative proof on a necessary issue, the burden never shifts to plaintiff.]:
The existence of a duty depends on the circumstances, and the issue is one of law for the court; “the court is to apply a broad range of societal and policy factors” … .
In determining the threshold question of whether a defendant owes a plaintiff a duty of care, courts must balance relevant factors, “including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” … . The parties’ relationship may create a duty where it “places the defendant in the best position to protect against the risk of harm  and  the specter of limitless liability is not present” … . Thus, where a defendant exercises a sufficient degree of control over an event, a duty of care to plaintiff may arise … .
Here, the parties’ relationship created a duty to provide plaintiff with the necessary medical care because not only did defendant agree to do so, it was in the “best position to protect against the risk of harm” and “the specter of limitless liability [was] not present” … . The program was not an ordinary college or study-abroad program. Indeed, the second “semester” did not take place in a university environment. Rather, it took place in Yerucham, a small town in the Negev desert, involved volunteering, and was supervised by counselors who did “[p]retty much everything,” including responding to medical issues. Under the circumstances, defendant exercised a sufficient degree of control over the program to create a duty of care to plaintiff … . Katz v United Synagogue of Conservative Judaism, 2016 NY Slip Op 00094, 1st Dept 1-12-16
NEGLIGENCE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/DUTY OF CARE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/EVIDENCE (DEFENDANT DID NOT PROVIDE AFFIRMATIVE EVIDENCE OF ABSENCE OF CAUSATION IN ITS SUMMARY JUDGMENT MOTION, BURDEN ON THAT ISSUE NEVER SHIFTED TO PLAINTIFF)/SUMMARY JUDGMENT (DEFENSE MOTION FOR SUMMARY JUDGMENT MUST SUBMIT AFFIRMATIVE PROOF ON ISSUE OF CAUSATION OF INJURY, ABSENT AFFIRMATIVE PROOF BURDEN NEVER SHIFTED TO PLAINTIFF ON THAT ISSUE)