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NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the defendant New York State Transit Authority (NYSTA) was not entitled to dismissal of the Labor Law 200 and common law negligence claims on collateral estoppel, governmental immunity, or factual grounds. The decision includes good explanations of all the legal principles involved. Claimants lost summary judgment motions in a lawsuit against other defendants in state court, and then brought this action against the NYSTA in the Court of Claims. The Second Department held that the standards for liability of the NYSTA as the owner of the construction site were not the same as the standards of liability for the defendants in the state action. Therefore the collateral estoppel doctrine did not apply. The court also held that the NYSTA was acting in a proprietary, not a governmental, capacity. Therefore governmental immunity was not invoked:

Regarding whether NYSTA had the authority to exercise supervision or control over the performance of the claimants’ work, we find that it met its prima facie burden of demonstrating that it had no such authority … . In opposition, however, the claimants raised a triable issue of fact regarding NYSTA’s involvement at the work site … . Regarding the alleged dangerous condition of the work site itself, NYSTA, in support of its motion, argued only that it could not be held liable for failing to remediate soil containing chemicals because the claimants’ job was to remedy that very condition. We find that NYSTA failed to demonstrate, prima facie, that the claimants were injured from defective or hazardous conditions that were part of or inherent in the work they were performing… , or from conditions that were readily observable… . In addition, the claimants raised a triable issue of fact as to whether their injuries were caused by a hazardous condition that they were not specifically hired to remediate … . Indeed, whether a dangerous condition is within the scope of the work an employee or contractor is hired to perform is a fact-specific inquiry … . Grasso v New York State Thruway Auth., 2018 NY Slip Op 01453, Second Dept 3-7-18

LABOR LAW-CONSTRUCTION LAW (NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/CIVIL PROCEDURE (COLLATERAL ESTOPPEL, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/IMMUNITY (GOVERNMENTAL IMMUNITY, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/GOVERNMENTAL IMMUNITY (NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/COLLATERAL ESTOPPEL (NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/PROPRIETARY FUNCTION (GOVERNMENTAL IMMUNITY, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))/GOVERNMENTAL FUNCTION, (GOVERNMENTAL IMMUNITY, NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT))

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COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge concurring opinion, determined that the complaints stated causes of action against the Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO),  and National Grid Electric Services LLC based upon defendants’ failure to shut down the power in advance of landfall by Hurricane Sandy. Plaintiffs alleged the failure to shut down the power resulted in fires which destroyed their property. The complaints alleged the defendants acted in a proprietary, not governmental, capacity and therefore were not entitled to governmental immunity. The Court of Appeals held that the defendants, at this pre-answer stage, had not met their burden of demonstrating their actions were governmental:

Defendants moved to dismiss the amended complaints pursuant to CPLR 3211 (a) (7) insofar as asserted against them on the ground that LIPA was immune from liability based on the doctrine of governmental function immunity, and that LILCO and National Grid were entitled to the same defense. Specifically, LIPA argued, among other things, that the actions challenged were taken in the exercise of its governmental capacity and were discretionary, and, even if they were not discretionary, plaintiffs’ failure to allege a special duty in the complaints amounted to a failure to state viable claims. Plaintiffs opposed the motions on the ground that defendants’ actions were proprietary, not governmental, and that special duty rules did not apply. Supreme Court denied the motions to dismiss in three substantially similar orders. * * *

… .[P]laintiffs’ allegations concern the provision of electrical power by defendants, a service that traditionally has been provided by private entities in the State of New York. In fact, LIPA itself was created to replace LILCO which, at the time, was an “investor owned utility” (Public Authorities Law § 1020-a). This takeover was anomalous and, when the legislation creating LIPA was enacted, the New York State Public Service Commission — the agency charged with ensuring safe and reliable utility service throughout the State — observed that, “[i]n New York State we have generally adopted a system of private ownership subject to close regulation” … . …

… [W]e cannot say, as a matter of law based only on the allegations in the amended complaints, as amplified, that LIPA was acting in a governmental, rather than a proprietary, capacity when engaged in the conduct claimed to have caused plaintiffs’ injuries. Connolly v Long Is. Power Auth., 2018 NY Slip Op 01148, CtApp 2-20-18

MUNICIPAL LAW (IMMUNITY, COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/IMMUNITY (GOVERNMENTAL, COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/NEGLIGENCE (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/GOVERNMENTAL IMMUNITY (ELECTRIC POWER,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/UTILITIES (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))/ELECTRIC POWER (GOVERNMENTAL IMMUNITY,  COMPLAINTS AGAINST LONG ISLAND ELECTRIC POWER PROVIDERS STATED CAUSES OF ACTION FOR NEGLIGENCE IN FAILING TO SHUT DOWN POWER BEFORE LANDFALL BY HURRICANE SANDY, DEFENDANTS DID NOT DEMONSTRATE THEY WERE ENTITLED TO GOVERNMENTAL IMMUNITY AT THIS PRE-ANSWER STAGE (CT APP))

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STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT).

The Third Department determined the wrongful death action against state police officers who stopped plaintiff’s decedent (for following too closely) but did not issue a traffic ticket was properly dismissed. Decedent told the officers he had had two drinks, was tired and would call his brother to take him home. The officers left decedent on the side of the road. Decedent was later found dead in his car. Although decedent’s blood alcohol content was above the legal limit, the officers testified they did not see any signs of intoxication when they spoke with decedent. The court found there was no special relationship between the decedent and the officers and the state was therefore immune from suit:

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Where, as here, a claim arises out of the performance of an act undertaken for the protection and safety of the public pursuant to general police powers … , the governmental entity is immune from liability for the negligent performance of that governmental function, unless it owed a special duty to the injured party… . As relevant here, a special duty arises when the governmental entity “voluntarily assumed a duty to the [injured party] beyond what was owed to the public generally” … . To establish a special duty through voluntary assumption, the injured party must demonstrate that the governmental agents assumed, through promises or actions, an affirmative duty to act on behalf of the injured party, that the agents knew that inaction could lead to harm, that there was some form of direct contact between the injured party and the agents and that the injured party justifiably relied on the agents’ affirmative undertaking … . Barnes v State of New York, 2017 NY Slip Op 08564, Third Dept 12-7-17

 

NEGLIGENCE (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/IMMUNITY (STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/GOVERNMENTAL IMMUNITY (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/POLICE  (NEGLIGENCE, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/WRONGFUL DEATH (POLICE, GOVERNMENTAL IMMUNITY,  STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/TRAFFIC STOPS (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/DRIVING WHILE INTOXICATED (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, WRONGFUL DEATH, STATE POLICE STOPPED DECEDENT FOR FOLLOWING TOO CLOSELY, DID NOT NOTICE SIGNS OF INTOXICATION, AND LEFT WITHOUT ISSUING A TICKET, DECEDENT LATER FOUND DEAD IN HIS CAR, NO SPECIAL RELATIONSHIP BETWEEN OFFICERS AND DECEDENT, STATE IMMUNE FROM SUIT (THIRD DEPT))

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CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT.

The Second Department determined the city, which operated an animal shelter, was not liable for a dog-bite injury to infant plaintiff. The Second Department held that the operation of the shelter was a government function and there was no special relationship between the city and the plaintiff. Therefore the city was entitled to immunity from liability:

It is undisputed that the City operates the Shelter pursuant to a statutory mandate. Specifically, Agriculture and Markets Law § 114 (former § 115) requires, inter alia, that each town or city that issues dog licenses “shall . . . establish and maintain a pound or shelter for dogs” … . This provision is contained in article 7 of the Agriculture and Markets Law, which states that the purpose of the article “is to provide for the licensing and identification of dogs, the control and protection of the dog population and the protection of persons, property, domestic animals and deer from dog attack and damage” … .

The City’s act of providing an animal shelter constitutes a governmental function and, therefore, it cannot be held liable absent the existence of a special relationship between it and the plaintiffs giving rise to a special duty of care … . ” A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … . Abrahams v City of Mount Vernon, 2017 NY Slip Op 05699, 2nd Dept 7-19-17

ANIMAL LAW (CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/MUNICIPAL LAW (ANIMAL SHELTER, DOG BITE, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/IMMUNITY (CITY ANIMAL SHELTER, DOG BITE, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/DOG BITES (MUNICIPAL LAW, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)

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COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined that the county had not sufficiently demonstrated a deliberative decision-making process preceding the installation of a particular type of roadway guard rail. It was alleged plaintiff’s decedent’s car was launched 90 feet after striking the sloping end of the guard rail. The county’s summary judgment motion, based upon qualified immunity, should not have been granted:

We conclude that the County failed to meet its initial burden of establishing its entitlement to summary judgment based on qualified immunity … . In particular, the County failed to establish that the decision to change the end assembly of the guide rail from a Type I to a Type II end assembly was “the product of a deliberative decision-making process, of the type afforded immunity from judicial interference”… . Rather, the record reflects that the decision to change the guide rail end assembly was made after Phelps [the guard rail installer] conducted a walk-through and learned that the owners of a hay field needed a “field drive” to allow them to access County Route 41. Although the County submitted evidence that the change order completed by Phelps was signed by FRA [the engineers], there is no showing by the County that there was prior input from FRA regarding the change and, importantly, no analysis to support the decision for the change. Moreover, although the County contended on its motion that it followed the requisite standards of the New York State Department of Transportation, we note that the County’s expert erroneously combined the criteria for two separate uses of Type II end assemblies into one standard. Morris v Ontario County, 2017 NY Slip Op 05533, 4th Dept 7-7-17

NEGLIGENCE (TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/MUNICIPAL LAW (TRAFFIC ACCIDENTS, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/IMMUNITY (MUNICIPAL LAW, HIGHWAY DESIGN, TRAFFIC ACCIDENTS,  COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/HIGHWAY DESIGN (MUNICIPAL LAW, TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

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QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, in a full-fledged opinion by Justice Curran, over a two-justice dissent, reversing Supreme Court, determined defendant landowner was not entitled, as a matter of law, to immunity from a personal injury suit under the “recreational use immunity” provision of the General Obligations Law.  Therefore the landowner’s motion for summary judgment should not have been granted. Plaintiff was injured when the all terrain vehicle (ATV) he was driving struck a pothole on defendant’s dirt road. Pursuant to the General Obligations Law, if the road were deemed suitable for recreational use the landowner would be immune from suit. The majority concluded the road was used for two-way traffic to access homes. Therefore a question of fact had been raised about whether the road was suitable for recreational use within the meaning of the statute:

The road where the accident occurred is the sole means of access to Walker Lake Ontario Road for three homes. Defendant maintains the road by scraping and re-leveling it almost every year. It is wide enough to accommodate one car traveling in each direction. While located in a rural area, the two-lane private road is used for residential purposes, including at times for school bus access. Thus, the physical characteristics of the road are residential, as opposed to recreational in nature … . * * *

… [T]he portion of property where plaintiff fell is not the type of property that the Legislature intended to cover under General Obligations Law § 9-103… . … [C]ourts should ask whether the property “is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in the statute. In other words, is it a type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation?” … . Application of the statutory immunity to the road at issue would lead to its application to potentially any road in a rural area, which is inconsistent with the idea that this statute is in derogation of the common law and should therefore be narrowly construed … .

FROM THE DISSENT:

We respectfully dissent inasmuch as we conclude that defendant, the property owner, is entitled to immunity from liability under the recreational use statute (see General Obligations Law § 9-103). In particular, we disagree with the majority’s conclusion that the property at issue is not suitable for the recreational activity in which plaintiff was engaged at the time of his accident, i.e., operation of an all-terrain vehicle (ATV). We would therefore affirm the order granting defendant’s motion for summary judgment dismissing the complaint. Cummings v Manville, 2017 NY Slip Op 05530, 4th Dept 7-7-17

 

NEGLIGENCE (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/IMMUNITY (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/GENERAL OBLIGATIONS LAW (NEGLIGENCE, RECREATIONAL IMMUNITY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/RECREATIONAL USE OF PROPERTY (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

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CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT.

The Second Department determined the city defendants did not owe a duty of care to plaintiff’s decedent (Rennix) despite the misconduct of a city employee. The city employee, an emergency medical technician (EMT) named Jackson, was in a restaurant when a restaurant employee collapsed. Because Jackson was not supposed to be on a break, she did not attempt to help plaintiff’s decedent, who died before the ambulance arrived. Rennix was pregnant and her baby also died. Because there was no special relationship between the city and plaintiff’s decedent, the city was not liable:

A municipal emergency response system is a governmental function, and thus where an emergency medical technician is alleged to have been negligent while acting in this governmental capacity, the municipality cannot be held liable unless it owed a “special duty” to the injured party … . There are three recognized situations in which a special duty may arise: “(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … .

The plaintiffs contend that the first category applies to the circumstances here, and a special duty arose from Jackson’s violation of Penal Law § 195.00(2), which criminalizes official misconduct. * * *

Even assuming the plaintiffs could establish that Jackson was guilty of misconduct, the violation of Penal Law § 195.00(2) does not give rise to a special duty so as to impose tort liability. For a special duty to arise from the breach of a statutory duty, the governing statute must authorize a private right of action … . A private right of action “may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme”… .

Here, the plaintiffs’ claim fails at the first step of the analysis, as Rennix was not of a class for whose particular benefit the statute was enacted. Rennix v Jackson, 2017 NY Slip Op 05471, 2nd Dept 7-5-17

 

NEGLIGENCE (MUNICIPAL LAW, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/MUNICIPAL LAW (NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)

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QUESTIONS OF FACT RAISED WHETHER DEFAMATORY STATEMENTS WERE MOTIVATED SOLELY BY MALICE, THEREBY OVERCOMING QUALIFIED IMMUNITY, AND WERE MADE WITHIN THE SCOPE OF EMPLOYMENT, THEREBY RENDERING THE EMPLOYER VICARIOUSLY LIABLE.

The Fourth Department, modifying Supreme Court, determined the defamation causes of action properly survived summary judgment with respect to the speaker (Cramer) and the defamation causes of action against Cramer’s employers (the village and fire department), based upon vicarious liability, should not have been dismissed. Cramer had made statements to her employer that plaintiff was a child molester and she had tapes to prove it. There was evidence the statements were motivated solely by malice (and therefore not protected by qualified immunity) and were made within the scope of Cramer’s employment:

We conclude that defendants met their initial burden of establishing that any alleged statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with plaintiff’s application for membership, and thus “the burden shifted to plaintiff[] to raise a triable issue of fact whether the statements were motivated solely by malice’ ” … . “If [Cramer’s] statements were made to further the interest protected by the privilege, it matters not that [she] also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication’ ” … . Plaintiff provided the deposition testimony of the assistant fire chief, who testified that Cramer told him to “go tell [plaintiff] for me that if he continues with this application I’m going to pull out tapes that I have that shows he’s a child molester and that it’s going to ruin his life.” Plaintiff also provided the deposition testimony of a woman who was at the Fire Department … and heard Cramer call plaintiff a “child molester”; that same witness heard Cramer call plaintiff a pedophile in 2011. A Fire Department employee testified in his deposition that he heard Cramer say to her husband that she had proof that plaintiff was a “child molester.” In light of that evidence, we therefore conclude that plaintiff raised an issue of fact whether Cramer’s statements were motivated solely by malice and thus are not protected by a qualified privilege.

“An employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made”… . We further conclude that defendants failed to establish their entitlement to judgment as a matter of law that Cramer was not acting within the scope of her employment when she allegedly made the statements to the assistant fire chief and/or at the meeting … . Stevenson v Cramer, 2017 NY Slip Op 05353, 4th Dept 6-30-17

 

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CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO-CAUSED, STATE ENTITLED TO QUALIFIED IMMUNITY.

The Third Department determined claimant’s negligent highway design action was properly no-caused after a non-jury trial. Claimant struck a disabled vehicle that was on the shoulder of the road. Claimant alleged the four-foot wide shoulder was too narrow. The state was entitled to qualified immunity for the highway design:

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Defendant has a “duty to keep its roadways in a reasonably safe condition,” but “is afforded ‘a qualified immunity from liability arising out of a highway planning decision'” … . Qualified immunity does not attach where defendant’s “study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan,” however, and it falls on defendant to show that its actions resulted from a sufficiently deliberative process … .

Claimant cites various alleged deficiencies in the design of Route 7 relating to his assertion that the four-foot wide shoulder where the disabled vehicle was parked was too narrow. Route 7 is a four-lane freeway originally designed for traffic speeds of 70 miles per hour but, due to it being on a prolonged incline, a third “climbing lane” was added in the westbound direction to allow slow vehicles to make their way uphill without posing difficulties for other drivers. The credible proof at trial indicated that the shoulder width reflected the slower vehicles traveling in a climbing lane that was wide enough, in any case, to allow vehicles to pass a disabled vehicle on the shoulder. The record further reveals that the shoulder design was appropriate under the guidelines in place when the road was designed and built … . Inasmuch as the shoulder “that was installed met the relevant design standards in effect at the time of its construction,” the Court of Claims properly concluded that defendant cannot be held liable for that design … . Lake v State of New York, 2017 NY Slip Op 05142, 3rd Dept 6-22-17

 

NEGLIGENCE (HIGHWAY DESIGN, IMMUNITY, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)/IMMUNITY (HIGHWAY DESIGN, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)/TRAFFIC ACCIDENTS (HIGHWAY DESIGN, IMMUNITY, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)/HIGHWAY DESIGN (IMMUNITY, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)

, ,

COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL.

The Second Department determined governmental function immunity protected the county from suit in this motorcycle accident case. Plaintiff was riding in a charity event and alleged the traffic control by the county caused his injury:

The complaint alleged, among other things, that the County defendants were negligent in failing to properly control traffic along the route of the motorcycle run, and specifically, at the location of the accident. …

[T]he County defendants established their prima facie entitlement to judgment as a matter of law pursuant to the governmental function immunity defense with evidence that the conduct complained of involved the exercise of the police officers’ professional judgment, and was therefore discretionary … . Farrago v County of Suffolk, 2nd Dept 6-21-172017 NY Slip Op 05067

MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/IMMUNITY (MUNICIPAL LAW, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/NEGLIGENCE (MUNICIPAL LAW, IMMUNITY, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/TRAFFIC CONTROL (MUNICIPAL LAW, IMMUNITY, TRAFFIC ACCIDENTS, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, IMMUNITY, COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL)

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