Negligence Archives - New York Appellate Digest

Employment Law, Municipal Law, Negligence

THE ERIE COUNTY SHERIFF’S OFFICE (ECSO) IS NOT A SEPARATE ENTITY APART FROM THE COUNTY; THE COUNTY MAY BE SUED FOR THE ACTIONS OF CIVILIAN EMPLOYEES OF THE SHERIFF’S OFFICE PURSUANT TO RESPONDEAT SUPERIOR; HERE PLAINTIFF ALLEGED PLAINTIFF’S DECEDENT DIED IN HIS CAR AWAITING RESCUE DURING A SNOWSTORM (FOURTH DEPT).

The Fourth Department determined the Erie County Sheriff’s Office (ECSO) is not a separate entity apart from the county, and the county may be liable for the acts of the sheriff’s office’s civilian employees pursuant to respondeat superior. The lawsuit alleged the defendants failed to timely rescue plaintiff’s decedent who died in his car during a snowstorm:

A sheriff’s office has no legal identity separate from its corresponding county, “and thus an ‘action against the Sheriff’s [Office] is, in effect, an action against the [corresponding] County itself’ ” … . …

Although a “county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior” … , we conclude that a county may be vicariously liable for the negligent acts of the sheriff’s civilian employees given the general rule that a sheriff’s office does not exist separately from its corresponding county … . Moreover, and contrary to defendants’ further contention, the County is not entitled to immunity under Executive Law § 25 because that statute was not pleaded as an affirmative defense in the answer (see CPLR 3018 [b] …). Abate v County of Erie, 2021 NY Slip Op 03940, Fourth Dept 6-17-21

June 17, 2021/0 Comments/by Bruce Freeman

Evidence, Negligence

THE MAJORITY CONCLUDED PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS FATAL VEHICLE-PEDESTRIAN ACCIDENT CASE BECAUSE DECEDENT’S ALLEGED CONTRIBUTORY NEGLIGENCE DOES NOT BAR SUMMARY JUDGMENT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER DECEDENT’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT).

The Fourth Department, over a dissent, determined plaintiff was entitled to summary judgment in this fatal vehicle-pedestrian accident case. The majority held that any negligence on the part of plaintiff’s decedent constituted comparative negligence which is no longer a bar to summary judgment. The dissent argued there was a question of fact whether decedent’s actions constituted the sole proximate cause of the accident, which would preclude summary judgment:

We respectfully disagree with the dissent that the evidence submitted by plaintiff failed to establish proximate causation. The only facts that defendants cite for the proposition that plaintiff failed to meet his burden arise from decedent’s actions, i.e., crossing outside a marked crosswalk and wearing dark clothing as daylight faded. The Court of Appeals has made clear, however, “that a plaintiff’s comparative negligence is no longer a complete defense and its absence need not be pleaded and proved by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages” … . Thus, “to obtain partial summary judgment on defendant’s liability[, a plaintiff] does not have to demonstrate the absence of his [or her] own comparative fault” … .

… [P]laintiff was therefore not required to establish that decedent was not negligent, rather he was required to demonstrate that defendant was negligent and that such negligence was a proximate cause of decedent’s injuries … .

From the dissent:

Even assuming … the majority is correct that the issue of proximate cause was raised by plaintiff and that plaintiff met his burden with respect to that element, I conclude that defendants raised a triable issue of fact in opposition. Defendants presented evidence that plaintiff’s decedent was crossing … outside of a designated crosswalk, at dusk, with headphones and dark clothing on and without looking for oncoming traffic. … [D]efendants contend that decedent violated Vehicle and Traffic Law § 1152 (a). Consequently, even though defendants were negligent as a matter of law based on an unexcused violation of Vehicle and Traffic Law § 1146 (a), on this record, a jury could find that decedent’s actions were the sole proximate cause of the accident … . Lowes v Anas, 2021 NY Slip Op 03973, Fourth Dept 6-17-21

June 17, 2021/0 Comments/by Bruce Freeman

Medical Malpractice, Negligence

THE DOCTOR ORDERED A CERTAIN DOSAGE OF MEDICATION BE ADMINISTERED FOR “1” MINUTE TO ADDRESS SYMPTOMS OF A STROKE, BUT A NURSE MISTAKENLY PROGRAMMED THE MACHINE TO ADMINISTER THE MEDICATION FOR “11” MINUTES; THE ACTION SOUNDS IN MEDICAL MALPRACTICE, NOT ORDINARY NEGLIGENCE (THIRD DEPT).

The Third Department determined Supreme Court properly ruled this case sounded in medical malpractice, not ordinary negligence, and explained the difference. Plaintiff had been given the wrong dosage of tPA upon arrival at the hospital to address symptoms of a stroke. Due to a mistake, the machine was programmed to administer a quantity of the drug for “11” minutes, instead of the “1” minute ordered by the doctor. The mistake was noticed after three minutes:

… [T]he case is one of medical malpractice only. “Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” … . “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” … . As relevant here, plaintiffs’ claims are based upon allegations that defendants acted negligently in their medical care and treatment of plaintiff — i.e., defendants’ actions or omissions with respect to the proper dosing of tPA, the progression of the stroke with or without the proper administration of tPA, the medical benefits and risks of tPA based on the proper or improper administration of the medication, and the potential loss of the opportunity to attain tPA’s benefits based on its improper administration. Although it is undisputed that a nurse inadvertently mis-administered the tPA by erroneously programming the pump, she was assisting the physician by administering the prescribed medication and was an integral part of the process of rendering medical treatment to the patient. The nurse’s error does not transform this case to one of simple negligence rather than medical malpractice … . Holland v Cayuga Med. Ctr. at Ithaca, Inc., 2021 NY Slip Op 03896, Third Dept 6-17-21

June 17, 2021/0 Comments/by Bruce Freeman

Municipal Law, Negligence, Vehicle and Traffic Law

IN A TRAFFIC ACCIDENT INVOLVING A FIRE TRUCK DRIVEN BY A VOLUNTEER FIREFIGHTER, THE FIRE DISTRICT CAN BE HELD TO A NEGLIGENCE, AS OPPOSED TO A RECKLESS DISREGARD, STANDARD PURSUANT TO GENERAL MUNICIPAL LAW 205-B (SECOND DEPT).

The Second Department, over a dissent, determined the defendant volunteer fire district could be held liable for a traffic accident under a negligence, as opposed to reckless disregard, standard, pursuant General Municipal Law 205-b. The dissent argued the reckless disregard standard applies because General Municipal Law 205-b does not specify a particular standard of care:

Pursuant to General Municipal Law § 205-b, “fire districts created pursuant to law shall be liable for the negligence of volunteer firefighters duly appointed to serve therein in the operation of vehicles owned by the fire district upon the public streets and highways of the fire district, provided such volunteer firefighters, at the time of any accident or injury, were acting in the discharge of their duties.” Thus, contrary to the Fire District’s contention, it was not limited to liability for conduct rising to the level of “reckless disregard” under Vehicle and Traffic Law § 1104(e), and could be held liable for the ordinary negligence of a volunteer firefighter operating the Fire District’s vehicle … . Anderson v Commack Fire Dist., 2021 NY Slip Op 03821, Second Dept 6-16-21

June 16, 2021/0 Comments/by Bruce Freeman

Evidence, Medical Malpractice, Negligence, Public Health Law

THE JURY WAS INSTRUCTED ON THE CRITERIA FOR CONSCIOUS PAIN AND SUFFERING IN THIS NURSING-HOME MALPRACTICE CASE, BUT THE JUDGE DID NOT FIRST DETERMINE PLAINTIFF HAD SOME LEVEL OF COGNITIVE AWARENESS; THE CONSCIOUS PAIN AND SUFFERING CRITERIA ARE THE SAME FOR MALPRACTICE AND FOR VIOLATION OF PUBLIC HEALTH LAW 2801-D; NEW DAMAGES TRIAL ORDERED (FIRST DEPT).

The First Department vacated the $2.5 million pain and suffering award in this nursing-home malpractice case because the jury was instructed on the elements of “conscious” pain and suffering, but the judge did not first determine plaintiff had some level of cognitive awareness. The suit alleged the nursing home’s failure to monitor plaintiff-resident’s blood sugar level led to brain injury and death. A new trial on damages was ordered. The First Department noted that the criteria for “conscious pain and suffering” damages is the same for malpractice and violation of Public Health Law 2801-d:

The court should not have allowed the jury to award damages for pain and suffering without first determining that the decedent “experienced some level of cognitive awareness following the injury”… . There is no legal basis for applying this rule in the general negligence/malpractice context but not in the context of a violation of PHL 2801-d. Although PHL 2801-d(4) provides that “[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, . . . including tort causes of action, and may be granted regardless of whether such other remedies are available or are sought,” this language has been interpreted as authorizing a separate cause of action, not a separate category of damages … . Smith v Northern Manhattan Nursing Home, Inc., 2021 NY Slip Op 03818, First Dept 6-15-21

June 15, 2021/0 Comments/by Bruce Freeman

Employment Law, Medical Malpractice, Negligence

THE MEDICAL MALPRACTICE ACTION AGAINST A FIRST-YEAR RESIDENT, WHO DID NOT EXERCISE INDEPENDENT JUDGMENT IN FOLLOWING THE DIRECTION OF HIS SUPERVISORS TO DISCONTINUE A MEDICATION, SHOULD HAVE BEEN DISMSSED; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the medical malpractice action against Dr. Drummond, a first-year resident, should have been dismissed because he did not exercise any independent medical judgement but merely followed the direction of his supervisors when medication was discontinued:

Defendants met their initial burden on the motion by presenting the affidavit of an expert who opined that, as a first-year resident, Dr. Drummond could not and did not make any medical decisions independently and that he properly wrote the discharge instruction to discontinue the medication only after discussing and confirming that decision with the appropriate supervisors, a practice that complied with the applicable standard of care … . Defendants also submitted the deposition testimony of Drs. Drummond and Bath, which established that Dr. Drummond consulted with Dr. Bath prior to decedent’s discharge and confirmed with him that the decision had been made to discontinue the medication. Plaintiff failed to raise a triable issue of fact in opposition … . Based on that conclusion, we likewise agree with defendants that the court erred in denying that part of the motion seeking summary judgment dismissing the complaint and any cross claims against Kaleida Health insofar as the complaint asserts a claim of vicarious liability based on the alleged conduct of Dr. Drummond … . Bieger v Kaleida Health Sys., Inc., 2021 NY Slip Op 03772, Fourth Dept 6-11-21

June 11, 2021/0 Comments/by Bruce Freeman

Civil Forfeiture, Evidence, Negligence

IN THIS SLIP AND FALL CASE WHERE COGNITIVE IMPAIRMENT WAS ALLEGED, DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM CONDUCTING A NEUROPSYCHOLOGICAL EXAMINATION (NPE) OF PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants were entitled to a neuropsychological examination (NPE) of the plaintiff pursuant to CPLR 3121:

… [W]e agree with defendants that the preclusion order sought by plaintiff is not warranted inasmuch as the NPE is material and necessary to defend against plaintiff’s claims that he sustained head injuries and cognitive impairment ”’ . Here, plaintiff placed his mental and physical condition in controversy by alleging in the verified complaint, as amplified by the verified bills of particulars, that he injured, inter alia, his head, neck, spine, left wrist and left elbow and suffered “emotional and psychological pain . . . with related mental anguish, stress, and anxiety” as a result of the accident. Furthermore, defendants’ submissions in opposition to the motion established, inter alia, that plaintiff’s neurologist and psychologist had both ordered neuropsychological evaluations of plaintiff that had not been conducted, and that the requested NPE differs significantly from neurologic and neurosurgical examinations. In particular, defendants submitted an affidavit from the neuropsychologist who would conduct the NPE, who averred that he would utilize a different methodology, would administer a different battery of psychological tests, and would complete more detailed cognitive testing to determine the existence of any mood or behavioral deficits resulting from plaintiff’s alleged injuries, whereas the testing done by neurologists and neurosurgeons generally focuses on physical abnormalities and physical manifestations of those abnormalities. Pokorski v FDA Logistics, 2021 NY Slip Op 03770, Fourth Dept 6-11-21

June 11, 2021/0 Comments/by Bruce Freeman

Evidence, Negligence

QUESTION OF FACT WHETHER THE DRIVER OF DEFENDANT’S TRUCK IN THIS TRAFFIC ACCIDENT CASE WAS AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE FOR WHOM DEFENDANT WOULD BE LIABLE PURSUANT TO RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this traffic accident case, determined there was a question of fact about the liability of the delivery company under respondeat superior. Supreme Court determined the driver was an independent contractor and the company was therefore not liable:

An entity that retains an independent contractor generally is not liable for the independent contractor’s negligent acts … . Whether a relationship between a delivery company and its drivers ” ‘is that of employees or independent contractors involves a question of fact as to whether there is evidence of either control over the results produced or over the means used to achieve the results’ ” … . Here, defendant’s own evidentiary submissions established that defendant rented the delivery truck that was involved in the accident, was empowered to install its own signage on the truck, designed the delivery routes, set the times for the deliveries, and required drivers to submit incident reports following any accidents, thereby raising a question of fact with respect to the nature of the employment relationship … . Raymond v Hillebert, 2021 NY Slip Op 03684, Fourth Dept 6-11-21

June 11, 2021/0 Comments/by Bruce Freeman

Evidence, Negligence

PLAINTIFF’S DECEDENT WAS FOUND AT THE BOTTOM OF STAIRS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE CAUSE OF THE FALL WAS UNKNOWN; IN ADDITION, THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted because the cause of the fall was unknown. Plaintiff’s decedent was found dead at the bottom of the stairs

[Defendants] moved … for summary judgment dismissing the complaint … contending … that the plaintiffs did not know what caused the incident to occur and that it would be speculative to assume that any defect in the staircase caused the decedent to fall. … The plaintiffs opposed the motion, contending … that the Noseworthy doctrine applied and that circumstantial evidence showed that the decedent fell because the staircase connecting the first floor to the basement of the restaurant/bar was in a defective condition ,,, , …

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them by demonstrating that the plaintiffs could not identify what caused the decedent to fall … . In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs’ contention, the Noseworthy doctrine does not apply to the circumstances of this case since the defendants’ knowledge as to the cause of the decedent’s accident is no greater than that of the plaintiffs … . Even accepting the alleged defects identified in the plaintiffs’ expert’s affidavit, the plaintiffs failed to raise a triable issue of fact as to whether the decedent’s fall was proximately caused by those allegedly unsafe conditions … . Atehortua v Jaramillo, 2021 NY Slip Op 03569, Second Dept 6-9-21

June 9, 2021/0 Comments/by Bruce Freeman

Landlord-Tenant, Negligence

PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT LANDLORD’S BUILDING, DID NOT RAISE A QUESTION OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER, WHO ENTERED THROUGH AN ALLEGEDLY BROKEN DOOR, OR A TENANT OR AN INVITEE; IF THE ASSAILANT WERE A TENANT OR INVITEE, THE ALLEGEDLY BROKEN DOOR WOULD NOT BE A PROXIMATE CAUSE OF PLAINTIFF’S INJURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant landlord’s motion for summary judgment in this third-party assault case should have been granted. Although there was an issue of fact whether exterior doors to the apartment building were operable in the day plaintiff was assaulted, plaintiff did not raise a question of fact about whether the assailant was an intruder, as opposed to a tenant:

While plaintiff raised an issue of fact as to whether the building’s entrance doors were operable on the day of the incident, plaintiff failed to raise an issue of fact that the assailant was an intruder who gained access to the building through a negligently maintained entrance. Plaintiff testified that the assailant was masked and hooded, with only his eyes and the tip of his nose visible. Plaintiff admitted that she could not identify the assailant. Although plaintiff saw the assailant flee down the stairs, towards the 19th floor, she did not see him exit the building and does not know where he went … . Under the circumstances, no triable issue of fact exists because there is no evidence from which a jury could conclude, without pure speculation, that the assailant was an intruder, as opposed to a tenant or invitee … . Astupina v West Farms Sq. Hous. Dev. Fund Corp., 2021 NY Slip Op 03542, First Dept, 6-8-21

June 8, 2021/0 Comments/by Bruce Freeman

THE DOCTOR ORDERED A CERTAIN DOSAGE OF MEDICATION BE ADMINISTERED FOR “1” MINUTE TO ADDRESS SYMPTOMS OF A STROKE, BUT A NURSE MISTAKENLY PROGRAMMED THE MACHINE TO ADMINISTER THE MEDICATION FOR “11” MINUTES; THE ACTION SOUNDS IN MEDICAL MALPRACTICE, NOT ORDINARY NEGLIGENCE (THIRD DEPT).

IN A TRAFFIC ACCIDENT INVOLVING A FIRE TRUCK DRIVEN BY A VOLUNTEER FIREFIGHTER, THE FIRE DISTRICT CAN BE HELD TO A NEGLIGENCE, AS OPPOSED TO A RECKLESS DISREGARD, STANDARD PURSUANT TO GENERAL MUNICIPAL LAW 205-B (SECOND DEPT).

THE MEDICAL MALPRACTICE ACTION AGAINST A FIRST-YEAR RESIDENT, WHO DID NOT EXERCISE INDEPENDENT JUDGMENT IN FOLLOWING THE DIRECTION OF HIS SUPERVISORS TO DISCONTINUE A MEDICATION, SHOULD HAVE BEEN DISMSSED; THE DISSENT DISAGREED (FOURTH DEPT).

IN THIS SLIP AND FALL CASE WHERE COGNITIVE IMPAIRMENT WAS ALLEGED, DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM CONDUCTING A NEUROPSYCHOLOGICAL EXAMINATION (NPE) OF PLAINTIFF (FOURTH DEPT).

QUESTION OF FACT WHETHER THE DRIVER OF DEFENDANT’S TRUCK IN THIS TRAFFIC ACCIDENT CASE WAS AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE FOR WHOM DEFENDANT WOULD BE LIABLE PURSUANT TO RESPONDEAT SUPERIOR (FOURTH DEPT).

PLAINTIFF’S DECEDENT WAS FOUND AT THE BOTTOM OF STAIRS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE CAUSE OF THE FALL WAS UNKNOWN; IN ADDITION, THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).

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