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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

THE CONTRACTOR HIRED TO CLEAN THE HOTEL LOBBY LAUNCHED AN INSTRUMENT OF HARM BY POURING CLEANING SOLUTION ON THE FLOOR AND FAILING TO PUT DOWN MATS OR POST WARNINGS; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE CONTRACTOR IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant cleaning contractor launched an instrument of harm by pouring cleaning solution on the floor in this slip and fall case. Therefore plaintiff was entitled to summary judgment against the contractor:

Plaintiff alleged [the cleaning contractor] poured a large amount of cleaning solution onto the lobby’s floor without barricading the location to prevent hotel guests from entering the area while he was cleaning, failed to place down safety mats to provide people with a safe passage through the area while the floor was wet, and failed to post appropriate warning signs.

There is video surveillance footage of the accident; no party disputes that the floor was dry when plaintiff first walked through the area to enter the restroom and that it was wet when he returned about five minutes later.

Plaintiff is entitled to partial summary judgment as against Town House, the outside cleaning contractor, since the evidence showed that Town House’s employee launched a force or instrument of harm by negligently mopping or leaving a puddle of water near the guest elevators in the lobby before plaintiff’s fall … . Tobola v 123 Wash., LLC, 2021 NY Slip Op 03537, First Dept 6-3-21

 

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THE RECENT US SUPREME COURT CASE HOLDING THAT A STATE MUST CONSENT TO SUIT AGAINST IT IN A SISTER STATE DID NOT AFFECT THE DOCTRINE OF “WAIVER OF SOVEREIGN IMMUNITY;” HERE NEW JERSEY WAIVED THE DOCTRINE BY PARTICIPATING IN THE FIRST TRIAL OF THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, in a comprehensive discussion which cannot be fairly summarized here, determined the defendant, New Jersey Transit, had waived sovereign immunity by participating in the first trial of this traffic accident case. The fact that, since the first trial, the US Supreme Court ( the Hyatt case) held a state may not be sued in a sister state without consent (the “consent to the jurisdiction of a sister state” issue) did not require a different result on the “waiver of sovereign immunity” issue:

There is no dispute that New Jersey Transit did not make a voluntary appearance in this action. It then argues that it made no clear statement by its litigation conduct that it was submitting to the jurisdiction of the courts of this state, pointing out that it has taken a defensive posture from this action’s inception because it had no legitimate legal basis for objecting to New York’s jurisdiction until seven years after the action was commenced, when Hyatt was decided, in 2019. These arguments are an oversimplification of this substantive constitutional issue. The issue is whether New Jersey Transit undertook a litigation strategy that can be deemed a voluntary waiver of its sovereign immunity. * * *

We reject New Jersey Transit’s argument that the sovereign immunity defense was not available at the time it served its answer in this action. The doctrine of sovereign immunity as it applies to states has been available at least since … 1979. The Hyatt Court dramatically altered the sovereign immunity analysis … . Hyatt did not, however, give birth to the doctrine. We cannot help but see the obvious unfair tactical advantage of conceding liability and losing at the first trial on damages and then seeking dismissal of the second trial on damages several years later, based not on the merits of the action but on an alleged “new” defense of sovereign immunity. Belfand v Petosa, 2021 NY Slip Op 03522, First Dept 6-3-21

 

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PLAINTIFF ALLEGED THE INCREASED TRAFFIC RELATED TO AN EVENT AT DEFENDANT COUNTRY CLUB CREATED A DANGEROUS CONDITION CONTRIBUTING TO A COLLISION WITH A VEHICLE ATTEMPTING TO ENTER THE COUNTRY CLUB PREMISES; PLAINITIFFS WERE ENTITLED TO DISCOVERY FROM THE COUNTRY CLUB REGARDING CROWD CONTROL, MARKETING, EVENT PLANNING, SAFETY PLANS, ETC. (THIRD DEPT).

The Third Department determined plaintiffs’ motion to compel discovery from defendant country club was properly granted. Plaintiffs were injured in a collision when defendant driver made a left turn across plaintiffs’ lane of travel to enter the country club premises to attend a special event. Plaintiffs alleged that defendant country club did not take adequate measures to control the increased traffic generated by the event, thereby creating a dangerous condition:

Plaintiffs’ complaint alleges a cause of action for negligence based on, as relevant here, breach of a special duty of care by defendant. The crux of plaintiffs’ theory of liability against defendant is that it organized and hosted an event that it knew or should have known would generate a large amount of traffic to the site, but failed to account for the impact of same, and said failure was a proximate cause of plaintiffs’ injuries. A review of plaintiffs’ demands evinces that they generally sought information regarding crowd control, marketing/advertisement materials, ticket sales, minutes concerning the planning of the event, copies of emergency management plans, safety plans and copies of any and all reports of past medical emergencies at the event. For the most part, the demands were concerned with the event held in 2019, as well as those held in the preceding five years. A review of the record reveals that the discovery sought is aimed at determining whether defendant created a dangerous condition by holding a large event, thus increasing vehicular and pedestrian traffic, with notice of the danger and failing to take appropriate precautions … . Rote v Snyder, 2021 NY Slip Op 03508, Third Dept 6-3-21

 

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