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DEFENDANT FAILED TO PRESENT EVIDENCE THAT THE AREA OF PLAINTIFF’S SLIP AND FALL WAS INSPECTED OR CLEARED OF ICE AND SNOW DURING THE TWO DAYS PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant UPS did not demonstrate the lack of constructive notice of the snow and ice condition upon which plaintiff allegedly slipped and fell:

UPS failed to demonstrate, prima facie, that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell in the early morning of January 1, 2011 … . In support of that branch of its motion which was for summary judgment dismissing the complaint, UPS failed to submit any evidence concerning the condition of the subject area after it had been cleared of snow and ice on December 29, 2010, or within a reasonable time prior to the plaintiff’s fall on the morning of January 1, 2011 … . UPS submitted evidence demonstrating that it ceased all snow removal efforts on December 29, 2010, in relation to a storm that dropped a significant amount of snow, and that the area where the plaintiff fell was free of ice at that time. However, it submitted no evidence as to when the area was inspected again between December 29, 2010, and the time of the plaintiff’s accident more than two days later. Under the circumstances, triable issues of fact exist including whether the alleged ice condition that caused the plaintiff to slip and fall was visible and apparent, and whether it had existed for a sufficient length of time before the accident such that UPS could have discovered and corrected it … . Anderson v United Parcel Serv., Inc., 2021 NY Slip Op 02777, Second Dept 5-5-21

 

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PLAINTIFF’S DECEDENT WAS TAKEN TO THE DEFENDANT HOSPITAL’S EMERGENCY ROOM AND WAS OPERATED ON BY AN INDEPENDENT SURGEON; PLAINTIFF DEMONSTRATED THE EMERGENCY ROOM EXCEPTION APPLIED AND THE HOSPITAL WAS VICARIOUSLY LIABLE FOR THE SURGEON’S ALLEGED MALPRACTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff demonstrated the emergency room exception applied and defendant hospital could be held vicariously liable for the alleged malpractice an independent surgeon:

In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment, but not for the negligence or malpractice of an independent physician, as when the physician is retained by the patient himself or herself … . However, as an exception to this rule, a hospital may be held vicariously liable for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician … .

Here, the plaintiff satisfied her prima facie burden of demonstrating that the emergency room exception applies by producing evidence that the decedent was brought to the Hospital’s emergency room by ambulance, did not request treatment by a particular physician, and was assigned to Reichman’s care by the Hospital … . Goffredo v St. Luke’s Cornwall Hosp., 2021 NY Slip Op 02788, Second Dept 5-5-21

 

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ALTHOUGH THE CORD WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL MAY HAVE BEEN OPEN AND OBVIOUS, DEFENDANTS DID NOT DEMONSTRATE IT WAS NOT INHERENTLY DANGEROUS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not establish that the cord or wire over which plaintiff tripped and fell was not inherently dangerous, even if the cord was open and obvious:

The plaintiff allegedly was injured when she tripped and fell over a cord or microphone wire while attending an event at certain property purportedly owned by the defendants … . She commenced this action against the defendants and one other defendant to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the defendants’ motion on the ground that the condition of the wire or cord was open and obvious and not inherently dangerous. The plaintiff appeals.

In support of their motion, the defendants failed to establish, prima facie, that the cord or wire was not inherently dangerous … . Franzo v Town of Hempstead, 2021 NY Slip Op 02787, Second Dept 5-5-21

 

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DEFENDANTS DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF LIQUID ON THE DANCE FLOOR IN THE AREA OF PLAINTIFF’S SLIP AND FALL; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it lacked constructive notice of liquid on the dance floor in the area of plaintiff’s slip and fall:

The defendants did not submit any evidence regarding specific cleaning or inspection of the area in question, or any other affirmative proof to demonstrate how long the condition had existed. In support of their motion, they submitted the transcript of the deposition testimony of Hercules Sirico, the catering hall owner, who testified that the wood dance floor would be cleaned on an as-needed basis by one of the porters, of whom he was in charge. Sirico also testified that, on the night of the subject party, he entered the ballroom where the party was being held multiple times to make sure that members of his staff were doing things properly, but did not stay in the ballroom during the entire party. Although Sirico testified that, while he was in the ballroom, he always took a look at the dance floor and did not notice any wetness or liquids on it, he also testified that every time he was in the ballroom, the dance floor was always packed, with more than 100 people dancing, that guests would get drinks at the “constantly busy” mobile bar situated just “shy” of the dance floor, and bring the drinks onto the dance floor, and that no one stopped or warned the guests from doing so. Further, the defendants submitted the transcript of the plaintiff’s deposition testimony, during which the plaintiff testified that when he went to dance, he was slipping and sliding on the dance floor because it was wet, that there were a lot of people on the dance floor with drinks, and that it was “very dark” in the ballroom. Ellis v Sirico’s Catering, Inc., 2021 NY Slip Op 02785, Second Dept 5-5-21

 

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QUESTION OF FACT WHETHER A LADDER WAS INTENDED FOR USE AS A STAGE PROP BY ACTORS AS OPPOSED TO AN OSHA COMPLIANT LADDER; EVEN WHERE A LABOR LAW 200 ACTION WILL NOT LIE, A COMMON-LAW NEGLIGENCE CAUSE OF ACTION MAY BE VIABLE; HERE IT WAS ALLEGED DEFENDANT LAUNCHED AN INSTRUMENT OF HARM BY ALTERING THE LADDER (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the Labor Law 200 cause of action against Center Line should have been dismissed but the common law negligence cause of action properly survived summary judgment. Although the decision doesn’t spell it out, it appears that defendant Center Line altered the ladder in question by gluing on an extra rung. Apparently the ladder was to be used by actors and Center Line argued it was a stage prop and was not intended for use an OSHA compliant ladder. The viable contract-based “Espinal” negligence theory was based upon launching an instrument of harm (altering the ladder):

Even assuming that Center Line is a proper Labor Law § 200 defendant, it cannot be held liable under the statute. This case is a means and methods of work case, and there is no proof that Center Line had authority to supervise and control plaintiff’s work … .

A claim for common-law negligence may lie even though there is no Labor Law § 200 liability … . A triable issue of fact exists as to whether Center Line negligently created or exacerbated a dangerous condition so as to have “launche[d] a force or instrument of harm” … . Although Center Line augmented the ladder as directed by Production Core, a triable issue of fact exists as to whether Center Line could have reasonably anticipated that the gluing of the rung to the top of the ladder would pose a hazard and likely to cause injury … . While plaintiff and the codefendants claim that Center Line dangerously altered the ladder despite knowing that the ladder was structural and climbable, Center Line claims that the ladder was a prop ladder that was not meant to be OSHA compliant, and that it augmented the ladder in reliance on Production Core’s assurances that the top portion of the ladder would not be ascended by the actors. Such raises an issue of fact for the jury to decide. Mullins v Center Line Studios, Inc., 2021 NY Slip Op 02756, First Dept 5-4-21

 

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PLAINTIFF WAS INJURED DURING A WATER POLO GAME IN GYM CLASS; HIS NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined a student’s negligent supervision cause of action against the school district stemming from injuries during a water polo game in gym class properly survived summary judgment. Plaintiff alleged his head hit the bottom of the pool:

… [D]efendants failed to meet their initial burden inasmuch as their own submissions on the motion raise triable issues of fact whether they engaged in negligent supervision and whether that negligence was a proximate cause of plaintiff’s injuries. While defendants’ submissions established that the physical education teacher who supervised water polo had modified the typical rules thereof to prevent contact, defendants’ papers raise issues of fact whether those rules were enforced, the water polo game as modified was safe and age-appropriate, and the supervision of the game was reasonable under the circumstances. Among other things, defendants submitted the deposition of the physical education teacher, wherein he provided conflicting testimony as to whether he actually allowed contact during the water polo game and whether he allowed students to take the ball from each other. His testimony therefore created an issue of fact whether defendants had notice of students engaging in dangerous conduct similar to the conduct that caused plaintiff’s injuries and, thus, whether such conduct was preventable … . Zalewski v East Rochester Bd. of Educ., 2021 NY Slip Op 02700, Fourth Dept 4-30-21

 

DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF FELL WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant in this slip and fall case did not demonstrate it lacked constructive notice of the water on the floor as a matter of law. Defendant did not submit any proof demonstrating when the area was last cleaned or inspected:

To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . A “defendant cannot satisfy its burden merely by pointing out gaps in the plaintiff’s case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident” … . While defendant submitted evidence that it hired a contractor who was generally expected to clean up any hazards, such as water on the floor, it did not submit evidence establishing when the area of plaintiff’s fall was last inspected … . As a result, ” ‘[a] triable issue of fact exists as to when the [area of plaintiff’s fall] was last inspected in relation to the accident and, thus, whether the alleged hazardous condition . . . existed for a sufficient length of time prior to the incident to permit . . . defendant to remedy that condition’ ” … . Furthermore, “[t]he fact that plaintiff did not notice water on the floor before [s]he fell does not establish defendant[‘s] entitlement to judgment as a matter of law on the issue whether that condition was visible and apparent” … . Arghittu-Atmekjian v TJX Cos., Inc., 2021 NY Slip Op 02689, Fourth Dept 4-30-21

 

DEFENDANT’S ALLEGED FAILURE TO MAINTAIN ITS TRUCK LED TO AN ACCIDENT IN WHICH A VAN DRIVEN BY PLAINTIFF’S EMPLOYEE STRUCK DEFENDANT’S EMPLOYEE; A LAWSUIT BY DEFENDANT’S EMPLOYEE AGAINST PLAINTIFF CULMINATED IN A $900,000 SETTLEMENT; PLAINTIFF ALLEGED THE RESULTING INCREASED INSURANCE PREMIUMS FORCED PLAINTIFF OUT OF BUSINESS; THE LOSS OF PLAINTIFF’S BUSINESS WAS NOT A FORESEEABLE CONSEQUENCE OF DEFENDANT’S ALLEGED FAILURE TO MAINTAIN ITS TRUCK (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s negligence was not a proximate cause of the damages suffered by plaintiff. Two wheels fell off defendant’s dump truck. Plaintiff’s (Able Medical’s) employee struck one of the wheels and then struck defendant’s employee, the truck driver. Defendant’s employee sued the plaintiff and the matter was settled for $900,000. Plaintiff alleged the increase in insurance premiums resulting from the accident and settlement forced plaintiff to go out of business:

… [P]laintiffs’ theory of causation is based on a lengthy chain of events spanning the course of two and a half years. In their complaint, plaintiffs alleged that defendant failed to maintain its truck, that rear wheels fell off of the truck causing a motor vehicle accident, that the accident resulted in a lawsuit, and that the settlement of the lawsuit ultimately resulted in an increase in insurance premiums for plaintiffs, which caused plaintiffs to close their business. On its motion, defendant established that those alleged economic injuries were not a foreseeable consequence of defendant’s alleged negligent maintenance of its truck and, thus, the connection between defendant’s activities and plaintiffs’ economic losses is too tenuous and remote to permit recovery … . Able Med. Transp., Inc. v Paragon Envtl. Constr., Inc., 2021 NY Slip Op 02687, Fourth Dept 4-30-21

 

QUESTION OF FACT WHETHER AN UNGUARDED, UNILLUMINATED SEAWALL AT THE BACK OF DEFENDANTS’ YARD CONSTITUTED AN ACTIONABLE DANGEROUS CONDITION; PLAINTIFF, AT NIGHT, FELL OVER THE WALL DOWN TO THE BEACH BELOW (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the unguarded seawall in defendants’ backyard constituted a dangerous condition. Plaintiff was at defendants’ party and walked to the back of the yard to relieve himself when he fell over the wall, which was 20 feet above the lake:

Defendants’ backyard is approximately 20 feet above the lake, separated by a natural cliff that runs along the shoreline. Built into the face of the cliff is the 15-foot-high seawall, which consists of two levels, with an upper and a lower platform, and a cement staircase built into the center of the seawall that permits access from the backyard to the lower platform. Defendants’ backyard includes a cement sidewalk that leads to the top of the seawall’s staircase. Plaintiff fell off the seawall down to the beach below and sustained various injuries. * * *

… [D]efendants failed to eliminate all triable issues of fact whether the alleged hazard posed by the cliff and seawall, given the lighting conditions at the time of the accident, “was visible and obvious or presented a latent, dangerous condition” … . Stempien v Walls, 2021 NY Slip Op 02683, Fourth Dept 4-30-21

 

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AFTER WALKING OVER A TRAP DOOR, PLAINTIFF STEPPED BACK AND FELL THROUGH THE OPEN DOOR; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although the lease did not unambiguously insulate the out-of-possession landlord from liability for plaintiff’s fall through an open trap door in a deli, the landlord demonstrated it did not have actual or constructive notice of the dangerous condition. Apparently plaintiff walked over the closed trap door but then stepped back and fell through the open door:

… [T]he owner failed to demonstrate, prima facie, that it was an out-of-possession landlord that did not have a contractual duty under the lease to maintain and repair the subject trapdoor … . “‘[W]hile the meaning of a contract is ordinarily a question of law, when a term or clause is ambiguous and the determination of the parties’ intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact'” … . Although paragraph 46 of the rider to the lease effectively limits the owner’s responsibility to “structural portions” of the deli, that phrase is only partially described in the lease, and is not so clear and unambiguous as to be subject only to the interpretation that it excludes the trapdoor … .

However, the owner established, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive notice of its existence … . At his deposition, the plaintiff testified that he walked over the trapdoor, and then “seconds” later when he stepped back, he fell through a hole caused by the open trapdoor. Accordingly, even though the owner did not present evidence of the last time it inspected the trapdoor, the plaintiff’s testimony establishes lack of constructive notice as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact. Although the owner’s representative testified at his deposition that he was aware of the existence and location of the trapdoor and went into the deli once a month to collect rent, a general awareness that customers could fall through an open trapdoor in the aisle of the deli is legally insufficient to constitute constructive notice of the particular condition that caused the plaintiff’s accident … . Vaughan v Triumphant Church of Jesus Christ, 2021 NY Slip Op 02560, Second Dept 4-28-21

 

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