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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE DEFENDANT’S ALLEGATION PLAINTIFFS’ CAR STOPPED SUDDENLY DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s allegation plaintiffs’ vehicle came to a sudden stop did not raise a question of fact about defendant’s negligence in this rear-end collision case:

… [T]he defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the accident, or whether the emergency doctrine applied to this case … . “[T]he emergency doctrine does not apply to typical accidents involving rear-end collisions because trailing drivers are required to leave a reasonable distance between their vehicles and vehicles ahead” … . Although the defendants submitted a police accident report and the affidavit of Miller, both of which contained statements that the plaintiffs’ vehicle made a sudden stop behind a vehicle that came to an abrupt stop in front of them, Miller testified at his deposition that he could not recall the speed at which he was traveling, or when he first observed the plaintiffs’ vehicle, prior to the accident. “Without such evidence, the assertion that the [plaintiffs’] vehicle came to a sudden stop was insufficient to rebut the inference that [Miller] was negligent” … , and failed to demonstrate that the emergency doctrine was applicable to this case … . Capuozzo v Miller, 2020 NY Slip Op 07026, Second Dept 11-25-20

 

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MUNICIPALITIES AND FIRE DEPARTMENTS PROTECTED BY GOVERNMENTAL IMMUNITY IN THIS WATER- DAMAGE LAWSUIT STEMMING FROM EXTINGUISHING A FIRE; NUISANCE AND TRESPASS ALSO PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the negligence, nuisance and trespass action against the municipalities and the municipal fire departments were properly dismissed. A fire in defendant paper mill was probably the result of arson. In the course of putting out the fire, the fire department returned water to a canal using a deck gun which shot a stream of water over plaintiff’s building. Apparently water seeped into the building causing damage. The negligence cause of action was precluded by governmental immunity, the nuisance action was precluded by the lack of evidence of intent, and firefighters doing their jobs are not deemed trespassers. With regard to governmental immunity, the court wrote:

To address the claims against the fire department defendants first, even accepting that questions of fact exist as to whether they had a special relationship with plaintiff that would give rise to a claim for negligence … , they are nevertheless protected by the governmental immunity doctrine, which “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” … . Under the doctrine, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . There is no question that fire protection, and obtaining the water necessary to provide it, is a purely governmental function … . The key issue is therefore whether the fire department defendants’ purportedly negligent acts — choosing to use the deck gun and aim it in a direction that caused a rain to fall around the powerhouse — were discretionary in that they arose from “the exercise of reasoned judgment which could typically produce different acceptable results” … . Stevens & Thompson Paper Co. Inc. v Middle Falls Fire Dept., Inc., 2020 NY Slip Op 06996, Third Dept 11-25-20

 

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THE DRY BUT ALLEGEDLY SLIPPERY FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff alleged slipped on a dry but slippery floor:

Plaintiff testified that he slipped while working in the kitchen of a hotel, due to slippery flooring material that had just been installed. He stated that the floor was dry, but the flooring did not “grip,” and the layers were not properly installed. …

Absent competent evidence of a defect in the surface or some deviation from an applicable industry standard, liability is not imposed for a slippery floor … . Here, all of the experts stated that the flooring was at least in the “acceptable” range for slip resistance using industry standards. Moreover, plaintiff failed to present any evidence raising an issue of fact concerning improper installation or defective materials. Evidence of subsequent repairs or remediation is not admissible, unless there is an issue of control or an alleged defect in manufacture, not present here, and does not create an issue of fact as to prior negligence … . Arias v Stonhard, Inc., 2020 NY Slip Op 06944, First Dept 11-24-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact:

… [P]laintiff alleges that due to defendants’ negligence in diagnosing a skull fracture during an emergency room visit …, he sustained permanent and disabling neurological damage. …

Defendants’ expert opined that defendants did not depart from good and accepted practice by not ordering a CT head scan based on plaintiff’s initial clinical presentation in the emergency room. Defendants’ expert opined that plaintiff did not meet any of the criteria of the Canadian CT Head Rule (CCHR) used in the emergency room setting to determine which head injuries warrant CT imaging.  [P]laintiff did not exhibit any neurological deficits, such as loss of consciousness, vomiting, headaches, or dizziness, and he was alert and mobile.

In opposition, plaintiff submitted a conclusory affirmation that failed to specifically address the criteria relied upon by defendants’ expert in opining that plaintiff’s presentation did not warrant further investigation of a possible skull fracture.

Rather, without support from the medical record, plaintiff’s expert opined that the injury occurred in the pterion region of the skull, and, moreover, defendants negligently failed to elicit the “mechanism” of injury, i.e., that plaintiff was stabbed, which, when taken together with the location of the wound, would have indicated a likelihood that plaintiff had sustained a skull fracture. Plaintiff’s expert further opined, without elaboration, that plaintiff must have had evidence of injury during his initial ER visit since he was diagnosed with a days-old skull fracture less than a week later, and therefore defendants’ examination of him was cursory and deficient. These opinions, which rely on hindsight and are both speculative and conclusory, are insufficient to raise a triable issue of fact … . Cruz v New York City Health & Hosps. Corp., 2020 NY Slip Op 06946, First Dept 11-24-20

 

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PLAINTIFF’S DECEDENT FELL FROM AN UNGUARDED TOP BUNK AT A TEMPORARY SHELTER AND WAS RENDERED A QUADRIPLEGIC; THE SHELTER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; THERE WAS EVIDENCE THE SHELTER HAD INSTALLED GUARDRAILS ON OTHER TOP BUNKS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the negligence cause of action against defendant temporary housing shelter (CAFLF) should not have been dismissed. Plaintiff’s decedent (Philips) was rendered a quadriplegic and later died after falling from an unguarded top bunk. The shelter’s maintenance director testified it was dangerous for anyone to sleep in an unguarded top bunk and that the shelter had installed guardrails on other top bunks:

Summary judgment should be denied to CAFLF. An unguarded top bunk is not an inherently dangerous instrumentality, and a property owner or manager has no duty to install guardrails absent notice that an unguarded top bunk presents a dangerous condition. However, Ida Morris, Philip’s late wife, testified that she and Philip had complained to a CAFLF social worker about the lack of guardrails before Philip’s accident. CAFLF’s maintenance director testified that he and his staff knew it was dangerous for anyone to sleep in an unguarded top bunk and that they installed guardrails on top bunks that were going to be slept in. While the breach of an internal policy that transcends the duty of reasonable care cannot be considered evidence of negligence … , this testimony raises an issue of fact as to whether CAFLF knew or should have known that the unguarded top bunk from which Philip fell was dangerous and, if so, whether CAFLF breached its duty to exercise reasonable care by failing to install a guardrail on the top bunk before Philip’s accident. Slaughter v City of New York, 2020 NY Slip Op 06972, First Dept 11-24-20

 

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DEFENDANT CLAIMED IN HIS DEPOSITION HE COULDN’T STOP AT THE RED LIGHT BECAUSE THE FLOOR MAT HAD ROLLED UP UNDER THE BRAKE PEDAL; PLAINTIFF SUBMITTED THE DEPOSITION AS PART OF PLAINTIFF’S SUMMARY JUDGMENT MOTION; THE MAJORITY HELD THE DEPOSITION WAS HEARSAY AND THEREFORE COULD NOT DEFEAT SUMMARY JUDGMENT; TWO DISSENTERS ARGUED THE USUAL HEARSAY RULES DID NOT APPLY BECAUSE THE DEPOSITION WAS SUBMITTED BY PLAINTIFF (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the plaintiff’s motion for summary judgment in this intersection traffic accident was properly granted. The defendant, in his deposition, claimed he was unable to stop at the red light because the floor mat had rolled up under the brake pedal. The plaintiff submitted defendant’s deposition testimony as part of plaintiff’s summary judgment motion. The majority considered defendant’s testimony hearsay and therefore insufficient to defeat summary judgment. The dissenters argued the hearsay rule did not apply because plaintiff submitted the deposition and thereby raised triable issues of fact, or, in the alternative, waived any objection to the hearsay:

Plaintiff met his initial burden on the motion of establishing as a matter of law that defendant was negligent in his operation of the vehicle inasmuch as defendant failed to stop at a red light … . Contrary to defendant’s contention, he failed to raise an issue of fact whether the emergency doctrine applies here … . The emergency doctrine provides that, “when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the [driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . However, “[t]he emergency doctrine is only applicable when a party is confronted by [a] sudden, unforeseeable occurrence not of their own making” … . Stated differently, “it is settled law that the emergency doctrine has no application where . . . the party seeking to invoke it has created or contributed to the emergency” … . Further, although hearsay evidence may be considered in opposition to a motion for summary judgment, it is not by itself sufficient to defeat such a motion … . Here, defendant testified at his deposition that, at the time of the accident, he was not sure why he could not apply his brakes. He learned after the accident from a body shop mechanic that “[t]he floor pad was rolled up underneath the brake pedal.” He also testified that the floor mat sliding underneath his brakes was “the only reason [he could] think of” for his inability to brake. In view of that deposition testimony, we conclude that defendant’s reliance on the emergency doctrine was based solely on hearsay and speculation and thus did not raise a triable issue of fact whether that doctrine applies. The record includes no affidavit or deposition testimony from defendant’s mechanic. Watson v Peschel, 2020 NY Slip Op 06880, Fourth Dept 11-20-20

 

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THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CROSS EXAMINE THE DEFENSE EXPERT USING DECEDENT’S HUSBAND’S DEPOSITION IN THIS NEGLIGENCE AND PUBLIC-HEALTH-LAW VIOLATION CASE; THE DECEDENT’S HUSBAND, A NONPARTY, WAS AVAILABLE TO TESTIFY; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff should not have been allowed to cross-examine the defense expert using the deposition of decedent’s husband, who was available to testify. The defense motion to set aside the verdict in this negligence and Public-Health-Law violation case should have been granted:

Supreme Court erred in allowing plaintiff to cross-examine a defense expert using the deposition of decedent’s husband, a nonparty. CPLR 3117 limits the use of a nonparty’s deposition at trial to either the impeachment of that nonparty as a witness … , or for “any purpose against any other party” in case of the nonparty’s unavailability at trial … . Here, plaintiff was not using the husband’s deposition testimony to impeach the husband’s own trial testimony, and the husband was available and testified at trial. Contrary to plaintiff’s assertion, CPLR 4515 does not permit a party to cross-examine an expert with all the materials that the expert reviewed in formulating his or her opinion, regardless of the independent admissibility of those materials … . “That statute provides only that an expert witness may on cross-examination ‘be required to specify the data and other criteria supporting the opinion’ ” … . Because the testimony pertained directly to the central issue to be resolved by the jury, i.e., the quality of care that decedent received, the error was not harmless … . Williams v Ridge View Manor, LLC, 2020 NY Slip Op 06894, Fourth Dept 11-20-20

 

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THE DEFENDANT EMPLOYEE WAS ON HIS WAY HOME FROM A CORPORATE MEETING HELD BY HIS EMPLOYER WHEN THE CAR ACCIDENT HAPPENED; THE EMPLOYER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT BECAUSE THE DRIVER WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant driver, Brownlee, was not acting within the scope of his employment, when the car accident occurred. Brownlee was on his way home from a meeting held by his employer, Stellar:

… [I]t is undisputed that the collision occurred while Brownlee was driving home from a corporate meeting held by Stellar at its headquarters in Canada. Evidence submitted by Stellar on its motion established that the corporate meeting had ended and that Brownlee had been released for the day at the time of the collision. Although Brownlee testified at his deposition that he believed that he had intended to stop at Stellar’s facility in Pennsylvania before returning home, once he received permission to leave the corporate meeting, he was no longer acting in furtherance of any duty that he owed to Stellar and was no longer under Stellar’s control … . Indeed, Brownlee did not testify that Stellar had directed him to stop at the Pennsylvania facility or that Stellar had ordered him to perform any other act once the meeting had ended. The fact that the corporate meeting was held at a location other than Brownlee’s typical place of work does not alter our analysis, nor does the fact that Brownlee was reimbursed for travel expenses … . Wood v Brownlee, 2020 NY Slip Op 06887, Fourth Dept 11-20-20

 

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SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO THE CLUB AND THE SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE CLUB COULD BE HELD RESPONSIBLE FOR CRIMINAL ACTIVITY IN THE STREET IN FRONT OF THE CLUB, WHETHER THE CLUB WAS THE SPECIAL EMPLOYER OF THE BOUNCERS AND THEREFORE SUBJECT TO VICARIOUS LIABILITY, AND WHETHER THERE WAS DRAM SHOP ACT LIABILITY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendant club (Sin City) and security company (Emissary) were not entitled to summary judgment in this third-party assault case. The facts are not described, but apparently plaintiffs were assaulted on the street in front of the club. There was a question of fact whether Sin City was a special employer and therefore vicariously liable for the actions of Emissary’s bouncers. The court noted, with respect to the Dram Shop Act (General Obligations Law 11-101) cause of action, the defendants did not demonstrate the assailants were not served alcohol while visibly intoxicated and did not demonstrate the sale of alcohol to the assailants had no connection to the assault:

Issues of fact remain as to defendants’ control of the street in front of the club, where plaintiffs’ assault occurred … ; whether defendants could or should have foreseen plaintiffs’ assault, given not only the events that transpired in the club prior to the assault … , but also the acts of violent or criminal conduct at the club predating plaintiffs’ assault … and, whether Sin City was the special employer, and is therefore vicariously liable for the acts and omissions, of Emissary’s bouncers, who provided security for Sin City on the night in question and allegedly assaulted the plaintiffs … . Ballard v Sin City Entertainment Corp., 2020 NY Slip Op 06842, First Dept 11-19-20

 

PLAINTIFF, WHO HAD PASSED OUT AT A CONCERT, REFUSED ASSISTANCE IN WALKING TO THE BACK OF THE THEATER SO THE EMERGENCY MEDICAL TECHNICIAN COULD CHECK HIS BLOOD PRESSURE AND PULSE; WHEN HE ATTEMPTED TO WALK TO THE BACK OF THE THEATER HE PASSED OUT AGAIN AND FELL, HIS FACE HITTING THE FLOOR; THE DEFENDANTS DID NOT HAVE A DUTY TO ASSIST PLAINTIFF AFTER HE REFUSED THEIR HELP AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the causes of action against the security company, Beacon, and the EMT provider, Transcare, should have been dismissed. Plaintiff passed out in his seat at a concert and defendants responded. The medical technician found that plaintiff was fully conscious and alert. Because the music was so loud the medical technician asked plaintiff to go to the back of the theater to check his blood pressure and pulse. Plaintiff was offered assistance in walking but he refused. He passed out again and fell with his face hitting the floor:

Any duty Beacon or Transcare owed to plaintiff to assist him in exiting the theater terminated when he refused such assistance. It is well settled that a competent adult has the right to determine the course of his or her own medical treatment, including declining treatment … . Plaintiff does not dispute that he refused assistance in standing or ambulating. Further, the testimony was that the EMT technician assessed plaintiff as alert and oriented as he left his seat to exit the theater. Given this, the complaint should have been dismissed in its entirety as to defendants Beacon and Transcare … . Fornabaio v Beacon Broadway Co., LLC, 2020 NY Slip Op 06853, First Dept 11-19-20

 

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