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THE COMPLAINT ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE (RESPONDEAT SUPERIOR) FOR THE NEGLIGENT ACTIONS OF A CORONER SHOULD NOT HAVE BEEN DISMISSED, THE CORONER ALLEGEDLY TRANSFERRED A PORTION OF THE REMAINS OF PLAINTIFF’S SON TO A VOLUNTEER FIRE DEPARTMENT FOR THE TRAINING OF CADAVER DOGS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint against the county, based upon the alleged negligence of a county employee, should not have been dismissed. It was alleged that a coroner (Jackman) employed by the county transferred human remains (plaintiff’s son) to a volunteer fire company for the purpose of train cadaver dogs:

Although it is generally a question for the jury whether an employee is acting within the scope of employment … , an employer is not liable as a matter of law “if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business’ “… .

Here, there is evidence that Jackman’s decision to transfer a portion of the remains of plaintiffs’ son (decedent) to defendant Vincent Salerno, the Fire Chief of Cambria, was driven by a work-related purpose, rather than Jackman’s own personal interests … . Furthermore, there are issues of fact whether it was foreseeable that Jackman, in performing his obligations as a county coroner, might negligently remove, transport, or even transfer decedent’s remains. “[F]or an employee to be regarded as acting within the scope of his [or her] employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected” … . An employee’s “[m]ere . . . deviation from the line of . . . duty does not relieve [the] employer of responsibility” … . …

… [W]e reject plaintiffs’ contention that the court erred in granting Cambria’s motion. The unrefuted evidence showed that Cambria’s employee, Salerno, had only personal motives for requesting decedent’s remains from Jackman, i.e., to further his own interest in training dogs to locate cadavers … . Salerno had no official duties that required him to train cadaver dogs or obtain human remains to train such dogs. Dunn v County of Niagara, 2019 NY Slip Op 04530, Fourth Dept 6-7-19

 

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DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD EXPIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendant’s failed to demonstrate when the lead-paint-exposure cause of action accrued. Therefore the motion for summary judgment on the ground that the statute of limitations had passed should not have been granted:

In moving to dismiss the complaint on statute of limitations grounds, each defendant had “the initial burden of establishing prima facie that the time in which to sue ha[d] expired . . . and thus was required to establish, inter alia, when the plaintiff[s’] cause of action accrued” …  Here, neither defendant established the relevant accrual date of plaintiffs’ claims for injury caused by the latent effects of lead paint exposure and, in the absence of such evidence, neither defendant made a prima facie showing that the applicable limitations period had expired on those claims … . Supreme Court thus erred in granting defendants’ respective motions to that extent. We note that, at oral argument in these appeals, plaintiffs conceded that their claims for patent injuries arising from such exposure were properly dismissed as time-barred. Chaplin v Tompkins, 2019 NY Slip Op 04562, Fourth Dept 6-7-19

 

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PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE SO HIS FALL FROM A LADDER WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1), A MUNICIPALITY’S MAINTENANCE OF LIGHT POLES IS A PROPRIETARY FUNCTION TO WHICH THE DOCTRINE OF IMMUNITY DOES NOT APPLY, THE MUNICIPALITY’S ‘LACK OF WRITTEN NOTICE’ DEFENSE COULD NOT BE RAISED FOR THE FIRST TIME ON APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was engaged in routine maintenance when he was injured, which is not actionable pursuant to Labor Law 240 (1). The Third Department further determined that a municipality’s maintenance of light poles is a proprietary function subject to ordinary standards of negligence which is not protected by the doctrine of governmental immunity. The court further held that the “lack of written notice” defense was not a question of law which the municipality could raise for the first time on appeal. The plaintiff was repairing burned out lights which were on strands of decorative lights attached to a light pole. The strands of decorative lights were not fixtures within the meaning of the Labor Law:

… Merchants [a non-profit which had wrapped decorative lights around city light poles] hired plaintiff, as an independent contractor, to replace light strands located on 36 light poles because many of the light bulbs had become inoperable. Plaintiff was injured when he fell from a 16-foot aluminum-rung extension ladder when the pole that it was leaning on suddenly fell over. …

… [R]replacement of the light strands, which was necessary because numerous bulbs had burned out, constituted routine maintenance that is outside the protection of Labor Law § 240 (1) … . …

… [A]lthough replacement of a light fixture on a lighting pole is a repair within the protection of Labor Law § 240 (1) … , under the facts herein, the light strands cannot be considered a fixture. …

Although a municipality may enjoy qualified immunity from liability arising from highway planning and design decisions … , that doctrine does not shield a municipality from liability arising from negligent maintenance. Gutkaiss v Delaware Ave. Merchants Group, Inc., 2019 NY Slip Op 04527, Third Dept 6-6-19

 

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THE DEFENDANTS’ PAPERS, WHICH INCLUDED PLAINTIFF’S AND DEFENDANT SANTIAGO’S DEPOSITION TESTIMONY, DEMONSTRATED THERE WERE QUESTIONS OF FACT ABOUT THE EXISTENCE OF ICE ON THE DRIVEWAY AND SANTIAGO’S NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants, the property owners, were not entitled to summary judgment in this slip and fall case. The defendants submitted plaintiff’s deposition testimony that the ice formed sometime between the middle of the day on the 16th and 7 a.m. on the 17th when he fell. The property owner, Santiago, testified he saw no ice on the afternoon of the 16th and saw no ice when he returned to the property at 11 a.m. on the 17th. The defendants’ papers, therefore, demonstrated there were questions of fact:

In support of their motion, the defendants submitted the transcript of the deposition testimony of the plaintiff, who testified that on February 16, 2016, precipitation had fallen, that it stopped sometime after he picked up his children at their school at noon, that when he returned to the subject property, the driveway was not icy, and that the neighbor whom the defendants had retained to plow the driveway had done so after the precipitation stopped but did not apply any salt. The plaintiff also testified that, on February 17, 2016, at approximately 7:00 a.m., he slipped and fell on thick ice that was cloudy and dirty in appearance and which covered the entire driveway. He further testified that the ice started forming on February 16, 2016, either sometime in the middle of the day, or sometime between 9:00 p.m. and 7:00 a.m. the next day.

The defendants also submitted the transcript of the deposition testimony of the defendant Christian Santiago, who testified that the tenants did not have any responsibilities with respect to snow or ice removal from the driveway. He also testified that he visited the subject property to inspect ongoing renovation work in one of the apartments in the morning or early afternoon of February 16, 2016, that it was not snowing or raining at that time, and that he did not observe any ice on the driveway. Santiago further testified that, when he returned to the property the following day, at approximately 11:00 a.m. or noon, he observed a snowbank measuring anywhere from four-to-five feet or six-to-seven feet high at the end of the driveway created by the plow the day before, that he did not see any ice on the driveway, and that he noticed that there was salt on the concrete landing but not on the driveway. …

The defendants failed to submit any meterological data for either February 16 or 17, 2016, or evidence of the condition of the driveway subsequent to it being plowed by the neighbor or within a reasonable time prior to the incident … .

… [T]he evidence submitted by the defendants showed the existence of triable issues of fact and did not suffice to establish a prima facie case for summary judgment … . Ghent v Santiago, 2019 NY Slip Op 04362, Second Dept 6-5-19

 

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THE GYM TEACHER TOLD THE STUDENTS TO RUN AROUND THE PERIMETER OF THE BUILDING; STUDENT PLAINTIFF TRIPPED AND FELL OVER A CHAIN WHICH, SHE ALLEGED, OTHER STUDENTS WERE JUMPING OVER AS THEY RAN; THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION SLIP AND FALL CASE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined that the school district’s motion for summary judgment in this negligent supervision action was properly denied. The gym teacher told the students to run around the perimeter of the building and, according to the student-plaintiff, some students were jumping over a chain. The student-plaintiff attempted to jump over the chain when she tripped and fell:

The infant plaintiff testified at her deposition that the gym teacher did not instruct her not to jump over anything, and that approximately 20 students jumped over the chain before she attempted to do so. She initially did not know what the other students were jumping over, and she realized that they were jumping over the chain when she was approximately five feet away from it. The infant plaintiff was still jogging at that point. She did not see the chain until she was very close to it because the chain “blend[ed] in.” The gym teacher testified at his deposition that the students usually ran on a grassy area around the perimeter of a field. On the day of the accident, however, he instructed the infant plaintiff and her classmates to run around the perimeter of the school building because the grassy area was too wet and muddy. He had never before instructed that class to run around the perimeter of the building. The gym teacher also testified that he instructed the students to avoid the chain, that he ran behind the students, and that, when he reached the chain, he observed students running around it. …

… [T]the school district failed to demonstrate, prima facie, that it provided adequate supervision, or that a lack of adequate supervision was not a proximate cause of the infant plaintiff’s injuries … . B.T. v Bethpage Union Free Sch. Dist., 2019 NY Slip Op 04442, Second Dept 6-5-19

 

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THE MOVEMENT OF THE COMMON CARRIER’S VAN WAS NOT UNUSUAL OR VIOLENT, THE PERSONAL INJURY ACTION BROUGHT BY A PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined that the common carrier’s motion for summary judgment in this personal injury case should have been granted. Plaintiff alleged injury caused when defendant’s van hit an expansion joint in the highway:

“To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must establish that the movement consisted of a jerk or lurch that was unusual [and] violent” … . There must be evidence that the movement of the vehicle was “of a different class than the jerks and jolts commonly experienced in city bus travel,'” and, therefore, attributable to the negligence of defendant … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law through its submission of the deposition testimony of the plaintiff, who testified that the van in which he was a passenger was constantly jostled up and down, and that when the van hit one of the expansion joints in the highway, he heard something in his neck snap. The plaintiff admitted that his body was not physically moving up and down, and that the bumps and jolts of the van were only putting pressure on his lower back. Thus, the evidence established that the movement of the van at issue was not unusual and violent … . Petrie v Golden Touch Transp. of NY, Inc., 2019 NY Slip Op 04431, Second Dept 6-5-19

 

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DEFENDANT DRIVER’S CLAIM HE COULDN’T STOP BECAUSE HIS CAR SKIDDED ON WET METAL GRATING DID NOT ESTABLISH THE REAR-END COLLISION WAS UNAVOIDABLE, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiffs were entitled to summary judgment in this rear-end collision case. The defendants’ claim that the defendant driver, Flippen, couldn’t stop because the skidded on wet metal grating did not raise a question of fact:

“[A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability, as the evidence submitted in support of their motion demonstrated that the injured plaintiff’s vehicle was stopped when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact. The defendants’ contention that Flippen applied his brakes but was unable to stop because his vehicle skidded on a wet metal grating on the roadway was insufficient to rebut the inference of negligence arising from the rear-end collision because they failed to demonstrate that Flippen’s skid on known road conditions was unavoidable … . Morgan v Flippen, 2019 NY Slip Op 04377, Second Dept 6-5-19

 

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DISCOVERY OF PRIOR ASSAULTS IN THIS STUDENT ON STUDENT THIRD-PARTY ASSAULT CASE SHOULD NOT HAVE BEEN LIMITED TO PRIOR SEXUAL ASSAULTS AND PRIOR ASSAULTS BETWEEN THE TWO STUDENTS, ASSAULTS OF ANY KIND MAY HAVE PUT THE SCHOOL ON NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that discovery in this third-party assault (negligent supervision) case should not have been restricted to prior sexual assaults in the school and prior assaults between the alleged (student) perpetrator and the (student) plaintiff:

We disagree with the Supreme Court’s determination that the defendants were only required to provide records pertaining to “assaults of a sexual nature” and “all assaults of any nature between” the infant plaintiff and the student alleged to have sexually assaulted the infant plaintiff. Evidence of prior assaults at the school, particularly any assaults in the stairwell where the subject incident occurred, may be sufficient to establish that the defendants had actual or constructive notice of conduct similar to the subject incident … . Moreover, evidence of any prior assaults perpetuated by the offending student against students other than the infant plaintiff may be sufficient to establish that the defendants had actual or constructive notice of the offending student’s dangerous propensities … . M.C. v City of New York, 2019 NY Slip Op 04372, Second Dept 6-5-19

 

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OUT-OF-POSSESSION LANDLORD COULD NOT HAVE FORESEEN THAT INFANT PLAINTIFF WOULD MOVE LOGS STACKED AT THE SIDE OF THE PROPERTY AND THEN FALL WHEN JUMPING FROM LOG TO LOG, INFANT PLAINTIFF CREATED THE DANGEROUS CONDITION AND ASSUMED THE RISK (FIRST DEPT). ​

The First Department determined the out-of-possession landlord’s motion for summary judgment in this slip and fall case was properly granted. Infant plaintiff (Deandre) had moved some logs from the side of the property and was jumping from log to log when he fell:

Defendant testified that he had had the tree cut down and the logs stacked along a property fence line several years earlier and had never seen the logs anywhere else on the property. Deandre testified that he and his friends had arranged the logs in a line and were jumping from log to log when he fell. The record shows that no one had complained to defendant, an out-of-possession landlord, about the logs before the accident, and Deandre testified that he had been playing on them for about 10 minutes when he fell.

Plaintiffs contend that it was foreseeable that children would move the logs. However, absent evidence of earlier incidents involving the logs or any complaint made to defendant about the logs, the possibility of children playing with them does not render the presence of the logs in the backyard foreseeably dangerous … .

Plaintiffs also failed to raise an issue of fact as to whether Deandre could fully appreciate the risks of jumping onto logs. As Deandre himself created the danger by setting up and jumping on the logs while playing with his friends, plaintiffs cannot show that he was faced with a risk that was unassumed, S.-B. v Radincic, 2019 NY Slip Op 04324, First Dept 6-4-19

 

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DEFENDANT’S SUBCONTRACTOR USED A PAINT STRIPPING PRODUCT DURING AN OFFICE BUILDING RENOVATION, PLAINTIFF, AN EVENING OFFICE CLEANER, ALLEGED INJURY FROM BREATHING TOXIC FUMES, THERE IS EVIDENCE DEFENDANT HAD A DUTY TO WARN, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this toxic tort case was properly denied. Plaintiff, an evening cleaner in an office building, allege she was injured by inhaling toxic fumes from a paint stripping product used by a defendant’s subcontractor (Island Painting):

Defendant failed to establish prima facie that it did not have actual or constructive notice of the alleged dangerous condition of the premises in time to take corrective measures … . Defendant submitted no evidence with respect to notice. However, there is evidence in the record that defendant had superintendents on site who oversaw the subcontractors’ work and that defendant had a duty to notify and warn the building owner and its occupants of hazardous work undertaken on the project site so as to safeguard the building’s occupants against exposure to such hazards. Thus, issues of fact exist as to whether defendant knew of the scheduled use of the paint stripper and of the product’s toxicity and yet failed to warn the building owner and occupants to prevent harm to them. These issues of fact as to negligence also preclude summary judgment in defendant’s favor on its claim for contractual indemnification by Island Painting … . Arias v Recife Realty Co., N.V., 2019 NY Slip Op 04269, First Dept 5-30-19

 

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