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CAUSE OF THE SLIP AND FALL WAS NOT BASED UPON PURE SPECULATION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ motion for summary judgment in this slip and fall case should not have been granted. The cause of the fall was not based upon pure speculation. Plaintiff fell stepping out of a bath tub at a hotel:

… [D]efendants submitted plaintiff’s deposition testimony, which, when viewed in the light most favorable to plaintiff and giving her the benefit of every reasonable inference … , establishes that plaintiff believed that the alleged dangerous or defective configuration or installation of the tub caused her to fall and sustain injuries. In addition, defendants failed to establish in support of their motion the absence of a dangerous or defective condition, and thus they were not entitled to summary judgment dismissing the complaint on that ground either … . We agree with defendants, however, that the court properly granted their motion to the extent that plaintiff alleged that they were negligent in failing to warn of dangerous and defective conditions. Defendants met their initial burden of establishing that any dangerous or defective condition was open and obvious, and plaintiff failed to raise a triable issue of fact … . DelRosario v Liverpool Lodging, LLC, 2019 NY Slip Op 01986, Fourth Dept 3-15-19

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NO LONGER NEED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT (FIRST DEPT).

The First Department, reversing Supreme Court, noted the plaintiff in a traffic accident case no longer has to demonstrate freedom from comparative fault to warrant summary judgment:

Plaintiff made a prima facie showing of negligence on the part of defendants by submitting an affidavit stating that as she was driving through the intersection she noticed that defendant driver failed to stop at the stop sign when plaintiff had the right of way (see Vehicle and Traffic Law § 1142[a]). Plaintiff was not required to demonstrate her own freedom from comparative negligence to be entitled to summary judgment as to defendants’ liability … . Garcia v McCrea, 2019 NY Slip Op 01842, First Dept 3-14-19

 

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FAILURE TO PROVIDE SEATBELTS IN A TAXICAB VIOLATES THE VEHICLE AND TRAFFIC LAW AND IS NEGLIGENCE AS A MATTER OF LAW (FIRST DEPT).

The First Department noted that the failure to provide seatbelts in  taxicab violates the Vehicle and Traffic Law and constitutes negligence:

The failure to provide seatbelts in a taxicab is a violation of Vehicle and Traffic Law § 383, and constitutes negligence as a matter of law … . Where an injured party fails to wear an available seatbelt, such failure would go to damages, not liability … . That is not the case when the vehicle owner fails to provide seatbelts in the first instance … . Grant v AAIJ African Mkt. Corp., 2019 NY Slip Op 01823, First Dept 3-14-19

 

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THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL CALL COULD NOT BE IDENTIFIED, THE LIGHTER BURDEN OF PROOF PURSUANT TO THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted because the cause of plaintiff’s decedent’s fall could not be identified. The Noseworthy lighter burden of proof did not apply. Although plaintiff’s expert identified defects in the area where plaintiff’s decedent fell, none of the defects were demonstrated to have caused the fall:

Contrary to the plaintiff’s contention, the Noseworthy doctrine does not apply to the circumstances of this case, since the defendants’ knowledge concerning the cause of the decedent’s accident is no greater than that of the plaintiff … . Even accepting the defects identified in the plaintiff’s expert’s affidavit, the plaintiff failed to raise a triable issue of fact as to whether the decedent’s fall was proximately caused by those allegedly unsafe conditions … . ” Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation'” … . Perrelli v Evangelista, 2019 NY Slip Op 01807, Second Dept 3-13-19

 

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MERELY QUESTIONING THE CREDIBILITY OF PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER STAIRWAY SLIP AND FALL DID NOT RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant’s motion for summary judgment in this slip and fall case should not have been granted. Defendant did not submit evidence refuting plaintiff’s explanation of the cause of her fall (a hole in the stairs). Merely questioning the credibility of the plaintiff did not raise a question of fact:

Plaintiff was injured when, while walking down a staircase in defendant’s building, her foot struck a hole in the stairs, causing her to fall from the third floor to the second floor. Defendant failed to establish entitlement to judgment as a matter of law by submitting evidence refuting plaintiff’s testimony identifying the cause of her fall … . Defendant’s challenge to the credibility of plaintiff’s evidence is a matter for resolution by a trier of fact … . Morales v 320 E. 176th St., LLC, 2019 NY Slip Op 01711, First Dept 3-12-19

 

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QUESTION OF FACT WHETHER GROSS NEGLIGENCE MIGHT OVERCOME A CONTRACTUAL LIMITATION ON LIABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether gross negligence might overcome a contractual limitation on liability. Here a bid on a highway project turned out to be more than $80 million short, which resulted in the withdrawal of the bid. The project was for a toll road, the toll to be paid to the builder of the road. The bid was low because the date of the beginning of construction, rather than the end of construction, was used to calculate the income from the toll. Gross negligence factors included, the firing of key personnel overseeing the creation of the bid, failure to follow company policy in reviewing the bid, and departure from industry standards:

It is well-settled that contractual limitations on liability are generally enforceable … . However, “public policy forbids a party from attempting to avoid liability for damages caused by grossly negligent conduct” … . Thus, a gross negligence claim will be sustained where a party’s conduct “evinces a reckless disregard for the rights of others or smacks’ of intentional wrongdoing” … . S.A. De Obras y Servicios, COPASA v Bank of Nova Scotia, 2019 NY Slip Op 01706, First Dept 5-12-19

 

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WET CONDITION ON THE STAIRS IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this stairway slip and fall case should have been granted. Defendants demonstrated they did not have constructive notice of a wet condition:

Defendants … relied on plaintiff’s testimony that, in the 15 minutes before his accident, he had gone up and down the stairs without incident and did not notice any liquid or water on the steps, demonstrating that the alleged dangerous condition was not visible and apparent for a sufficient time before the accident to provide constructive notice … . Although plaintiff did testify that he saw a woman with a mop coming down the stairs as he was going upstairs the first time, implying that she could have caused the wet condition, he acknowledged that the surveillance video did not show any woman with a mop. Furthermore, defendants’ witnesses stated that the daytime worker for defendant United Building Maintenance Associates, Inc. was only responsible for cleaning the area near the ATM machines on the first floor and never mopped, and that the staircase was cleaned by night personnel. Fernandez v JPMorgan Chase Bank, NA, 2019 NY Slip Op 01645, First Dept 5-7-19

 

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ARCHITECT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, THE FACT THAT ANOTHER PARTY PLACED THE ANGLE IRON WHICH INJURED PLAINTIFF IN AN EFFORT TO FIX AN ALLEGED DEFECT IN THE DESIGN OF THE SUBJECT BOILER SYSTEM DID NOT CONSTITUTE A SUPERSEDING CAUSE OF PLAINTIFF’S INJURY AS A MATTER OF LAW (FIRST DEPT).

The First Department determined defendant architect’s (Cannon’s) motion for summary judgment in this personal injury case was properly denied. Plaintiff was injured when an angle iron used to support part of a boiler system struck him on the head. Cannon argued it did not have any responsibility for the use of the angle iron as a support, which was placed there by a third party. However Cannon approved the boiler system and therefore may have been responsible for the defect which resulted in the need for the angle-iron support. Therefore the placement of the angle iron may not have been a superseding cause of the injury:

… [A]ccording to Cannon, even if it was negligent in its review of the component list or in its inspections of the ongoing work, any such negligence was not a proximate cause of the accident, because the installation of angle irons, which it never approved, and the failure of DASNY [building owner] and Martin [HVAC contractor} to heed its remediation recommendation for eight months before the accident occurred were intervening superseding causes.

“When a question of proximate cause involves an intervening act, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence'” … . “The mere fact that other persons share some responsibility for plaintiff’s harm does not absolve defendant from liability because there may be more than one proximate cause of an injury'” … . Here, a jury could reasonably conclude that the effort to reinforce the cleanout port covers with angle irons was a normal and foreseeable consequence of the alleged inadequacy of the covers, which Cannon either approved or failed to detect, and which Cannon’s principal acknowledged were not the proper covers. Thus, under the circumstances presented in this case, there remain triable issues of fact as to whether, inter alia, the use of the angle iron bracing, as well as DASNY and Martin’s failure to replace the covers, despite notice from Cannon, constituted superseding causes of plaintiff’s injuries  … . Demetro v Dormitory Auth. of the State of N.Y., 2019 NY Slip Op 01642, First Dept 3-7-19

 

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PLAYGROUND EQUIPMENT ON WHICH PLAINTIFF’S SON WAS INJURED, ACCORDING TO EXPERT EVIDENCE, WAS IN COMPLIANCE WITH APPLICABLE GUIDELINES AND STANDARDS, WAS PROPERLY MAINTAINED AND WAS NONHAZARDOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this playground equipment injury case should have been granted. Plaintiff’s son was injured when his leg was caught in a gap between two platforms:

… [T]he defendants submitted, inter alia, an expert affidavit, which established, prima facie, that the playground apparatus was not in violation of any relevant statutes or safety guidelines, that it was maintained in a reasonably safe condition, that the platforms were nonhazardous, and that the gaps between the platforms did not violate any applicable guidelines or standards … . In opposition, the plaintiff failed to raise a triable issue of fact. Valenzuela v Metro Motel, LLC, 2019 NY Slip Op 01639, Second Dept 3-6-19

 

DEFENDANT DID NOT SHOW A LACK OF CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Defendant did not demonstrate the absence of constructive notice:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case … .

Here, the defendant failed to meet its initial burden as the movant … . The defendant failed to affirmatively demonstrate that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall … . Seedat v Capital One Bank, 2019 NY Slip Op 01632, Second Dept 3-6-19

 

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