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INFANT PLAINTIFF WAS ALLEGEDLY SEXUALLY ABUSED BY ANOTHER STUDENT ON A PRIVATE BUS TAKING THE CHILD HOME FROM SCHOOL, CERTAIN NEGLIGENCE CAUSES OF ACTION AGAINST THE SCHOOL SURVIVED A PRE-ANSWER MOTION TO DISMISS, NEGLIGENT SUPERVISION, HIRING AND TRAINING CAUSES OF ACTION DISMISSED BECAUSE THE EMPLOYEES WERE ALLEGED TO HAVE BEEN ACTING WITHIN THE SCOPE OF EMPLOYMENT, TWO DISSENTING JUSTICES ARGUED THE STUDENT WAS NO LONGER IN THE CUSTODY AND CONTROL OF THE SCHOOL WHEN THE ABUSE OCCURRED ON THE BUS (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined certain negligence causes of action against the school properly survived a pre-answer motion to dismiss. Infant plaintiff, a special needs student, was allegedly sexually abused by another student on a private bus which provided transportation from the school under a contract with the city. All the justices agreed that the negligent hiring, supervision and training causes of action were properly dismissed because the relevant employees were alleged to have been acting within the scope of their employment, rendering the employer liable under the doctrine of respondeat superior. The dissenters argued that the child was no longer in the custody of the school when the child was on the private bus:

From the Dissent: “[A] school has a duty of care while children are in its physical custody or orbit of authority” (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 378 [1995]), which generally “does not extend beyond school premises”… . A school continues to have a duty of care to a child released from its physical custody or orbit of authority only under certain narrow circumstances, specifically, where the school “releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating” (Ernest v Red Cr. Cent. Sch. Dist., 93 NY2d 664, 672 [1999], rearg denied 93 NY2d 1042 [1999]… ).

In determining that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence, the majority effectively ignores the language in Ernest limiting a school’s duty of care to instances where “it releases a child without further supervision”… . Those circumstances do not exist here inasmuch as the child was released to the care of the bus company, which was then responsible for the “further supervision” of the child (id.). The majority also ignores the precedent set by Chainani, which states that a school that has “contracted-out responsibility for transportation” to a private bus company “cannot be held liable on a theory that the children were in [the school’s] physical custody at the time of injury” … . Therefore, defendants’ duty of care ended when the child was released to the physical custody of the bus company, especially where, as here, the bus company was hired by the City and had no contractual relationship with the School. Brown v First Student, Inc., 2018 NY Slip Op 08776, Fourth Dept 12-21-18

 

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PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE SNOW AND ICE CONDITION IN THIS SLIP AND FALL CASE, AND THE SNOW REMOVAL CONTRACTOR DID NOT OFFER ANY EVIDENCE OF THE STATE OF THE AREA WHERE PLAINTIFF FELL, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the property owner’s (PA’s) and snow removal contractor’s (Cristi’s) motions for summary judgment in this parking lot snow and ice slip and fall case. PA did not demonstrate a lack of constructive knowledge of the condition and Cristi offered no evidence of the actual state of the area where plaintiff fell:

To demonstrate lack of constructive notice, a defendant must “produc[e] evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned” … . PA failed to produce such evidence. PA’s representative testified that PA’s logs for the day of and day prior to the accident did not identify any icy conditions in the parking lot. However, he also admitted that it would not necessarily be documented in these logs (or elsewhere) if a PA employee noticed an icy condition. Moreover, he testified that checking for icy conditions was not the focus of PA’s inspections. …

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, there are exceptions to this rule, including where “the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm'” by “creat[ing] or exacerbat[ing]” a dangerous condition… . It is undisputed that Cristi performed snow removal and salting in the area of the accident and that it had a continuing obligation to inspect and maintain the area even after snow removal was complete, but it offered no evidence regarding the actual state of the area at issue prior to the accident. Its “silence with respect to the actual snow removal operations at issue” renders Cristi’s prima facie showing “patently insufficient” … . Barrett v Aero Snow Removal Corp., 2018 NY Slip Op 08753, First Dept 12-20-18

 

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IN THIS TRAFFIC ACCIDENT CASE, AN AFFIDAVIT FROM A LICENSED CLINICAL SOCIAL WORKER (LCSW) CONSTITUTED COMPETENT EVIDENCE PLAINTIFF SUFFERS FROM POST-TRAUMATIC STRESS DISORDER (PTSD), PTSD IS A ‘SERIOUS INJURY’ WITHIN THE MEANING OF INSURANCE LAW 5102 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined an affidavit from a licensed clinical social worker (LCSW) was competent evidence that plaintiff in this traffic accident case suffered from post-traumatic stress disorder (PTSD) which is recognized as a “serious injury” within the meaning of Insurance Law 5102 (d):

Under Education Law § 7701 (2), an LCSW can diagnose “mental, emotional, behavioral, addictive and developmental disorders and disabilities” and can administer and interpret tests of psychological functioning, create assessment-based treatment plans and provide “short-term and long-term psychotherapy and psychotherapeutic treatment.” These are functions comparable to those of a psychologist (see Education Law § 7601-a [1], [2]). For licensing purposes, an LCSW must “have at least three years full-time supervised postgraduate clinical social work experience in diagnosis, psychotherapy, and assessment-based treatment plans, or its part-time equivalent, obtained over a continuous period not to exceed six years, under the supervision . . . of a psychiatrist, a licensed psychologist, or [an LCSW] in a facility setting” … . Given the above, we conclude that an LCSW is competent to render an opinion as to whether a person has PTSD for purposes of establishing a serious injury under the Insurance Law. …

Iantorno [the LCSW] averred that she “personally witnessed physical anxiety exhibited by . . . Vergine [plaintiff]. This was visible to me and further validated diagnosis of PTSD.” Such clinical observations qualify as objective medical evidence for purposes of establishing a serious injury … . Iantorno opined that Vergine was significantly limited in her ability to drive and even distressed as a passenger, conditions that impacted her independence and imposed a significant limitation of her psychological function. We find that this submission presents an issue of fact as to whether Vergine sustained causally-related PTSD, constituting a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). Vergine v Phillips, 2018 NY Slip Op 08740, Third Dept 12-20-18

 

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DEFENDANT PROPERTY MANAGER AND DEFENDANT OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE ICE AND SNOW CONDITION WHERE PLAINTIFF FELL IN THIS STRIP MALL PARKING LOT SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this parking lot slip and fall case should not have been granted. The defendant Benderson managed the strip mall where the slip and fall occurred, and defendant Fitzgerald owned the property. The defendants did not demonstrate they did not have construction notice of the snow and ice condition:

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 neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . This burden cannot be satisfied merely by pointing out gaps in the plaintiff’s case, as the defendants did here… . The defendants failed to show what the accident site actually looked like within a reasonable time after the cessation of the prior snowstorm and what the accident site actually looked like within a reasonable time prior to the incident. The defendants also failed to submit any meteorological data to show that the alleged ice condition that caused the plaintiff to fall was not the product of a prior storm. Bronstein v Benderson Dev. Co., LLC, 2018 NY Slip Op 08625, Second Dept 12-19-18

 

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QUESTIONS OF FACT WHETHER THE EMPLOYER OF THE DRIVER WHO KILLED A BICYCLIST WHEN ATTEMPTING TO LEAVE THE EMPLOYER’S PREMISES IS LIABLE, QUESTIONS OF FACT WERE RAISED ABOUT (1) THE EMPLOYER’S SPECIAL USE OF THE AREA WHERE THE ACCIDENT OCCURRED, (2) A SPECIAL RELATIONSHIP WITH THE EMPLOYEE (MASTER-SERVANT) GIVING RISE TO A DUTY TO CONTROL THE EMPLOYEE, AND (3) PROXIMATE CAUSE (THIRD DEPT).

The Third Department, over a dissent, determined there were questions of fact whether the employer (BorgWarner) of the driver who killed a bicyclist (plaintiff’s decedent) while exiting the employer’s premises was liable. There was a question whether the employer exercised a special use of the area, whether the employer had a duty to control the conduct of the employee because of a special relationship (master-servant), and whether the employer’s acts or omissions constituted a proximate cause of the accident:

A finding of a special use arises where there is a modification to the public sidewalk, such as the installation of a driveway, or a variance of the sidewalk to allow for ingress and egress… , that was “constructed in a special manner for the benefit of the abutting owner or occupier” … . The owner must derive a “unique benefit unrelated to the public use” … . Contrary to BorgWarner’s claims that it uses Warren Road in the same manner as the general public, there was substantial evidence in the record, submitted by plaintiff, suggesting that the public roadway in question had been altered for the exclusive benefit of BorgWarner to facilitate its relocation. …

… [A] duty may be created to control the conduct of a person when a special relationship exists, such as master-servant … . Here, not only did BorgWarner control the flow of traffic from its private parking lot at the south exit via a control gate, but BorgWarner also placed a yield sign on BorgWarner South Drive for motorists entering the merge lane on Warren Road. Also, as an employer, BorgWarner had the opportunity to conduct training or communicate in some way to its employees to use due caution and follow traffic laws when using the south exit. In fact, BorgWarner did provide training programs, including obeying traffic signs, however, none were specific to the use of the south exit. This evidence raises a question of fact as to the extent of BorgWarner’s control over its employees and whether this control is sufficient to establish a duty… .Further, although it is true that, at the time of the accident, [the employee] had completed her shift and was going home, activity arguably outside the scope of her employment, exiting the facility was also “necessary or incidental to such employment,” and her actions were still controlled in part by the gate and signage installed by BorgWarner … . Giannelis v Borgwarner Morse Tec Inc., 2018 NY Slip Op 08593, Third Dept 12-13-18

 

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A BLOCKED TRACHEOSTOMY TUBE IS A FORESEEABLE EVENT FOR WHICH DEFENDANT ANESTHESIOLOGIST WAS TRAINED AND PREPARED, THEREFORE THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE EMERGENCY DOCTRINE, DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE ACTION REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial in this medical malpractice action, determined the jury should not have been charged on the emergency doctrine. Plaintiff’s decedent died after her tracheostomy tube became blocked. Because a blocked tracheostomy tube is a foreseeable condition, the emergency doctrine did not apply:

In the days after … surgery, Jones [plaintiff’s decedent] was improving and was out of bed and talking. On March 30, 2007, a nurse and respiratory therapist were removing a Passy-Muir valve (a device designed to allow a patient to speak with a tracheostomy tube in place) and met resistance while attempting to place an inner cannula into the tube. Jones began to experience shortness of breath. Despite attempts to suction the tube and ventilate Jones manually with an Ambu bag, Jones’s oxygen saturation levels continued to drop to the low 60s, and her level of consciousness rapidly decreased. Accordingly, Sher [defendant], an anesthesiologist, and Joann Noto, a physician assistant, were paged. * * *

… [W]e disagree with the Supreme Court’s determination to instruct the jury on the emergency doctrine. The emergency doctrine “has been reserved, in a medical context, to situations where a doctor is confronted by a sudden and unforeseen condition’ and is forced to undertake care under less than optimal circumstances,” and is inapplicable where the defendant physician was trained and prepared for the specific emergency … . Here, there is no dispute that it was foreseeable for secretions to block a tracheostomy tube and that Sher was qualified as an anesthesiologist to replace a blocked tracheostomy tube. Indeed, Sher admitted that, in his 30 years of experience, creating airways for patients is what anesthesiologists do. Further, Sher was advised by Noto that a mucus plug was blocking the tracheostomy tube which Sher was ultimately able to replace within seconds. Accordingly, there was no sudden and unforeseen condition for which Sher was not trained or prepared. Crayton v Sher, 2018 NY Slip Op 08461, Second Dept 12-12-18

 

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THE PRESUMPTION OF OWNERSHIP OF A VEHICLE CREATED BY THE CERTIFICATE OF TITLE CAN BE REBUTTED BY PROOF OF DOMINION AND CONTROL OVER THE VEHICLE, PLAINTIFF’S MOTION TO DISCOVER THE INSURER’S FILE IN THIS TRAFFIC ACCIDENT CASE TO DETERMINE WHETHER DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE VEHICLE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that evidence that defendant exercised dominion of control of the vehicle would rebut the presumption of ownership created by a certificate of title. Here the tile was in defendant’s wife’s name and she was driving at the time of the traffic accident. Plaintiff sought to discover the insurer’s file pursuant to CPLR 3124. Supreme Court should have granted the motion:

“A certificate of title is prima facie evidence of ownership” (… Vehicle and Traffic Law §§ 128, 2101[g]; 2108[c]…) . However, this presumption may be rebutted by evidence demonstrating that another individual owns the subject vehicle… . This may include evidence that a person other than the title holder exercised “dominion and control” over the vehicle …  .

Here, documents from the insurer concerning the vehicle and the accident are material and relevant to the issue of whether the defendant exercised dominion and control over the vehicle … . Accordingly, the Supreme Court should have granted the plaintiff’s motion to compel the defendant to provide an executed authorization for documents in the insurer’s possession concerning the vehicle and the accident … . ​Portillo v Carlson, 2018 NY Slip Op 08520, Second Dept 12-12-18

 

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EVEN PHYSICALLY SMALL DEFECTS, IN COMBINATION WITH OTHER FACTORS, CAN CONSTITUTE A DANGEROUS CONDITION, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the expert opinion submitted by both sides raised questions of fact whether “beveled edge between the dance floor and the adjoining rug” created a dangerous condition in this slip and fall case. The court noted that even physically small defects can become dangerous in combination with other factors, including lighting:

The Court of Appeals has recognized that even a physically small defect may be actionable, such as where there is a jagged edge, a rough, irregular surface, the presence of other defects in the vicinity, or poor lighting, or if the defect is located where people are naturally distracted from looking down at their feet … . Attention to the specific circumstances is always required, and undue or exclusive focus on whether a defect is a trap or snare is not appropriate … . …

The plaintiffs submitted the expert affidavit of a professional engineer who inspected the dance floor and carpet area. He measured the static coefficient of friction of the beveled edges of the dance floor, and found that they did not provide proper slip resistance for an individual stepping on it while dancing. Additionally, he found that inadequate lighting contributed to the accident by “not providing visual clues to recognize that the dance floor had terminated with the subject metal edging.” … .

Given the conflicting expert affidavits, and the circumstances of the accident, there are triable issues of fact as to whether the beveled edges of the dance floor constituted a dangerous condition that caused the injured plaintiff to slip and fall … . Poliziani v Culinary Inst. of Am., 2018 NY Slip Op 08519, Second Dept 12-12-18

 

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PETITION TO AMEND A NOTICE OF CLAIM WAS UNTIMELY WITH RESPECT TO THE PARENTS’ DERIVATIVE ACTION IN THIS PEDESTRIAN-VEHICLE TRAFFIC ACCIDENT CASE, THE PETITIONERS DID NOT SHOW THAT THE TOWN HAD TIMELY KNOWLEDGE OF THE ALLEGED INVOLVEMENT OF TOWN PERSONNEL, PETITION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for leave to amend the notice of claim against the town in this pedestrian-vehicle traffic accident case should not have been granted. The infant petitioner was struck by a car crossing a road. The proposed amendment would have alleged a town park ranger waved the family across just before the child was struck. Because the request to amend was made more than a year and 90 days after the accident, the request was untimely for the derivative action by the parents, but the statute of limitations was tolled for the infant petitioner. The Second Department went on to find that petitioners did not demonstrate the town had timely knowledge of the the allegation the family was waved across the street by a town employee, even though the allegation was memorialized in a Suffolk County police report:

… [T]he petitioners failed to establish that the Town acquired actual knowledge, within 90 days of the collision or a reasonable time thereafter, of the essential facts constituting the claim that the Town park ranger waved to the family to cross the highway. It is not alleged that the child was struck by a Town vehicle or a Town employee. In addition, Magwood’s [mother’s] testimony at her hearing held pursuant to General Municipal Law § 50-h did not indicate that a Town park ranger waved to the family to cross the highway. Although several witnesses to the collision gave a statement to the effect that the Town park ranger waved to the family to cross the highway, these statements were made to Suffolk County Police Department (hereinafter SCPD) personnel and memorialized in SCPD reports… . Further, while the Town park ranger prepared a Town Division of Enforcement and Security Public Safety report on the date of the collision, that report did not indicate that the Town park ranger waved to the family to cross the highway. ” [F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation'” … . The Town park ranger’s report did not support a ready inference that the Town committed a potentially actionable wrong … .

Moreover, the petitioners failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim asserting the theory that the Town park ranger waved to the family to cross the highway and for the subsequent delay in filing this petition… . Although the petitioners satisfied their initial burden of showing a lack of substantial prejudice to the Town as a result of the late notice, and the Town failed to make a “particularized showing” of substantial prejudice … , the presence or absence of any one factor is not necessarily determinative in deciding whether permission to serve a late notice of claim should be granted … . Matter of Johnson v County of Suffolk, 2018 NY Slip Op 08482, Second Dept 12-12-18

 

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PETITION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED, THE CITY’S KNOWLEDGE OF THE CROSSWALK DEFECT IN THIS SLIP AND FALL CASE IS NOT EQUIVALENT TO TIMELY KNOWLEDGE OF THE NATURE OF PLAINTIFF’S CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s petition to deem the late notice of claim timely served should not have been granted in this slip and fall case. Plaintiff alleged she tripped and fell over a defect in a crosswalk. The notice of claim was serve eight months after the fall. Photos of the defect were alleged to have been taken “shortly after” the fall but were not authenticated. An Internet map service apparently depicted the defects in 2013 and 2014. The court held that the fact that the city may have known of the defect does not mean the city had timely notice of the nature of plaintiff’s claim:

… [W]e disagree with the Supreme Court’s determination that the City acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter. While the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the crosswalk defect, actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability… . Similarly, the service of the notice of claim approximately five months after the expiration of the 90-day statutory period for service did not provide the City with the requisite actual knowledge within a reasonable time … .

We also disagree with the Supreme Court’s determination, based on the photographs submitted by the petitioner, that she sustained her burden of demonstrating that the City would not be substantially prejudiced by the late notice. The petitioner contended that the photographic evidence showed that the defective condition was substantially the same in appearance at the time of her accident as it was some eight months later when her petition was served. However, the photographs purportedly taken “shortly after” the accident were never authenticated … , nor did the petitioner identify the actual date the photographs were taken or the person who took them. Moreover, the more recent photographs were taken at different angles than the earlier photos, and neither set of images contained any measurements or dimensions to support the conclusion that a comparison of the two sets of photographs established that the defect did not change in the interim … . Matter of Bermudez v City of New York, 2018 NY Slip Op 08477, Second Dept 12-12-18

 

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