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A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town’s motion for summary judgment in this tree-fall accident should not have been granted. Plaintiff alleged a tree near the roadway fell on the vehicle in which plaintiff was a passenger:

Municipalities have a duty to maintain their roadways in a reasonably safe condition, and this duty extends to trees adjacent to the road which could pose a danger to travelers … . Municipalities also possess a common-law duty to inspect trees adjacent to their roadways … .

Here, the Town did not establish its prima facie entitlement to judgment as a matter of law because it failed to demonstrate that it met its duty to inspect and maintain the subject tree, or that it lacked constructive notice of the alleged dangerous condition of the tree … . Schillaci v Town of Islip, 2018 NY Slip Op 05070, Second Dept 7-5-18

​NEGLIGENCE (MUNICIPAL LAW, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TREES, ROADS AND HIGHWAYS, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/TREES (MUNICIPAL LAW, HIGHWAYS AND ROADS, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, TREES, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))

QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town, owner-operator of a skating rink, did not eliminate all questions of fact about whether it provided proper supervision at the rink. Therefore there was a question of fact whether the doctrine of assumption of the risk applied. Plaintiff alleged she was pushed to the ice by an unruly skater:

Participants in sports or recreational activities “will not be deemed to have assumed . . . unreasonably increased risks” … . “Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision” … . “The duration and nature of the allegedly reckless conduct are factors that bear on this issue” … .

Here, the defendant failed to establish, prima facie, that the action was barred by the doctrine of primary assumption of risk … . The defendant’s submissions failed to eliminate all triable issues of fact as to whether the risk was unreasonably increased by the defendant’s alleged failure to properly supervise the skaters such that the doctrine of primary assumption of risk would not apply … . Laurent v Town of Oyster Bay, 2018 NY Slip Op 05028, Second Dept 7-5-18

​NEGLIGENCE (QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/ICE SKATING (QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/ASSUMPTION OF THE RISK (ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/MUNICIPAL LAW (ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/SUPERVISION (NEGLIGENCE, ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))

THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there was a question of fact whether a grassy path used to walk from a parking lot to a school building constituted a dangerous condition in this slip and fall case. The path had been cleared of ice and snow by a custodian but the plaintiff described the path as wet and muddy, as opposed to having ice and snow on it. There was a paved walkway to the school and there was testimony the grassy path should not have been cleared of snow:

“As the party seeking summary judgment, defendant bore the initial burden of demonstrating that it had maintained the property in a reasonably safe condition and that it did not create or have actual or constructive notice of the specific allegedly dangerous condition that resulted in plaintiff’s injury” … . To that end, “the scope of a landowner’s duty is measured in terms of foreseeability” … . “Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated” … .

Here, the evidence shows that defendant created the path on which plaintiff fell and, therefore, the only valid inference is that it was foreseeable that people would use the path once it had been cleared… . Thus, defendant had a duty to maintain the path in a reasonably safe condition … . However, whether “a dangerous condition exists is generally a question for the jury” … , unless “only a single inference can be drawn from the undisputed facts” … . The deposition testimony established that defendant’s employee created the path, but there was no testimony regarding whether there was any additional maintenance. Also, although plaintiff testified that the path was wet and muddy, she could not recall if there was snow or ice on it. Therefore, a triable question of fact exists as to whether the path constituted a dangerous condition … . Ellis v Lansingburgh Cent. Sch. Dist., 2018 NY Slip Op 05011, Third Dept 7-5-18

​NEGLIGENCE (SLIP AND FALL, THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))/SLIP AND FALL (THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))/FORESEEABILITY (SLIP AND FALL, THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT))

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SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined defendant’s motion for summary judgment in this ice-skating slip and fall case should not have been granted. The claimant could not assume the risk created by a negligently maintained ice surface, and claimant’s awareness of the dangerous condition relates only to the issue of comparative fault (which does not preclude summary judgment):

We … agree with claimant that her claim is not barred by the doctrine of assumption of the risk. It is well settled that “[a claimant] will not be held to have assumed those risks that are not inherent . . . , i.e., not ordinary and necessary in the sport” … . Although the risk of falling while ice skating is ” inherent in and arise[s] out of the nature of the sport generally’ ” … , we conclude that skating on a negligently maintained ice surface is not a risk that is inherent in the sport. Contrary to defendant’s contention, under the circumstances presented here, claimant’s awareness of the poor ice conditions and her decision to continue skating for some period of time, apparently to have a photograph taken, relate only to the issue of her comparative fault, if any … . Wyzykowski v State of New York, 2018 NY Slip Op 04875, Fourth Dept 6-29-18

​NEGLIGENCE (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL  (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ICE SKATING (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ASSUMPTION OF RISK (ICE SKATING, (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (ICE SKATING, SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (COMPARATIVE NEGLIGENCE, SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/COURT OF CLAIMS (SKATER DID NOT ASSUME THE RISK CREATED BY A NEGLIGENTLY MAINTAINED ICE SURFACE AND SKATER’S AWARENESS OF THE CONDITION RELATES ONLY TO COMPARATIVE NEGLIGENCE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff had stated a cause of action for battery alleging a medical procedure was performed without her consent:

“It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . Here, in moving under CPLR 3211 (a) (7), defendants attached all of the pleadings, which alleged, inter alia, that defendants “performed a procedure upon the Plaintiff while she was under general anesthesia without informing her or obtaining any consent, which conduct constituted a battery upon her.” Defendants also referenced and provided to the court the informed consent form executed by plaintiff that explicitly authorized the performance of a flexible sigmoidoscopy, but not a colonoscopy. The form further noted in relevant part that, “[i]f any unforeseen condition arises during the procedure calling for, in the physician’s judgment, additional procedures, treatments, or operations, [defendant is] authorize[d] . . . to do whatever he . . . deems advisable.” We conclude that plaintiff has sufficiently asserted a cause of action sounding in battery by alleging that she provided no consent to the performance of a colonoscopy … , and that the evidentiary submissions considered by the court, including the consent form, do not “establish conclusively that plaintiff has no cause of action” sounding in battery … . McCarthy v Shah, 2018 NY Slip Op 04887, Fourth Dept 6-29-18

​MEDICAL MALPRACTICE (BATTERY, COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, BATTERY, COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))/BATTERY (MEDICAL MALPRACTICE,  COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))

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CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant city’s motion for summary judgment in this crosswalk pedestrian accident case should have been granted. The city had assigned a school crossing guard for the crosswalk where infant plaintiff was struck by a school bus, but the guard had called in sick that day. The First Department held the plaintiffs did not demonstrate a special relationship with the city:

In order to establish that the City voluntarily assumed a duty, plaintiffs have the burden of showing: (1) an assumption by the City’s agents, through promises or action, of an affirmative duty to act on behalf of plaintiffs; (2) knowledge on the part of the City’s agents that inaction could lead to harm; (3) some form of direct contact between the City’s agents and plaintiffs; and (4) justifiable reliance by plaintiffs… . Here, the record shows that no special duty existed between the City and plaintiffs before the accident. There was no direct contact between the City’s agents and plaintiffs, and the facts that the school crossing guard greeted infant plaintiffs and the children relied upon the crossing guard’s instructions when the guard was at the intersection before the accident is insufficient to create a special duty. Ivan D. v Little Richie Bus Serv. Inc., 2018 NY Slip Op 04823, First Dept 6-28-18

​MUNICIPAL LAW (NEGLIGENCE, SPECIAL RELATIONSHIP, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/NEGLIGENCE (MUNICIPAL LAW, SPECIAL RELATIONSHIP, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PEDESTRIANS (TRAFFIC ACCIDENT, MUNICIPAL LAW, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CROSSWALKS  (TRAFFIC ACCIDENT, MUNICIPAL LAW, CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT).

The Third Department determined the road defect which allegedly caused plaintiff to fall off her bicycle over the handlebars was properly found to be trivial and summary judgment was properly awarded to the defendant:

Although a landowner has a duty to maintain its property in a reasonably safe condition…, trivial defects are not actionable… . “[T]here is no predetermined height differential that renders a defect trivial”… . Instead, courts must consider “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury”… . Thus, “a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperil[s] the safety of a pedestrian” …

The record includes photographs that confirm the size and location of the defect, relative to the roadway and crosswalk, and evinces that plaintiff previously traversed this area on bicycle several times prior to the accident, without incident. The photographs also reveal that the crosswalk against which the defect is located, made of bricks and demarcated from the asphalt with a granite boarder, would be visible to a bicyclist well before his or her tires made contact with the defect… . Gami v Cornell Univ.,2018 NY Slip Op 04812, Third Dept 6-28-18

NEGLIGENCE (BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/BICYCLES (NEGLIGENCE, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/TRIVIAL DEFECT (NEGLIGENCE, BICYCLE ACCIDENT, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, BICYCLE ACCIDENTS, TRIVIAL DEFECT, DEFECT IN ROADWAY WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL OFF HER BICYCLE OVER THE HANDLEBARS WAS PROPERLY DEEMED TRIVIAL AND NOT ACTIONABLE (THIRD DEPT))

PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ (truck owner’s and driver’s) motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was injured by the rear portion of a tractor trailer which had completed 85% of a right turn:

… [T]he plaintiff allegedly was walking on a sidewalk … . After she stepped off the sidewalk onto the street, her right foot came into contact with the rear of a tractor-trailer that was making a right turn. … The plaintiff allegedly did not see the tractor-trailer prior to the impact. …

… [T]he plaintiff was the sole proximate cause of the accident … . The evidence … established that the plaintiff failed to see what was there to be seen and walked into the path of the rear of the tractor-trailer. Faulknor v Gina’s Trucking, Inc., 2018 NY Slip Op 01045, Second Dept 2-14-18

NEGLIGENCE (PEDESTRIANS, TRAFFIC ACCIDENTS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the utility box recessed into a city sidewalk was open and obvious and was not inherently dangerous. Defendants were therefore entitled to summary judgment in this slip and fall case:

There is ” no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous'” … . “While the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence” … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … .Similarly, the determination of whether “a condition is not inherently dangerous . . . depends on the totality of the specific facts of each case”… .

Here, contrary to the plaintiff’s contention, each of the defendants established, prima facie, that the complained-of condition “was open and obvious, as it was not only readily observable by those employing the reasonable use of their senses, but was known to [the decedent] prior to the accident and, as a matter of law, was not inherently dangerous” … . Graffino v City of New York, 2018 NY Slip Op 04702, Second Dept 6-27-18

​NEGLIGENCE (UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/SLIP AND FALL UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, (UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))

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FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT)

The Second Department noted that the defendant’s (NYS’s) failure to plead a jurisdictional defect as a defense (defendant had not timely filed and served notice of claim) waived the defect. The claimant did not present expert evidence to support the medical malpractice claim and therefore did not demonstrate that any alleged deviation from the accepted standard of care was the proximate case of his injury. The claimant alleged a negligent failure to diagnose a urinary tract infection (UTI):

“To establish a prima facie case of medical malpractice, a plaintiff must set forth (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of his or her injuries”… . Further, where, as here, the subject matter (UTIs) and treatment thereof are “not within the ordinary experience and knowledge of laypersons”… , the claimant must establish a prima facie case of medical malpractice through expert medical opinion … . Whitfield v State of New York, 2018 NY Slip Op 04773, Second Dept 6-27-18

COURT OF CLAIMS (FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/MEDICAL MALPRACTICE (EXPERT OPINION, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))

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