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DEFENDANT CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the defendant city’s motion for summary judgment in this car-pedestrian injury case should not have been granted. The city had paved a driveway which connected a road to a pave walking path in a park. Defendant driver, who was intoxicated, drove his car to the park path where plaintiffs had been walking their dogs. There were no barriers or warning signs. The city was not immune because maintenance of a park is a proprietary, not a governmental function:

… [W]e note that, while the City has a duty to maintain its roads in a reasonably safe condition … , plaintiffs’ claims also implicate the City’s “duty to maintain its park and playground facilities in a reasonably safe condition”… . We thus reject the City’s contention that it is immune from liability because plaintiffs’ claims arise from its performance of a governmental function. “It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function” … . Furthermore, a “municipality may not ignore the foreseeable dangers [it created], continue to extend an invitation to the public to use the area and not be held accountable for resultant injuries” … . Similarly, where, as here, it is undisputed that the City did not consider and render a determination regarding any potential danger prior to paving the driveway, the City’s maintenance of the intersection in question is also a proprietary function … . …

The City never disputed in its motion papers that it paved the driveway during its development of the park, thereby creating the condition of which plaintiffs now complain, but it instead argued that “[p]laintiffs have offered no evidence” that the City failed to adhere to applicable design standards or that the driveway created or enhanced a risk to park patrons. It is well established that “a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s proof” … . Similarly, because the City relied exclusively on its argument, unsupported by any evidence, that a defective or dangerous condition did not exist for which a warning was required, it also failed to establish as a matter of law that it had no duty to warn of the foreseeable danger of collision created by this driveway access … . Brady v City of N. Tonawanda, 2018 NY Slip Op 03253, Fourth Dept 5-4-18

​NEGLIGENCE DEFENDANT (CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, IMMUNITY, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/IMMUNITY (CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/PARKS (NEGLIGENCE, MUNICIPAL LAW, IMMUNITY, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/PROPRIETARY FUNCTION (NEGLIGENCE, MUNICIPAL LAW, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))/SUMMARY JUDGMENT (GAPS IN PROOF, CITY PAVED A DRIVEWAY CONNECTING A ROAD TO A PAVED PARK PATH, DEFENDANT DRIVER DROVE UP THE DRIVEWAY TO THE PAVED PATH WHERE PLAINTIFFS HAD BEEN WALKING THEIR DOGS, MAINTENANCE OF A PARK IS A PROPRIETARY NOT GOVERNMENTAL FUNCTION, NO GOVERNMENTAL IMMUNITY, CITY’S MOTION FOR SUMMARY JUDGMENT RELIED SOLELY ON GAPS IN PLAINTIFFS’ PROOF AND SHOULD HAVE BEEN DENIED (FOURTH DEPT))

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RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendant resident physicians’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s bowel was perforated during an emergency caesrean section. The residents did not exercise any independent judgment during the surgery and were not required to intervene in the treatment by the attending physician (Dr. Balaya):

Dr. Bayala’s affidavit also addressed the care provided by the three resident physicians. Dr. Balaya averred that the resident physicians were all under his supervision and direction and, thus, they never exercised independent judgment or made an independent decision with respect to plaintiff’s care or treatment … . In addition, Dr. Balaya averred that none of the resident physicians could be held liable for failure to intervene in plaintiff’s care and treatment on the ground that his alleged deviations from normal medical practice were so great that such intervention was warranted … . …

Plaintiffs’ submissions in opposition to the motion failed to raise an issue of fact whether any of the resident physicians exercised independent medical judgment in plaintiff’s care or treatment, or neglected to intervene in plaintiff’s care or treatment where the attending physician’s directions greatly deviated from normal medical practice … . Groff v Kaleida Health, 2018 NY Slip Op 03249, Fourth Dept 5-4-18

​NEGLIGENCE (RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE  (RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/RESIDENT PHYSICIANS (MEDICAL MALPRACTICE, RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted to the extent plaintiff relied on the doctrine of res ipsa loquitur. Plaintiff, who underwent hip replacement surgery, suffered an eye injury either in the operating room or the recovery room:

Plaintiff commenced this medical malpractice action seeking damages for injuries he sustained to his left eye during hip replacement surgery performed at defendant St. Joseph’s Hospital (Hospital). Defendants Brett Greenky, M.D. and Syracuse Orthopedic Specialists, P.C. (SOS) were retained by plaintiff to perform the surgery, and defendants Mehtab Singh Bajwa, M.D., Tracie O’Shea, C.R.N.A., and the Anesthesia Group of Onondaga, P.C. (collectively, anesthesia defendants) were responsible for, inter alia, administering the anesthesia to plaintiff prior to the surgery. * * *

“Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury”… . “Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … .”In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor . . . That rule is particularly appropriate in a medical malpractice case such as this in which the plaintiff has been anesthetized” … . Here, plaintiff was under the care and control of Greenky, SOS and the anesthesia defendants during the surgery, and the Hospital immediately after the surgery. During that time, plaintiff was either under anesthesia and/or not fully awake or oriented to his surroundings. While O’Shea testified that there was no indication of an eye injury when she delivered plaintiff to the recovery room, hospital staff testified that plaintiff’s eye was noticeably irritated at that time. Consequently, there is an issue of fact whether plaintiff sustained the eye injury in the operating room or in the recovery room. ” Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment . . . [, and] it is manifestly unreasonable for [the defendants] to insist that [he] identify any one of them as the person who did the alleged negligent act’ ” … . White v Bajwa, 2018 NY Slip Op 03246, Fourth Dept 5-4-18

​NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (RES IPSA LOQUITUR,  PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, RES IPSA LOQUITUR, PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/RES IPSA LOQUITUR (MEDICAL MALPRACTICE,  PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCHED THE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT).

The Fourth Department determined defendant great-grandmother’s motion for summary judgment in this negligent supervision action was properly granted. Defendant was care for plaintiff’s five-year-old daughter, Isabella. When defendant went to bed she left Isabella with 16-year old Freeman, a neighbor who had watched Isabella more than 10 times in the past without incident. Freeman killed plaintiff’s daughter while defendant was asleep:

It is well established that ” an intervening intentional or criminal act will generally sever the liability of the original tort-feasor’ ” … . “The test to be applied is whether under all the circumstances the chain of events that followed [an allegedly] negligent act or omission was a normal or foreseeable consequence of the situation created by the [alleged] negligence” … . Thus, an intervening criminal act by a third party that is ” extraordinary under the circumstances’ ” or ” not foreseeable in the normal course of events’ ” breaks the causal chain and exonerates the original tortfeasor of liability … .

Here, even assuming, arguendo, that defendant was negligent to some extent in supervising Isabella on the night in question, we nevertheless conclude, as a matter of law, that Freeman’s intentional murder of Isabella severed the chain of causation and eliminated any liability on defendant’s part (see id.). The record contains numerous undisputed facts supporting that conclusion. Freeman had previously watched Isabella on more than 10 occasions, all without incident, and they had even colored together before. Freeman and Isabella got along well for years before the murder, and defendant never observed any “red flags” or troubling indicia about Freeman generally, or his interactions with Isabella in particular. Defendant was unaware of any mental problems with Freeman. Indeed, there is no suggestion that Freeman had ever exhibited any questionable behavior or tendencies in the past, whether or not known to defendant. Tennant v Lascelle, 2018 NY Slip Op 03279, Fourth Dept 5-4-18

​NEGLIGENCE (NEGLIGENT SUPERVISION, DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))/NEGLIGENT SUPERVISION (DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))/CRIMINAL ACT (NEGLIGENCE, SEVERS LIABILITY, DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))

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MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT).

The Fourth Department determined a power point presentation made by a defendant in a medical malpractice action was discoverable, even though the power point presentation was created for a quality assurance review meeting (usually off limits for discovery pursuant to Executive Law 6527):

We … conclude that the disputed materials are discoverable under the exception to the privilege for “statements made by any person in attendance at . . . a [medical or quality assurance review] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting” (Education Law § 6527 [3]). Disclosure under that exception may be obtained where: (1) the statements were made during a quality assurance review meeting; (2) that review meeting concerned the same subject matter as the malpractice action; and (3) the statements were made by a defendant in the action … . “Statements” include written statements, such as letters… , and the PowerPoint slide show at issue here. Drum v Collure, 2018 NY Slip Op 03244, Fourth Dept 5-4-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/MEDICAL MALPRACTICE (EDUCATION LAW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/EDUCATION LAW (MEDICAL MALPRACTICE, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, EDUCATION LAW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/HOSPITALS (QUALITY ASSURANCE REVIEW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/QUALITY ASSURANCE REVIEW (HOSPITALS, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, DISCOVERY, EDUCATION LAW, QUALITY ASSURANCE REVIEW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/DISCOVERY (MEDICAL MALPRACTICE, EDUCATION LAW,  MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))

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RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT, POINTING TO GAPS IN THE OPPOSING PARTY’S PROOF WILL NOT SUPPORT SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the fact that the people engaged by defendant to paint the property were volunteers did not preclude the application of the doctrine of respondeat superior based upon a principal-agent relationship. Plaintiff was injured by a ladder when she left the building. Defendants’ motion for summary judgment should not have been granted. The court noted that pointing to gaps in the opposing party’s proof will not support summary judgment:

“Under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency”… , and “[a] principal-agent relationship can include a volunteer when the requisite conditions, including control and acting on another’s behalf, are shown” … . Here, defendants each failed to establish as a matter of law that the volunteers at the residence where plaintiff was injured may not be considered their servants for purposes of respondeat superior liability … , or that the duty to ensure that the work was performed safely may not fairly be imposed upon them … .

In addition, defendants cannot meet their burden on their respective summary judgment motions and cross motion based upon plaintiff’s failure to identify the volunteer(s) who caused the ladder to strike her … . “[I]n seeking summary judgment, [a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof’ “… . Defendants’ failure to meet their burden requires denial of the motions and cross motion, “regardless of the sufficiency of the opposing papers” … . Rozmus v Wesleyan Church of Hamburg, 2018 NY Slip Op 03261, Fourth Dept 5-4-18

​NEGLIGENCE (VICARIOUS LIABILITY, RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/RESPONDEAT SUPERIOR (NEGLIGENCE, VOLUNTEERS, RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/VICARIOUS LIABILITY (RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/AGENCY (NEGLIGENCE, RESPONDEAT SUPERIOR, VOLUNTEERS, RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/SUMMARY JUDGMENT (POINTING TO GAPS IN THE OPPOSING PARTY’S PROOF WILL NOT SUPPORT SUMMARY JUDGMENT (FOURTH DEPT))

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PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined that the assumption of the risk doctrine and the signed release did not warrant summary judgment in favor of defendant in this horseback-riding injury case. Plaintiff fell from a horse during a riding lesson:

… [I]t is undisputed that plaintiff was a beginner and had never before attempted to mount or ride a horse, and the deposition testimony relied upon by defendants raises questions of fact whether defendants unreasonably increased the risks associated with mounting the horse by failing to give plaintiff adequate instructions and assistance based on her size, athleticism, and obvious struggles in attempting to mount the horse, and whether there were concealed risks of mounting the horse, i.e., whether the horse was “tacked” properly … . For the same reasons, we reject defendants’ contention, as an alternative ground for affirmance, that the written release established as a matter of law that, as per the language of the release, plaintiff expressly assumed “the unavoidable risks inherent in all horse-related activities” … .  Jones v Smoke Tree Farm, 2018 NY Slip Op 03299, Fourth Dept 5-4-18

​NEGLIGENCE (HORSES, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/ANIMAL LAW (HORSES, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/HORSES (PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/ASSUMPTION OF RISK (HORSES, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/RELEASE (HORSE RIDING LESSONS, PLAINTIFF FELL FROM A HORSE DURING A RIDING LESSON, NEITHER THE ASSUMPTION OF THE RISK DOCTRINE NOR THE SIGNED RELEASED WARRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HORSE FARM, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

RAISED METAL PLATE IN SIDEWALK DEEMED A NONACTIONABLE TRIVIAL DEFECT IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined the negligence claim against the state in this slip and fall case was properly dismissed after trial. The raised metal plate in the sidewalk was deemed a trivial defect, not a dangerous condition:

The evidence at trial established that the incident occurred on a clear, sunny day, that claimant saw the readily apparent steel plate, and that the height differential between the steel plate and the sidewalk was small. Graham v State of New York, 2018 NY Slip Op 03294, Fourth Dept 5-4-18

​NEGLIGENCE (SLIP AND FALL, RAISED METAL PLATE IN SIDEWALK DEEMED A NONACTIONABLE TRIVIAL DEFECT IN THIS SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (RAISED METAL PLATE IN SIDEWALK DEEMED A NONACTIONABLE TRIVIAL DEFECT IN THIS SLIP AND FALL CASE (FOURTH DEPT))/SIDEWALKS (SLIP AND FALL, RAISED METAL PLATE IN SIDEWALK DEEMED A NONACTIONABLE TRIVIAL DEFECT IN THIS SLIP AND FALL CASE (FOURTH DEPT))/TRIVIAL DEFECT (SLIP AND FALL, RAISED METAL PLATE IN SIDEWALK DEEMED A NONACTIONABLE TRIVIAL DEFECT IN THIS SLIP AND FALL CASE (FOURTH DEPT))

EVIDENCE THAT DEFENDANT’S EMPLOYEE SLIPPED ON ICE AND SNOW SEVERAL HOURS BEFORE PLAINTIFF SLIPPED AND FELL IN THE SAME PARKING LOT RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION (FOURTH DEPT).

The Fourth Department determined defendant’s motion for summary judgment in this parking-lot snow-ice slip and fall case was properly denied. Defendant’s submissions included evidence one of plaintiff’s employee had slipped and fallen on ice in the parking lot several hours before plaintiff fell. That evidence raised a question of fact whether defendant had constructive knowledge of the condition:

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . Although “an owner’s general awareness’ that a dangerous condition may exist is insufficient to support a finding that the owner had constructive notice of the specific condition that caused the plaintiff to slip and fall” … , evidence that another person had fallen in the “same general vicinity” a few hours before the plaintiff’s fall raises triable issues of fact whether the condition existed for a sufficient length of time to discover and remedy it … . Inasmuch as defendant submitted evidence that its employee slipped in the same parking lot as plaintiff several hours before plaintiff’s fall and thereafter observed the icy condition as he rendered aid to plaintiff, there are triable issues of fact “whether the icy condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit defendant[] to discover it and take corrective action’ ” … . Cosgrove v River Oaks Rests., LLC, 2018 NY Slip Op 03286, Fourth Dept 5-4-18

​NEGLIGENCE (SLIP AND FALL, EVIDENCE THAT DEFENDANT’S EMPLOYEE SLIPPED ON ICE AND SNOW SEVERAL HOURS BEFORE PLAINTIFF SLIPPED AND FELL IN THE SAME PARKING LOT RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION (FOURTH DEPT))/SLIP AND FALL (EVIDENCE THAT DEFENDANT’S EMPLOYEE SLIPPED ON ICE AND SNOW SEVERAL HOURS BEFORE PLAINTIFF SLIPPED AND FELL IN THE SAME PARKING LOT RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION (FOURTH DEPT))/CONSTRUCTIVE NOTICE (SLIP AND FALL,  EVIDENCE THAT DEFENDANT’S EMPLOYEE SLIPPED ON ICE AND SNOW SEVERAL HOURS BEFORE PLAINTIFF SLIPPED AND FELL IN THE SAME PARKING LOT RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION (FOURTH DEPT))

PERSON SENDING TEXT MESSAGES TO A DRIVER DOES NOT OWE A DUTY OF CARE TO A PERSON INJURED BY THE DRIVER, OSTENSIBLY BECAUSE THE DRIVER WAS DISTRACTED BY THE TEXTS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined a person who sends text messages to someone who is driving does not owe a duty of care to a person injured by the driver, ostensibly because the driver was distracted by the texts:

… [I]t is the duty of the driver to see what should be seen and to exercise reasonable care in the operation of his or her vehicle to avoid a collision with another vehicle …  If a person were to be held liable for communicating a text message to another person whom he or she knows or reasonably should know is operating a vehicle, such a holding could logically be expanded to encompass all manner of heretofore innocuous activities. A billboard, a sign outside a church, or a child’s lemonade stand could all become a potential source of liability in a negligence action. Each of the foregoing examples is a communication directed specifically at passing motorists and intended to divert their attention from the highway.

To be sure, cellular telephones and other electronic devices present unique distractions to motorists. For that reason, the legislature passed laws specifically to regulate the use of cellular telephones and other electronic devices by those operating motor vehicles … . The legislature did not create a duty to refrain from communicating with persons known to be operating a vehicle. To the contrary, those laws place the responsibility of managing or avoiding the distractions caused by electronic devices squarely with the driver. The driver has various means available for managing or avoiding such distractions, such as a hands-free device to handle incoming calls…  or a setting for temporarily disabling sounds or alerts. Or, the driver can simply pull over to the side of the highway to engage in any communications deemed too urgent to wait. The remote sender of a text message is not in a good position to know how the driver will or should handle incoming text messages. Vega v Crane, 2018 NY Slip Op 03262, Fourth Dept 5-4-18

​NEGLIGENCE (TEXT MESSAGES, PERSON SENDING TEXT MESSAGES TO A DRIVER DOES NOT OWE A DUTY OF CARE TO A PERSON INJURED BY THE DRIVER, OSTENSIBLY BECAUSE THE DRIVER WAS DISTRACTED BY THE TEXTS (FOURTH DEPT))/DUTY OF CARE (TEXT MESSAGES, DRIVERS, PERSON SENDING TEXT MESSAGES TO A DRIVER DOES NOT OWE A DUTY OF CARE TO A PERSON INJURED BY THE DRIVER, OSTENSIBLY BECAUSE THE DRIVER WAS DISTRACTED BY THE TEXTS (FOURTH DEPT))/TEXT MESSAGES (NEGLIGENCE, DRIVERS, PERSON SENDING TEXT MESSAGES TO A DRIVER DOES NOT OWE A DUTY OF CARE TO A PERSON INJURED BY THE DRIVER, OSTENSIBLY BECAUSE THE DRIVER WAS DISTRACTED BY THE TEXTS (FOURTH DEPT))/TRAFFIC ACCIDENTS (TEXT MESSAGES, DRIVERS, PERSON SENDING TEXT MESSAGES TO A DRIVER DOES NOT OWE A DUTY OF CARE TO A PERSON INJURED BY THE DRIVER, OSTENSIBLY BECAUSE THE DRIVER WAS DISTRACTED BY THE TEXTS (FOURTH DEPT))/DRIVERS (TEXT MESSAGES, NEGLIGENCE, PERSON SENDING TEXT MESSAGES TO A DRIVER DOES NOT OWE A DUTY OF CARE TO A PERSON INJURED BY THE DRIVER, OSTENSIBLY BECAUSE THE DRIVER WAS DISTRACTED BY THE TEXTS (FOURTH DEPT))

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