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PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the hospital’s (Crouse Hospital’s) motion for summary judgment in this medical malpractice action should have been granted. The defendant doctor was not a hospital employee and no hospital employee was named in the complaint or bill of particulars. The plaintiff, in answering the hospital’s summary judgment motion, claimed for the first time that two nurses were negligent. That new theory of recovery could not defeat the motion:

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Following discovery, the hospital moved for summary judgment dismissing the complaint against it, contending that the physician defendant was not its employee and that the hospital therefore could not be held vicariously liable for his alleged negligence. In opposing the motion, plaintiff did not address the hospital’s contention with respect to the physician defendant’s employment status and instead argued for the first time that two of the hospital’s nurses were negligent and that the hospital was vicariously liable for their actions. In our view, that is a new theory of recovery and thus could not be used by plaintiff to defeat the hospital’s motion … . We note that plaintiff did not move to amend the bill of particulars to allege that the hospital was vicariously liable for the nurses’ negligence. Inasmuch as plaintiff did not dispute that the hospital was not vicariously liable for the alleged negligence of the physician defendant, there was no basis to deny the motion, which we now grant. DeMartino v Kronhaus, 2018 NY Slip Op 00974, Fourth Dept 2-9-18

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (ANSWERING PAPERS,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the medical malpractice against the resident (O’Donnell) who assisted the plaintiff’s surgeon (Weise) should have been dismissed. Although the resident severed a nerve during the bone drilling procedure, the resident was under the supervision of the surgeon and exercised no independent judgment. Therefore the action against the resident and the hospital (Crouse Hospital), as the resident’s employer, should have been dismissed:

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It is well settled that a “resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene” … . Even where a resident “play[s] an active role in [plaintiff’s] procedure,” the resident cannot commit malpractice unless he or she was shown to have exercised some ” independent medical judgment’ ” … . Here, it is undisputed that plaintiff was Wiese’s patient, and Wiese determined the type of surgery to be performed on plaintiff. The deposition testimony of O’Donnell and Wiese establishes that O’Donnell was acting as a resident under Wiese’s direction and supervision during the procedure. Indeed, Wiese testified at his deposition and averred in his affidavit that he supervised O’Donnell’s selection of the location and angle of the drill, and that he made the decision to stop drilling. We therefore conclude that O’Donnell and Crouse Hospital met their burden on the motion by establishing that O’Donnell did not exercise independent medical judgment with respect to his operation of the drill, and plaintiff failed to raise an issue of fact … . Blendowski v Wiese, 2018 NY Slip Op 00973, Fourth Dept 2-9-18

NEGLIGENCE (MEDICAL MALPRACTICE, ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/MEDICAL MALPRACTICE (ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/INDEPENDENT JUDGMENT (MEDICAL MALPRACTICE, ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))

PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT).

The Fourth Department determined plaintiff lacrosse player’s action was not barred by a waiver or the doctrine of assumption of the risk. Plaintiff was in a ground ball drill when a coach through a ball at her head, injuring her. The coach’s act was arguably grossly negligent, reckless or intentional, and therefore not covered by the waiver or the doctrine of assumption of the risk:

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Here, plaintiff’s complaint and affidavit include allegations that the actions of defendants were grossly negligent and extremely reckless. Contrary to defendants’ contention, the written waiver does not bar plaintiff’s action inasmuch as a waiver is not enforceable with respect to allegations of grossly negligent conduct … .

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… [I]t is well settled that a person who voluntarily participates in a recreational activity such as lacrosse “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”… . “Such a person, however, will not assume the risks of reckless or intentional conduct, nor will a claim be barred where the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent’ in the activity” … . Tauro v Gait, 2018 NY Slip Op 00952, Fourth Dept 2-9-18

NEGLIGENCE (PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))/ASSUMPTION OF RISK  (PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT)/WAIVER (LACROSSE INJURY, PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))/LACROSSE (ASSUMPTION OF THE RISK, PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))

QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT).

The Fourth Department determined defendants’ motion for summary judgment was properly denied because there was a question of fact whether the assumption of the risk defense applied in this boating accident case. Plaintiff was in a beginner’s sailing program. Her boat capsized and she was struck by the boom when she attempt to right it. Defendants had not provided any capsize-recovery training:

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“The assumption of [the] risk doctrine applies as a bar to liability where a consenting participant in sporting or recreational activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ “… . “However, the doctrine of primary assumption of [the] risk will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . Here, even assuming, arguendo, that defendants established as a matter of law that plaintiff assumed the risks inherent in sailing, we conclude that plaintiff raised triable issues of fact whether defendants unreasonably increased the risks associated with sailing by failing to provide any capsize recovery training to plaintiff and by letting plaintiff sail on the lake under the weather conditions present on the day of the accident … . Ulin v Hobart & William Smith Colls., 2018 NY Slip Op 00985, Fourth Dept 2-9-18

NEGLIGENCE (SAILING, ASSUMPTION OF THE RISK, QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT))/ASSUMPTION OF RISK (SAILING, QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT))/SAILING (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT))

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QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT).​

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment should not have been granted. Defendants sold used gas pumps to a scrap yard, stating that the pumps had been drained of gasoline. When one of the pumps was sent to the shredder it exploded, injuring plaintiff. The other pumps were found to have one to two gallons of gasoline in them. The Fourth Department held there was a question of fact whether defendants were casual sellers of gas pumps and therefore did not owe plaintiff a duty of care. The Fourth Department further held that, even if defendants were casual sellers of gas pumps, there was a question of fact whether they owed a duty of care to plaintiff because the hazard was not open and obvious:

Although it is well settled that casual or occasional sellers of products do “not undertake the special responsibility for public safety assumed by those in the business of regularly supplying those products”… , the evidence submitted by defendants in support of their motion failed to establish that their sale of gas pumps was “wholly incidental” to their business of installing and servicing petroleum distribution systems … .

Even assuming, arguendo, that defendants were merely casual sellers of used gas pumps, we cannot conclude as a matter of law that defendants owed no duty to plaintiff. Even casual sellers owe a duty to warn of dangers that are not open and obvious or readily discernable … . Rosario v Monroe Mech. Servs., Inc., 2018 NY Slip Op 00732, Fourth Dept 2-2-18

NEGLIGENCE (QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/CASUAL SELLERS (NEGLIGENCE, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, DUTY TO WARN, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/WARN, DUTY TO (NEGLIGENCE, OPEN AND OBVIOUS, QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))/PRODUCTS LIABILITY  (QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT))

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THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT). ​

The Fourth Department determined the Labor Law 240(1), 241(6) and 200 causes of action were properly dismissed, but the common law negligence cause of action should not have been dismissed. Plaintiff, a funeral director, was inspecting a grave which had been covered with plywood when he stepped on the plywood and fell into the grave. The Labor Law causes of action did not apply because plaintiff was not engaged in any relevant work at the time of the fall. However there were questions of fact whether defendants created or had notice of a dangerous condition:

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With respect to Labor Law § 240 (1), defendants met their burden of establishing as a matter of law that plaintiff “was neither among the class of workers . . . nor performing the type of work . . . that Labor Law § 240 (1) is intended to protect” … , and plaintiffs failed to raise a triable issue of fact… . Defendants further established that plaintiff was not entitled to the protection of Labor Law § 241 (6) inasmuch as his inspection of the grave site in his capacity as a funeral director had no direct connection with the alteration or excavation work … , and plaintiffs failed to raise a triable issue of fact … . Finally, the court properly granted summary judgment dismissing the Labor Law § 200 claim because, while that statute is not limited to construction work … , it does not apply where, as here, the plaintiff was “not permitted or suffered to work on a building or structure at the accident site” … .

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… [D]efendants “were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises”… . Defendants’ own submissions establish that each had some level of supervisory control over the premises. Moreover, it is undisputed that [defendant] Wolcott dug the grave and placed plywood over it, thus creating and having actual notice of the condition that plaintiffs allege was dangerous. Further, while [defendant] Oakwood established that it did not create the dangerous condition, it “failed to establish as a matter of law that the condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit [Oakwood] or [its] employees to discover and remedy it,” and it thereby failed to establish that it lacked constructive notice of it … . Solecki v Oakwood Cemetery Assn., 2018 NY Slip Op 00692, Fourth Dept 2-2-18

 

LABOR LAW-CONSTRUCTION LAW (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))/NEGLIGENCE (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))/SLIP AND FALL (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))

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IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the city’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff alleged that work done on the area (between the curb and the sidewalk) where she fell created a dangerous condition. The work was done a year before the fall. The city would be liable only if the dangerous condition was immediately created by the work, not if the condition developed over time:

Although plaintiff submitted evidence that defendant may have created the sinkhole by improperly excavating and backfilling the excavated area, we agree with defendant that plaintiff failed to proffer evidence that the depression “was present immediately after completion of the work” … . Indeed, it is well settled that the affirmative negligence exception ” does not apply to conditions that develop over time’ ” … . Burke v City of Rochester, 2018 NY Slip Op 00769, Fourth Dept 2-2-18

 

MUNICIPAL LAW (IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/NEGLIGENCE (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL (MUNICIPAL LAW, (IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SIDEWALKS  (IN THIS SLIP AND FALL CASE, PLAINTIFF DID NOT DEMONSTRATE THE ALLEGED DANGEROUS CONDITION WAS CREATED IMMEDIATELY AFTER THE CITY COMPLETED WORK, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant city’s motion for summary judgment in this drainage-system maintenance case should not have been granted. Plaintiff alleged the city’s failure to maintain a storm drainage system caused flooding. The city argued the flooding was caused by an “act of God.” The Fourth Department noted that city’s own papers raised a question of fact whether the failure to clean the system regularly caused the flooding:

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Defendant submitted the affidavits of its commissioner of public works and its senior engineer, who averred that there is a “trash rack” located in the rear of plaintiff’s property that is used to filter debris from the water entering the underground drainage system from a nearby ravine. If too much debris builds up in the trash rack, it will block the flow of water into the drainage system and flood plaintiff’s premises. According to the deposition testimony of a member of plaintiff limited liability company, which testimony defendant also submitted, such flooding occurred previously in 2006 and caused severe property damage. The senior engineer averred that, to prevent flooding on plaintiff’s property, defendant’s employees periodically inspect and maintain the ravine. Plaintiff’s member, however, testified that defendant’s employees rarely came to the property to clear debris from the trash rack. 2305 Genesee St., LLC v City of Utica, 2018 NY Slip Op 00745, Fourth Dept 2-2-18

 

 

MUNICIPAL LAW (NEGLIGENCE, DRAINAGE SYSTEM, CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/NEGLIGENCE (MUNICIPAL LAW, DRAINAGE SYSTEM, CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/STORM DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE CITY’S OWN PAPERS RAISED A QUESTION OF FACT WHETHER FLOODING WAS CAUSED BY A FAILURE TO MAINTAIN A STORM DRAINAGE SYSTEM, CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this traffic accident case, noted that verbal notice to the city about potholes, even if reduced to writing, does not satisfy the written notice prerequisite for the city’s liability:

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Defendant established that it lacked prior written notice of a defective or unsafe condition in the road, and plaintiff failed to meet its burden of demonstrating that an exception to the general rule is applicable… . Contrary to plaintiff’s contention, it is well established that “verbal or telephonic communication to a municipal body that is reduced to writing [does not] satisfy a prior written notice requirement” … . Tracy v City of Buffalo, 2018 NY Slip Op 00704, Fourth Dept 2-2-1

MUNICIPAL LAW (TRAFFIC ACCIDENTS, POTHOLES, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/NEGLIGENCE (MUNICIPAL LAW, TRAFFIC ACCIDENTS, POTHOLES, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, POTHOLES, VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/POTHOLES (MUNICIPAL LAW, NEGLIGENCE, TRAFFIC ACCIDENTS,  VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))/WRITTEN NOTICE  (MUNICIPAL LAW, NEGLIGENCE, TRAFFIC ACCIDENTS,  VERBAL NOTICE TO CITY ABOUT POTHOLES, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE PREREQUISITE FOR CITY LIABILITY, PLAINTIFF ALLEGED A TRAFFIC ACCIDENT WAS CAUSED BY POTHOLES (FOURTH DEPT))

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PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this car-animal accident case should not have been granted. Although, based upon the doctrine of res ipsa loquitur, the presence of defendants’ black angus bull in the roadway may have constituted negligence, plaintiff did not demonstrate she could not have avoided the accident by lowering her speed on that dark and rainy night:

Cattle are classified as “domestic animal[s]” in Agriculture and Markets Law § 108 (7), and it is well established that “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7)—is negligently allowed to stray from the property on which the animal is kept” … . Here, “defendants were in exclusive control of the [bull] and the fences surrounding the pasture where [it was] kept” and, because cattle “do not generally wander unattended on public streets in the absence of negligence”… , we conclude that the court properly inferred defendants’ negligence as a starting point in determining their motion.

We further conclude that defendants failed to rebut the inference of negligence inasmuch as they failed to submit proof that “the animal’s presence on the [road] was not caused by [their] negligence” … , or “that something outside of [defendants’] control” allowed the bull to escape … . …

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Plaintiff’s burden on her motion was to establish both that defendants were negligent as a matter of law, and that she was free of comparative fault … . Even assuming, arguendo, that plaintiff met her burden with respect to defendants’ alleged negligence, we conclude that she failed to meet her burden with respect to her own alleged comparative negligence. … [T]here is an issue of fact whether slower travel would have enabled plaintiff to avoid the collision, and that issue must be determined by a jury … . Catalano v Heiden Val. Farms, 2018 NY Slip Op 00759, Fourth Dept 2-2-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ANIMAL LAW (TRAFFIC ACCIDENTS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/RES IPSA LOQUITUR (ESCAPED ANIMALS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (ESCAPED ANIMALS,  PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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