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DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined documents sought from a nursing home were not shielded from discovery by the Public Health Law. The documents concerned plaintiff’s decedent’s falls:

Public Health Law § 2805-j requires nursing homes, among other healthcare-related entities, to maintain a program for the identification and prevention of medical malpractice, including the establishment of a quality assurance committee which, among other things, is required to insure that information gathered pursuant to the program is utilized to review and to revise hospital policies and procedures. A New York State Department of Health regulation also requires nursing homes to establish and maintain a quality assessment and assurance program (see 10 NYCRR 415.27). Public Health Law § 2805-m and Education Law § 6527(3) both protect from disclosure documents created “by or at the behest of a quality assurance committee for quality assurance purposes” … . “It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes” … . The party asserting the privilege ” is required at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure”‘… . Records that are duplicated or used by a quality assurance committee are not necessarily privileged … .

Here, in support of its cross motion for a protective order shielding the reports from disclosure, the Nursing Home submitted, among other things, the affidavit of its administrator, a privilege log, and, in camera, the three reports it was able to locate. Contrary to the determination of the Supreme Court, the Nursing Home’s showing was insufficient to demonstrate that the reports were generated by or at the behest of the Nursing Home’s Quality Assurance Committee. Robertson v Brookdale Hosp. Med. Ctr., 2017 NY Slip Op 06204, Second Dept 8-16-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/MEDICAL MALPRACTICE (PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/PRIVILEGE (PUBLIC HEALTH LAW,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, PRIVILEGE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/NURSING HOMES (PUBLIC HEALTH LAW, PRIVILEGE,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/QUALITY ASSURANCE (PUBLIC HEALTH LAW, MEDICAL MALPRACTICE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))

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QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant school’s motion for summary judgment in this student on student assault case was properly denied:

… [C]ontrary to the defendant’s assertions, it failed to demonstrate, prima facie, that the classmate’s grabbing of the infant plaintiff’s head and pushing it down into the table was not foreseeable or that the defendant’s alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . The defendant’s motion papers demonstrated the existence of triable issues of fact as to whether the defendant had knowledge of the offending classmate’s dangerous propensities due to his involvement in other altercations with classmates in the recent past … . Thus, the defendant failed to establish, prima facie, that it lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the alleged injuries to the infant plaintiff. As to proximate cause, the defendant did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously “that even the most intense supervision could not have prevented it” … . Rt v Three Vil. Cent. Sch. Dist., 2017 NY Slip Op 06207, Second Dept 8-16-17

NEGLIGENCE (EDUCATION-SCHOOL LAW, QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSAULT, QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/ASSAULT (STUDENT ON STUDENT, NEGLIGENCE, QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S VIOLENT PROPENSITIES AND THE SCHOOL’S ABILITY TO PREVENT THE STUDENT ON STUDENT ASSAULT, SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a one-inch gap between sidewalk slabs was a non-actionable trivial defect:

Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury… . However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … .

In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, the evidence submitted by the defendants in support of their motion for summary judgment, including the deposition testimony of the plaintiff and photographs of the accident site, was sufficient to establish, prima facie, that, given the characteristics of the defect and the surrounding circumstances, the gap at issue was trivial, and therefore, not actionable … .  Melia v 50 Ct. St. Assoc., 2017 NY Slip Op 06176, Second Dept 8-16-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, TRIVIAL DEFECT, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))

PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff demonstrated freedom from comparative fault. Defendant had run a red light:

To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault… . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability. The evidence submitted on her motion, which included her deposition testimony and a certified copy of the police accident report, demonstrated, prima facie, that she was not at fault in the happening of the accident, and that the sole proximate cause of the accident was the conduct of the defendant driver in entering the intersection without stopping at a red traffic signal, in violation of Vehicle and Traffic Law §§ 1110(a) and 1111(d)(1) … . Lanicci v Hansen, 2017 NY Slip Op 06168, Second Dept 8-16-17

NEGLIGENCE (PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS  (PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT RAN A RED LIGHT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department determined a question of fact precluded defendant-abutting-property-owner’s (51 Remsen’s] motion for summary judgment in this sidewalk slip and fall case. The NYC Administrative Law imposed the burden of keeping the sidewalk safe on the abutting property owner, but the curb was excluded from the property owner’s responsibility. Plaintiff testified there was a gap between the curb and the sidewalk:

Administrative Code of the City of New York § 7-210(a) imposes a duty on “the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition,” and provides that the owner of said real property “shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.” “Sidewalk” is defined as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians” … .

Here, the Supreme Court properly denied the motion of 51 Remsen for summary judgment dismissing the complaint and all cross claims insofar as asserted against it…. 51 Remsen’s expert opined that while the sidewalk was in good condition, set properly, and free of tripping defects, the curb was “problematic” because it did not meet City Department of Transportation height regulations. The plaintiff, however, testified at his deposition that there was a “[l]ittle gap” between the curb and the sidewalk. Viewing the evidence in the light most favorable to the plaintiff as the nonmovant …, 51 Remsen failed to eliminate all triable issues of fact regarding whether it had a duty to maintain the area of the plaintiff’s fall, and whether the alleged dangerous sidewalk condition, i.e., an improper setback from the curb, was attributable to its negligence and contributed to the plaintiff’s fall … . Gelstein v City of New York, 2017 NY Slip Op 06064, Second Dept 8-9-17

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NEGLIGENCE (SLIP AND FALL, SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))

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QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT).

The Second Department determined there was a question of fact whether a steel plate (covering a pole vault pit) unreasonably increased the risk of injury for high school football players. Plaintiff was tackled and struck the steel plate, which was several feet from the sideline:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity 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'”… . “Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks”… . Thus, “[a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … .

Here, the Supreme Court properly determined that the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The defendants failed to eliminate a triable issue of fact as to whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the participants … . Deserto v Goshen Cent. Sch. Dist., 2017 NY Slip Op 06058, Second Dept 8-917

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSUMPTION OF RISK,  QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/ASSUMPTION OF RISK (EDUCATION-SCHOOL LAW, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/FOOTBALL (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT)) 

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MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT).

The Second Department determined the defendant’s (Queens Ballpark’s) motion to dismiss this slip and fall action, based on documentary evidence, was properly denied. The documents did not conclusively establish that defendant did not create the condition which caused the sidewalk slip and fall, and did not establish that had not assumed the landowner’s responsibility to maintain a safe sidewalk by the terms of the lease:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk[] . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” (id. § 7-210[b]). “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party”… . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the documentary evidence submitted by Queens Ballpark failed to utterly refute the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law … . Further, Queens Ballpark failed to establish conclusively that the plaintiff had no cause of action … . In her complaint, the plaintiff alleged that Queens Ballpark created the alleged defect in the sidewalk, and that Queens Ballpark was liable pursuant to Administrative Code § 7-210 for failing to maintain the sidewalk in a reasonably safe manner. Queens Ballpark’s evidence, namely, excerpts from its lease of the parking lot, photographs of the sidewalk, and an affidavit from the Executive Director of Ballpark Operations for Queens Ballpark, did not address whether Queens Ballpark created the alleged defect, or whether Queens Ballpark had entirely displaced the landowner’s duty to maintain the sidewalk such that Queens Ballpark could be held liable to the plaintiff under Administrative Code § 7-210 … . Torres v City of New York, 2017 NY Slip Op 06096, Second Dept 8-9-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SLIP AND FALL (SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS,  MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))

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DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment was properly granted. Plaintiff, a student living in defendant’s on-campus housing, was injured when a globe from an overhead light fell on her. The defendant college demonstrated it did not created the dangerous condition and did not have actual or constructive notice of the condition:

The plaintiff was a student at the defendant, Long Island University, and resided at its on-campus housing facility in Brooklyn. During the evening of November 5, 2010, a glass globe fell from a ceiling lighting fixture in the plaintiff’s room onto her head. The plaintiff subsequently commenced this action against the defendant to recover damages for personal injuries. Following discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the condition that allegedly caused the plaintiff’s injuries or have actual or constructive notice of it … . Williamson v Long Is. Univ., 2017 NY Slip Op 06100, Second Dept 8-9-17

 

NEGLIGENCE (DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT))

NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT).

The Second Department determined the defendants demonstrated they did not own, occupy or control the area where plaintiff slipped and fell. Therefore the defendants owed no duty of care to the plaintiff:

“To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff” … . Where there is no duty of care owed by the defendant to the plaintiff, there can be no breach, and thus, no liability can be imposed upon the defendant … . Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property… . The existence of one or more of these elements is sufficient to give rise to a duty of care… . Where none is present, “[generally] a party cannot be held liable for injuries caused by the allegedly defective condition” … .

Here, the defendants established, prima facie, that they did not owe a duty to the plaintiff by demonstrating that they did not own, occupy, or control the area where the subject accident occurred, and thus, that they did not have a duty to maintain the staircase on the date of the accident. Donatien v Long Is. Coll. Hosp., 2017 NY Slip Op 06061, Second Dept 8-9-17

 

NEGLIGENCE (SLIP AND FALL, NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))/SLIP AND FALL (NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))/DUTY OF CARE (SLIP AND FALL, NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))

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PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff alleged that he fell off the edge of a service ramp in an area where trucks were unloaded. The plaintiff was unable to raise a question of fact about whether the ramp was negligently designed or maintained. There were no building code or other safety code provisions which were violated, or even applicable:

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Defendants’ expert report stated that the Building Code applicable to the premises, which was enacted in 1968 … , was silent concerning the components of a loading dock, delivery truck parking, material loading and unloading, and in regard to an access ramp between the truck parking floor and the top of the loading dock. As a result, the expert concluded, the ramp did not violate the Building Code. The expert also concluded that because the service ramp was not part of the required egress from the loading dock area, those parts of the Building Code applicable to “Means of Egress” did not apply.

Based on his conclusion that the Building Code did not contain sections specifically applicable to the instant facts, defendants’ expert reviewed the standards promulgated by OSHA. He concluded, however, that no section of OSHA applied to the instant facts. He also found that National Fire Protection Agency “Life Safety Code” did not apply to the instant facts. Defendants’ expert opined that the portion of the curb of the ramp where plaintiff was alleged to have tripped was not a foreseeable pedestrian path, since it runs parallel, not across the path of pedestrians walking up and down the ramp. He noted that the use of bright yellow paint to alert pedestrians to the presence of walkway conditions was proper and in compliance with the American Society for Testing and Materials. Overall, defendants’ expert concluded that plaintiff had not cited to any valid authority in support of his contention that the ramp caused the accident, and established that the ramp did not violate any standards referenced by plaintiff’s expert in his expert exchange.

In opposition, plaintiff failed to raise a triable issue of fact as to any negligence on the part of defendant … . Schmidt v One N.Y. Plaza Co. LLC, 2017 NY Slip Op 06047, First Dept 8-8-17

 

NEGLIGENCE (SLIP AND FALL, RAMP, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, BUILDING AND SAFETY CODES, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/SLIP AND FALL (RAMP, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/BUILDING CODES (SLIP AND FALL, RAMPS, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/SAFETY CODES (SLIP AND FALL, RAMPS., PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))

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