Negligence – Page 232 – New York Appellate Digest

QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT.

The Third Department, reversing Supreme Court, determined plaintiff had raised a question of fact about defendant’s (North’s) comparative fault in this intersection collision case, despite plaintiff’s pleading guilty to failure to yield the right of way. Therefore North’s motion for summary judgment should not have been granted:

In light of the conflicting accounts as to how the accident occurred, we conclude that Supreme Court erred in granting summary judgment in favor of North … . Furthermore, although plaintiff failed to yield the right-of-way and was convicted of violating Vehicle and Traffic Law § 1141, such finding “does not preclude the existence of a fact issue as to [North’s] comparative fault” …. Given plaintiff’s testimony regarding North’s distance from the subject intersection, the absence of other cars in front of North as she approached plaintiff and the evidence that North was “coming fast,” a question of fact exists regarding North’s comparative fault and whether she could have used reasonable care to avoid the collision … . Accordingly, viewing the evidence in a light most favorable to plaintiff, summary judgment in favor of North on the issue of liability should have been denied. London v North, 2017 NY Slip Op 05636, 3rd Dept 7-13-17

NEGLIGENCE (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/TRAFFIC ACCIDENTS (QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT)

July 13, 2017

Negligence

DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant property owners did not establish the configuration of the area at the top of the basement stairs and the absence of a handrail were not dangerous conditions and were not proximate causes of plaintiff’s fall down the stairs. Defendants’ summary judgment motion should not have been granted:

The plaintiff alleged that the size and the configuration of the landing at the top of the basement staircase constituted a dangerous condition since there was insufficient room to safely close the bedroom door. The plaintiff further alleged that the defendants were negligent in failing to provide a handrail on either side of the staircase. The defendants moved for summary judgment dismissing the complaint, arguing that a dangerous condition did not exist and that, in any event, the negligence alleged in the complaint was not a proximate cause of the accident. In support of their motion, the defendants submitted, inter alia, their own deposition testimony and that of the plaintiff. …

The owner of property has a duty to maintain his or her property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … .”[An] owner, however, has no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous” … . “The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury” … . Lee v Acevedo, 2017 NY Slip Op 05586, 2nd Dept 7-12-17

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

July 12, 2017

Immunity, Municipal Law, Negligence

COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined that the county had not sufficiently demonstrated a deliberative decision-making process preceding the installation of a particular type of roadway guard rail. It was alleged plaintiff’s decedent’s car was launched 90 feet after striking the sloping end of the guard rail. The county’s summary judgment motion, based upon qualified immunity, should not have been granted:

We conclude that the County failed to meet its initial burden of establishing its entitlement to summary judgment based on qualified immunity … . In particular, the County failed to establish that the decision to change the end assembly of the guide rail from a Type I to a Type II end assembly was “the product of a deliberative decision-making process, of the type afforded immunity from judicial interference”… . Rather, the record reflects that the decision to change the guide rail end assembly was made after Phelps [the guard rail installer] conducted a walk-through and learned that the owners of a hay field needed a “field drive” to allow them to access County Route 41. Although the County submitted evidence that the change order completed by Phelps was signed by FRA [the engineers], there is no showing by the County that there was prior input from FRA regarding the change and, importantly, no analysis to support the decision for the change. Moreover, although the County contended on its motion that it followed the requisite standards of the New York State Department of Transportation, we note that the County’s expert erroneously combined the criteria for two separate uses of Type II end assemblies into one standard. Morris v Ontario County, 2017 NY Slip Op 05533, 4th Dept 7-7-17

NEGLIGENCE (TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/MUNICIPAL LAW (TRAFFIC ACCIDENTS, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/IMMUNITY (MUNICIPAL LAW, HIGHWAY DESIGN, TRAFFIC ACCIDENTS, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/TRAFFIC ACCIDENTS (MUNICIPAL LAW, HIGHWAY DESIGN, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/HIGHWAY DESIGN (MUNICIPAL LAW, TRAFFIC ACCIDENTS, IMMUNITY, COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

July 7, 2017

Immunity, Negligence

QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, in a full-fledged opinion by Justice Curran, over a two-justice dissent, reversing Supreme Court, determined defendant landowner was not entitled, as a matter of law, to immunity from a personal injury suit under the “recreational use immunity” provision of the General Obligations Law. Therefore the landowner’s motion for summary judgment should not have been granted. Plaintiff was injured when the all terrain vehicle (ATV) he was driving struck a pothole on defendant’s dirt road. Pursuant to the General Obligations Law, if the road were deemed suitable for recreational use the landowner would be immune from suit. The majority concluded the road was used for two-way traffic to access homes. Therefore a question of fact had been raised about whether the road was suitable for recreational use within the meaning of the statute:

The road where the accident occurred is the sole means of access to Walker Lake Ontario Road for three homes. Defendant maintains the road by scraping and re-leveling it almost every year. It is wide enough to accommodate one car traveling in each direction. While located in a rural area, the two-lane private road is used for residential purposes, including at times for school bus access. Thus, the physical characteristics of the road are residential, as opposed to recreational in nature … . * * *

… [T]he portion of property where plaintiff fell is not the type of property that the Legislature intended to cover under General Obligations Law § 9-103… . … [C]ourts should ask whether the property “is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in the statute. In other words, is it a type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation?” … . Application of the statutory immunity to the road at issue would lead to its application to potentially any road in a rural area, which is inconsistent with the idea that this statute is in derogation of the common law and should therefore be narrowly construed … .

FROM THE DISSENT:

We respectfully dissent inasmuch as we conclude that defendant, the property owner, is entitled to immunity from liability under the recreational use statute (see General Obligations Law § 9-103). In particular, we disagree with the majority’s conclusion that the property at issue is not suitable for the recreational activity in which plaintiff was engaged at the time of his accident, i.e., operation of an all-terrain vehicle (ATV). We would therefore affirm the order granting defendant’s motion for summary judgment dismissing the complaint. Cummings v Manville, 2017 NY Slip Op 05530, 4th Dept 7-7-17

NEGLIGENCE (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/IMMUNITY (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/GENERAL OBLIGATIONS LAW (NEGLIGENCE, RECREATIONAL IMMUNITY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/RECREATIONAL USE OF PROPERTY (GENERAL OBLIGATIONS LAW, RECREATIONAL USE OF PROPERTY, QUESTION OF FACT WHETHER THE ROAD ON WHICH PLAINTIFF WAS DRIVING HIS ATV WHEN HE WAS INJURED WAS SUITABLE FOR RECREATIONAL USE, SUMMARY JUDGMENT FINDING THE LANDOWNER WAS IMMUNE FROM SUIT UNDER THE RECREATIONAL USE IMMUNITY PROVISION OF GENERAL OBLIGATIONS LAW 9-103 SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

July 7, 2017

Negligence

INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT.

The Fourth Department, over a dissent, determined the initial accident was not the proximate cause of the third accident in which plaintiff was injured. In the initial accident a car driven by Sheehan struck a barrier. The Sheehan car was left in the roadway. Plaintiff, who was not injured, got out of the Sheehan car and went to a safe area. The Sheehan car was then struck by another car driven by a non-party. Plaintiff went back to the accident scene where he was injured when there was yet another collision involving a third car driven by Gilray. The majority held that the initial accident created a condition for the accident which injured plaintiff, but was not the proximate cause of that accident:

Sheehan’s negligence, if any, ” did nothing more than to furnish the condition or give rise to the occasion by which [plaintiff’s] injury was made possible and which was brought about by the intervention of a new, independent and efficient cause’ ” … . Prior to the Gilray accident, the situation resulting from the first accident “was a static, completed occurrence” with plaintiff and all of the passengers of Sheehan’s vehicle safely off the roadway … . The Gilray accident arose from a “new and independent cause and not as [the] consequence of [Sheehan’s] original act[]” … . “The risk undertaken by plaintiff” in returning to the roadway was created by himself … .

FROM THE DISSENT:

Under the circumstances of this case, a factfinder could reasonably conclude that a foreseeable consequence of Sheehan’s negligence in losing control, striking the barrier, and leaving the disabled vehicle obstructing the left lane of a divided roadway without activating the flashing hazard lights at night is that motorists, unable to see the vehicle at they approached, would strike it… . In determining that the situation resulting from Sheehan’s accident was a static, completed occurrence prior to Gilray’s collision, the majority fails to account for the critical facts that the disabled vehicle was not moved safely off the roadway and instead remained in a position of peril obstructing the left lane without its flashing hazard lights activated, and that plaintiff was injured while positioned near the disabled vehicle … . Plaintiff’s positioning of himself in the area of the disabled vehicle where he was susceptible to further harm is also foreseeable. The fact that plaintiff, as a passenger involved in a vehicular accident, would leave a place of safety to return to the vehicle to speak with a responding officer—particularly where, as here, plaintiff was best positioned to provide the officer with information given the condition and preoccupation of Sheehan and the other passengers—is “an entirely normal or foreseeable consequence of the situation created by [Sheehan’s] negligence”… . Serrano v Gilray, 2017 NY Slip Op 05523, 4th Dept 7-7-17

NEGLIGENCE (TRAFFIC ACCIDENTS, INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT)/TRAFFIC ACCIDENTS (PROXIMATE CAUSE, INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT)/PROXIMATE CAUSE (TRAFFIC ACCIDENTS, INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT)

July 7, 2017

Civil Procedure, Evidence, Negligence, Products Liability

DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing this asbestos-related products liability action should not have been granted. Defendants merely pointed to gaps in plaintiffs’ proof and did not submit prima facie proof demonstrating their products were not the source of asbestos exposure. Therefore summary judgment should have been denied without any reference to the opposing papers:

In February 2015, plaintiff Eileen A. O’Connor was diagnosed with pleural mesothelioma. Alleging that her illness stemmed from exposure to equipment containing asbestos while working at the Westchester County Department of Labs and Research (hereinafter WCDLR) from approximately 1975 to 1979, O’Connor, along with her husband, derivatively, commenced this personal injury action in 2015 against, among others, defendants Fisher Scientific Company, LLC, Thomas Scientific, Inc. and VWR International, LLC (hereinafter collectively referred to as defendants) … . * * *

… [T]he proof submitted by defendants, respectively, failed to establish that they did not sell asbestos-containing products to WCDLR during the time that O’Connor was employed or that O’Connor was not exposed to any such products … . * * *

… [D]efendants failed to establish, prima facie, that they could not have caused O’Connor’s asbestos-related illness… . Fisher Scientific’s lack of documentation from the 1970s does not establish that it did not sell asbestos-containing products to WCDLR. Otherwise, defendants, respectively, “merely pointed to perceived gaps in plaintiff[s’] proof, rather than submitting evidence showing why [plaintiffs’] claims fail” … . O’Connor v Aerco Intl., Inc., 2017 NY Slip Op 05487, 3rd Dept 7-6-17

PRODUCTS LIABILITY (DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/SUMMARY JUDGMENT (PRODUCTS LIABILITY, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EVIDENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/NEGLIGENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

July 6, 2017

Immunity, Municipal Law, Negligence

CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT.

The Second Department determined the city defendants did not owe a duty of care to plaintiff’s decedent (Rennix) despite the misconduct of a city employee. The city employee, an emergency medical technician (EMT) named Jackson, was in a restaurant when a restaurant employee collapsed. Because Jackson was not supposed to be on a break, she did not attempt to help plaintiff’s decedent, who died before the ambulance arrived. Rennix was pregnant and her baby also died. Because there was no special relationship between the city and plaintiff’s decedent, the city was not liable:

A municipal emergency response system is a governmental function, and thus where an emergency medical technician is alleged to have been negligent while acting in this governmental capacity, the municipality cannot be held liable unless it owed a “special duty” to the injured party … . There are three recognized situations in which a special duty may arise: “(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … .

The plaintiffs contend that the first category applies to the circumstances here, and a special duty arose from Jackson’s violation of Penal Law § 195.00(2), which criminalizes official misconduct. * * *

Even assuming the plaintiffs could establish that Jackson was guilty of misconduct, the violation of Penal Law § 195.00(2) does not give rise to a special duty so as to impose tort liability. For a special duty to arise from the breach of a statutory duty, the governing statute must authorize a private right of action … . A private right of action “may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme”… .

Here, the plaintiffs’ claim fails at the first step of the analysis, as Rennix was not of a class for whose particular benefit the statute was enacted. Rennix v Jackson, 2017 NY Slip Op 05471, 2nd Dept 7-5-17

NEGLIGENCE (MUNICIPAL LAW, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/MUNICIPAL LAW (NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)

July 5, 2017

Civil Procedure, Negligence, Toxic Torts

TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT.

The Second Department determined the trial judge’s responses to an inconsistent verdict were inadequate and ordered a new trial , granting defendant’s motion to set aside the verdict. The jury, in this lead-paint poisoning case, found that the defendant property owner was negligent but that the negligence was not the proximate cause of the injury. However the jury went on to award plaintiff $250,000 in damages. The judge sent the jury back, instructing them that they could not award damages unless they found the negligence was the proximate cause of the injuries. The judge did not inform the jury they could adhere to their original finding on proximate cause. The jury returned a second verdict, this time finding defendant’s negligence was the proximate cause of the injuries:

Here, the jury’s first verdict was internally inconsistent when it awarded damages to the plaintiff despite finding that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries … . Thus, the Supreme Court properly directed the jury to reconsider the verdict. Notwithstanding, the record supports the conclusion that the second round of deliberations resulted in an unreliable verdict … . Specifically, the court failed to provide clear instructions to the jury regarding how to proceed with respect to the interrogatories concerning damages if it again found that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries. This failure may have induced the jury to decide, out of confusion or frustration, to simply forgo the issue altogether by finding that the defendant’s negligence was a substantial factor in causing the plaintiff’s injuries. Moreover, the court’s response to the jury note to simply follow the instructions on the new verdict sheet was inadequate. ” Even after reconsideration by the jury, a trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors'” … . Under these circumstances, the court should have granted that branch of the defendant’s motion which was to set aside the second jury verdict and directed a new trial … . Cleveland v Djeu, 2017 NY Slip Op 05417, 2nd Dept 7-5-17

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/TOXIC TORTS (LEAD PAINT, MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/LEAD PAINT (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/VERDICT, MOTION TO SET ASIDE (TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/JURY INSTRUCTIONS (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)

July 5, 2017

Evidence, Negligence

QUESTION OF FACT WHETHER PLAINTIFF’S LANE CHANGE CONSTITUTED A NON-NEGLIGENT EXPLANATION FOR THIS REAR-END COLLISION, PLEA TO FOLLOWING TOO CLOSELY IS NEGLIGENCE PER SE ONLY IF THE VIOLATION IS UNEXCUSED.

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted. Defendant raised a question of fact whether the cause of the accident was plaintiff’s sudden lane change. The fact that defendant pled guilty to a traffic violation, following too closely, would constitute negligence per se only if unexcused:

Plaintiff … submitted the deposition testimony of defendant, who stated that he did not see plaintiff’s vehicle until immediately before the accident, when plaintiff moved from the middle lane to the right lane and slammed on his brakes in an instant or quickly, i.e., plaintiff’s action was not a slow and cautious movement to which defendant could react … . Defendant explained that he had not seen plaintiff’s vehicle before the collision because he had been paying attention to the road in front of him and, when plaintiff engaged in his maneuver (changed lanes), defendant slammed on his brakes and tried to steer into the shoulder to avoid the accident, which caused the back end of the trailer that was attached to the truck to swing out, and the left corner of the truck struck plaintiff’s vehicle. Based on the foregoing, we conclude that plaintiff “failed to meet his initial burden of establishing his entitlement to judgment as a matter of law inasmuch as he submitted the deposition testimony in which [defendant] provided a nonnegligent explanation for the collision,” namely, that plaintiff caused the collision when he suddenly changed lanes in response to slowing traffic in the middle and left lanes of the highway and abruptly stopped in the right lane in front of defendant … .

… [W]e reject plaintiff’s contention that he established defendant’s negligence as a matter of law by submitting evidence of defendant’s guilty plea of following too closely (Vehicle and Traffic Law § 1129 [a]). “It is well settled that the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se’ ” … . “Rather, it is the unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se’ ” … . Here, upon defendant’s explanation, the trier of fact could excuse the violation on the ground that plaintiff cut in front of defendant and immediately stopped, thereby failing to provide defendant with adequate time to create the “reasonable and prudent” distance between the vehicles that is required by the statute … . Gardner v Chester, 2017 NY Slip Op 05336, 4th Dept 6-30-17

June 30, 2017

Civil Procedure, Negligence

CONCLUSORY ALLEGATIONS THAT THE LANDLORD WAS AN OWNER OF OR A PARTNER IN THE BUSINESS WHICH LEASED THE PREMISES WHERE PLAINTIFF’S DECEDENT WAS INJURED SHOULD NOT HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department, modifying Supreme Court, over a dissent, determined conclusory allegations that the landlord (Miranda) was an owner of the business (Molly’s Pub)) in which plaintiff’s decedent was injured were insufficient to survive a motion to dismiss in this wrongful death action:

We agree with Miranda … that the court erred in denying his motion to dismiss the complaint against him pursuant to CPLR 3211 (a) (7), and we therefore modify the order accordingly. The conclusory allegations in the complaint alleging liability on the same grounds as those alleged against the [pub] defendants based upon the alleged ownership or partnership interest in the operation of Molly’s Pub are insufficient to state a cause of action against him. … Miranda submitted the lease, which provides that he shall not be liable for injury to persons or for any defects in the building. He also submitted an affidavit in which he stated that he has no ownership interest in Molly’s Pub, that did he not exercise any control over the operation of Molly’s Pub … , that he had no actual or constructive notice of a dangerous or defective condition on the premises and that he was “merely an out-of-possession landlord.” …

‘[W]hile it is axiomatic that a court must assume the truth of the complaint’s allegations, such an assumption must fail where there are conclusory allegations lacking factual support . . . Indeed, a cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations” … . Here, plaintiff failed to allege any facts to support his allegation that Miranda had an ownership or partnership interest in the operation of Molly’s Pub. Sager v City of Buffalo, 2017 NY Slip Op 05340, 4th Dept 6-30-17

June 30, 2017

QUESTION OF FACT RE DEFENDANT’S COMPARATIVE FAULT IN THIS INTERSECTION COLLISION CASE, DESPITE PLAINTIFF’S PLEADING GUILTY TO FAILURE TO YIELD THE RIGHT OF WAY 3RD DEPT.

DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

INITIAL ACCIDENT FURNISHED A CONDITION FOR THE SUBSEQUENT ACCIDENT WHICH INJURED PLAINTIFF, BUT WAS NOT THE PROXIMATE CAUSE OF THE SUBSEQUENT ACCIDENT 4TH DEPT.

DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT.

TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT.

QUESTION OF FACT WHETHER PLAINTIFF’S LANE CHANGE CONSTITUTED A NON-NEGLIGENT EXPLANATION FOR THIS REAR-END COLLISION, PLEA TO FOLLOWING TOO CLOSELY IS NEGLIGENCE PER SE ONLY IF THE VIOLATION IS UNEXCUSED.

CONCLUSORY ALLEGATIONS THAT THE LANDLORD WAS AN OWNER OF OR A PARTNER IN THE BUSINESS WHICH LEASED THE PREMISES WHERE PLAINTIFF’S DECEDENT WAS INJURED SHOULD NOT HAVE SURVIVED THE MOTION TO DISMISS.

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