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MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff’s action for negligent maintenance of a drainage system, causing flooding, properly survived summary judgment. The court noted that no cause of action lies against a municipality for negligent design of a drainage system. The court further noted that a nuisance cause of action should have been dismissed as duplicative of the negligent maintenance cause of action:

To the extent the plaintiff contends that the Village was negligent in failing to improve or renovate the drainage system, dismissal of that cause of action was properly directed. Evidence as to the Village’s alleged failure to undertake improvements or renovations to the facilities related only to the design of the system, for which the Village may not be held liable … .

However, the Village failed to satisfy its prima facie burden of eliminating all triable issues of fact as to whether it negligently maintained the culvert and drainage system. * * *

A defendant is subject to liability for a private nuisance if the defendant’s conduct is a legal cause of the invasion of an interest in the private use and enjoyment of land, and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities … . … A nuisance based on negligence is but a single wrong, whether characterized as negligence or nuisance … , and the plaintiff may recover only once for harm suffered, regardless of how the causes of action are denominated … . Since the complaint alleges a cause of action for negligent maintenance, the Supreme Court should have granted that branch of the Village’s motion which was for summary judgment dismissing the cause of action alleging nuisance as duplicative of the cause of action alleging negligent maintenance … . Trulio v Village of Ossining, 2017 NY Slip Op 05993, Second Dept 8-2-17

MUNICIPAL LAW (DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NEGLIGENCE (MUNICIPALITY, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NUISANCE (MUNICIPAL LAW, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))

QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT.

The Third Department determined plaintiff had raised a question of fact about a nonnegligent explanation for his colliding with the rear of defendant’s car. Plaintiff was riding a motorcycle when the car in front of him (driven by Daunais) suddenly swerved to the left and plaintiff struck the defendant’s car, which was in front of Daunais. Daunais alleged the defendant suddenly stopped dead in the road and Daunais swerved to the left to avoid colliding with defendant:

It is undisputed that defendant has satisfied his initial summary judgment burden inasmuch as “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle” … . The burden therefore shifted to plaintiff to demonstrate a nonnegligent explanation for the collision … . As relevant here, “[e]vidence that the vehicle which was rear-ended came to a sudden and abrupt stop will defeat summary judgment” … .

Although defendant contends that he was attempting to turn into a driveway when plaintiff rear-ended him and that he had appropriately slowed his vehicle and activated his turn signal prior to turning, Daunais contradicted him, testifying that defendant “stopped dead in the road.” Daunais averred that he then “took a chance” and swerved left into the oncoming traffic lane to avoid colliding with defendant’s vehicle. Plaintiff explained that he was unable to do the same because another motorcyclist was by then blocking him from safely veering to the left. Other motorcyclists traveling with plaintiff also testified that they observed Daunais’ van swerve into the oncoming traffic lane to reveal defendant’s vehicle stopped in the road. This proof, when viewed “in the light most favorable to plaintiff and affording him the benefit of every favorable inference”… , demonstrates a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision … . Bell v Brown, 2017 NY Slip Op 05898, 3rd Dept 7-27-17

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR-END COLLISION, QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)/TRAFFIC ACCIDENTS (REAR-END COLLISION, QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)/REAR-END COLLISION (QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT)

QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT.

The Second Department, reversing Supreme Court, in the context of a legal malpractice action, determined plaintiff had raised a question of fact whether the property owner created or exacerbated the dangerous condition by snow removal efforts. Plaintiff alleged she fell while stepping over a pile of snow:

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff’s deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts … . In particular, in light of the plaintiff’s deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to “lift [her] leg” to “cross” over, causing her to slip and fall. Accordingly, that branch of the defendant’s motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied. Balan v Rooney, 2017 NY Slip Op 05801, 2nd Dept 7-26-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT)/SLIP AND FALL (QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT)

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THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was sufficient circumstantial evidence of the cause of plaintiff’s fall down a set of stairs to survive summary judgment. The plaintiff alleged there was inadequate lighting:

The defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the plaintiffs could not identify the cause of the injured plaintiff’s fall. “[T]hat a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury”… . Here, the defendant failed to eliminate triable issues of fact as to whether the alleged inadequate lighting condition for the subject staircase was a proximate cause of the injured plaintiff’s fall… . Such a finding, given the eyewitness account of the circumstances surrounding the fall and the injured plaintiff’s own statement just before the fall, warning his companions to “watch out, it is dark, you cannot see,” would be based on logical inferences, not speculation … . Pajovic v 94-06 34th Rd. Realty Co., LLC, 2017 NY Slip Op 05831, 2nd Dept 7-25-17

NEGLIGENCE (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/EVIDENCE (SLIP AND FALL, THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the golf-course sprinkler-valve-hole, which caused plaintiff’s decedent to trip and fall, was concealed or unreasonably increased the risks inherent in the golf course, thereby overcoming the assumption of risk doctrine. Supreme Court should not have excluded the photographs of the area where plaintiff fell. Contrary to Supreme Court’s reasoning, the person who authenticated the photographs was a not a notice witness who should have been named prior to the filing of the note of issue:

… [P]laintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course … In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion. Contrary to the court’s determination, the plaintiff was not required to identify John Flower as a notice witness prior to filing the note of issue. The disclosure requirements of CPLR 3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action” … . Here, Flower did not possess information material and necessary to the prosecution or defense of the action. In his affidavit, Flower merely authenticated certain photographs, most of which had been submitted by the decedent with his notice of claim prior to his death. Consequently, the court should not have rejected Flower’s affidavit and the attendant photographs on the ground that the plaintiff had failed to identify Flower as a notice witness prior to the filing of the note of issue. As a related matter, the court improperly rejected the affidavit of the plaintiff’s expert on the ground that he relied upon the photographs. Further, the court should not have rejected the two remaining affidavits from individuals who were disclosed to the defendant prior to the filing of the note of issue. MacIsaac v Nassau County, 2017 NY Slip Op 05814, 2nd Dept 7-25-17

NEGLIGENCE (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)CIVIL PROCEDURE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/EVIDENCE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/ASSUMPTION OF RISK (GOLF, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/GOLF (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/PHOTOGRAPHS (EVIDENCE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/NOTICE WITNESS (CIVIL PROCEDURE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)

PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether defendant had actual or or constructive notice of the black ice which caused plaintiff to fall. There was precipitation earlier on the day plaintiff fell:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the black ice that allegedly caused the plaintiff to fall developed as a result of precipitation that fell on the day of the accident, and that the defendant did not create or have actual or constructive notice of the existence of the black ice… . Contrary to the plaintiff’s contention, the Supreme Court properly considered her deposition transcript in determining the motion … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the black ice was the product of a prior storm … . Vozzo v Fairfield Westlake Sq., LLC, 2017 NY Slip Op 05868, 2nd Dept 7-25-17

NEGLIGENCE (SLIP AND FALL, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT)

QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this rear-end collision case should not have granted. Although plaintiff and defendant alleged defendant’s car was stopped behind  plaintiff’s car before defendant’s car was pushed into plaintiff’s car after defendant’s car was struck from behind by Vitale’s car, Vitale’s affidavit alleged defendant’s car collided with plaintiff’s car before Vitale collided with defendant. Therefore there was a question of fact whether defendant was comparatively negligent:

Here, in support of their motion, the defendants submitted, inter alia, a transcript of the deposition testimony of the plaintiff driver and the defendant driver. The plaintiff driver testified at his deposition that the vehicle that he was operating had been stopped for a red traffic light for about 30 seconds when the defendants’ vehicle struck it in the rear. Prior to the accident, the plaintiff driver had observed the defendants’ vehicle stop behind his vehicle without touching it. The defendant driver attested that the vehicle that he was operating was stopped four feet behind the plaintiffs’ stopped vehicle when it was struck in the rear by Vitale’s vehicle. As a result, the defendants’ vehicle was propelled forward into the rear of the plaintiffs’ vehicle. Under the circumstances, the defendants met their initial burden as the movants by demonstrating, prima facie, that their stopped vehicle was propelled forward into the plaintiffs’ vehicle after their vehicle was struck in the rear by a third vehicle, and that the defendant driver was not at fault in the happening of the accident … .

In opposition to the motion, the plaintiffs submitted, inter alia, Vitale’s affidavit. Vitale’s account of the accident differed from the parties’ account of the accident, and it raised triable issues of fact as to whether the defendants’ vehicle struck the plaintiffs’ vehicle before Vitale’s vehicle struck the defendants’ vehicle and whether the defendant driver was comparatively at fault … .Hasan Sharif Williams v Sala, 2017 NY Slip Op 05762, 2nd Dept 7-19-17

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR-END COLLISIONS, QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/REAR-END COLLISIONS (QUESTION OF FACT WHETHER DEFENDANT DRIVER WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant raised a question of fact whether the driver of the car in which plaintiff was a passenger was comparatively negligent. Therefore plaintiff passenger’s summary judgment motion should not have been granted:

“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” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide … . In rear-end accident cases, just because a plaintiff is a passenger in the lead vehicle, the liability of the rear vehicle is not automatically established. Such a plaintiff moving for summary judgment on the issue of liability “must meet the twofold burden of establishing that he or she was free from comparative fault and was, instead, an innocent passenger, and, separately, that the operator of the rear vehicle was at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, . . . summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger” …

Here, the injured plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her affidavit which demonstrated that she was not negligent in the happening of the accident, as she was an innocent passenger, and that the actions of the defendant driver, Welna, were the sole proximate cause of the accident… . However, in opposition, the defendants raised a triable issue of fact as to whether Nicole Ortiz [the lead driver] contributed to the happening of the accident by the submission of Welna’s affidavit, which alleged that she violated Vehicle and Traffic Law § 1163 by stopping abruptly in the intersection to turn left without signaling … . Ortiz v Welna, 2017 NY Slip Op 05744, 2nd Dept 7-19-17

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/TRAFFIC ACCIDENTS, REAR END COLLISIONS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/COMPARATIVE NEGLIGENCE (REAR END COLLISIONS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/REAR END COLLISIONS (PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/VEHICLE AND TRAFFIC LAW (REAR END COLLISIONS, LEAD DRIVER’S ALLEGED FAILURE TO SIGNAL AND SUDDEN STOP RAISED A QUESTION OF FACT, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT) 

STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT.

The Second Department determined defendant Home Depot’s motion for summary judgment in this slip and fall case was properly denied. The storm in progress rule did not apply because the precipitation stopped 12 hours before the fall, and the temperature dipped below freezing 10 hours before the fall:

Home Depot failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that there was a storm in progress at the time of the injured plaintiff’s accident or that it did not have a reasonable opportunity after the cessation of the storm to remedy the allegedly dangerous condition … . The climatological data submitted by Home Depot showed that there was an accumulation of about three inches of snow, which had ceased to fall by 7:00 p.m. on January 18, 2004, about 12 hours prior to the accident, and that the temperature dropped to below freezing by 9:00 p.m., about 10 hours prior to the accident, and remained below freezing through the time of the accident. Thus, Home Depot failed to establish, prima facie, that it did not have a reasonable time to ameliorate the snow and ice condition in the parking lot … . Morris v Home Depot USA, 2017 NY Slip Op 05717, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)/SLIP AND FALL (STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)/STORM IN PROGRESS (STORM IN PROGRESS RULE DID NOT APPLY, STORM STOPPED 12 HOURS BEFORE THE SLIP AND FALL 2ND DEPT)

QUESTION OF FACT WHETHER HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was a question of fact whether a latent defect was actionable under the doctrine of res ipsa loquitur. An outside step flipped up when plaintiff stepped on it, causing plaintiff to fall. The underside of the step was rotten and the nails didn’t hold. Apparently the condition of the step was not visible until the underside was exposed:

… [P]laintiff raised a triable issue of fact as to the application of the doctrine of res ipsa loquitur … . “Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event” … . A plaintiff makes a prima facie case of negligence under res ipsa loquitur by establishing three elements: ” (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff'” … . Res ipsa loquitur does not create a presumption of negligence; rather, it is a rule of circumstantial evidence that permits, but does not require, the jury to infer negligence … ​

Here, the defendant contends that the plaintiff failed to raise an issue of fact as to the applicability of the doctrine because the homeowner did not have exclusive control over the deck steps. However, the concept of exclusive control does not require rigid application, since the general purpose of the element is to indicate from the circumstances that it was probably the negligence of the defendant, rather than another, which caused the accident … . Although there was evidence that other guests used the deck steps, the steps were located on private residential property, not an area open to the general public … . Under these circumstances, the plaintiff raised a triable issue of fact as to the homeowner’s exclusive control of the deck step and whether an inference of negligence is warranted under the doctrine of res ipsa loquitur … . Marinaro v Reynolds, 2017 NY Slip Op 05714, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/SLIP AND FALL (QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/LATENT DEFECT  (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/RES IPSA LOQUITUR (SLIP AND FALL, LATENT DEFECT, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)

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