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DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT.

The Second Department, reversing Supreme Court, determined the defendants demonstrated the defective tile which caused plaintiff’s slip and fall constituted a trivial defect which was not actionable:

“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” … . Here, the evidence submitted by the defendants in support of their motion included photos of the alleged defective condition as identified by the plaintiff, a damaged piece of tile, as well as measurements placing the depression at the damaged tile to be, at most, one-eighth of an inch. These photographs, along with the plaintiff’s description of the time, place, and circumstance of the injury, established, prima facie, that the alleged defect was trivial as a matter of law, and therefore, not actionable … . Kavanagh v Archdiocese of the City of N.Y., 2017 NY Slip Op 05711, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, TRIVIAL DEFECT, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)/SLIP AND FALL (TRIVIAL DEFECT, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)/TRIVIAL DEFECT (SLIP AND FALL, DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT)

DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendants did not demonstrate the raised brick over which plaintiff allegedly tripped was a trivial defect or an open and obvious defect:

The defendant failed to establish, prima facie, that the alleged defect was trivial as a matter of law. “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 risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of the plaintiff and the Director of Horticulture of the defendant, the affidavit of an expert witness, and two photographs that the plaintiff claimed showed her lying on the walkway shortly after her accident but did not portray the raised brick on which she allegedly fell. Viewed in the light most favorable to the plaintiff as the nonmovant …, the evidence submitted by the defendant failed to eliminate all triable issues of fact as to the dimensions of the alleged defect, and failed to establish that the condition was trivial and, therefore, not actionable … . The defendant also failed to make a prima facie showing that the alleged raised brick was an open and obvious condition that is inherent to the nature of the property and could be reasonably anticipated by those using it … . Furthermore, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the allegedly raised brick … . Chojnacki v Old Westbury Gardens, Inc., 2017 NY Slip Op 05706, 2nd Dept 7-191-17

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/TRIVIAL DEFECT (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/OPEN AND OBVIOUS (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE RAISED BRICK WAS A TRIVIAL DEFECT OR AN OPEN AND OBVIOUS DEFECT IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE 2ND DEPT.

The Second Department determined defendants were properly granted summary judgment in this ice and snow slip and fall case. The defendants demonstrated there was a storm in progress and their snow removal efforts did not create or exacerbate the condition:

” Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . “However, even if a storm is ongoing, once a property owner elects to remove snow or ice, it must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting their deposition testimony and certified weather reports, which demonstrated that there was a storm in progress at the time of the plaintiff’s accident, and that their efforts to prevent ice accumulation neither created a hazardous condition nor exacerbated a natural hazard created by the storm … . Bradshaw v PEL 300 Assoc., 2017 NY Slip Op 05701, 2nd Dept 7-19-17

NEGLIGENCE (DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)/SLIP AND FALL (DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)/STORM IN PROGRESS (SLIP AND FALL, DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE IN THIS SLIP AND FALL CASE)

PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT.

The Third Department, affirming the grant of defendant property owner’s motion for summary judgment in this slip and fall case, determined the area where plaintiff tripped on a piece of pipe was not demonstrated to be an area used as a walkway. Therefore plaintiff’s use of the area as a walkway was not foreseeable:

 “A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition”… . To that end, “the scope of a landowner’s duty is measured in terms of foreseeability” …  Because “[t]he risk reasonably to be perceived defines the duty to be obeyed”… , the issue distills to whether it was foreseeable that plaintiff, despite being provided with established and alternative avenues of ingress and egress from defendant’s firehouse, would instead exit the rear of the structure at night and traverse a sloped, unlit strip of land — located between the firehouse and a row of trees/shrubbery — in order to reach the front parking lot of the firehouse and retrieve his vehicle. Upon reviewing the record as a whole, we are satisfied that defendant met its burden of establishing, as a matter of law, that plaintiff’s means of egress was not reasonably foreseeable and, further, that plaintiff failed to raise a triable issue of fact on this point. Kirby v Summitville Fire Dist., 2017 NY Slip Op 05652, 3rd Dept 7-13-17

NEGLIGENCE (FORESEEABILITY, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)/SLIP AND FALL (FORESEEABILITY, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)/FORESEEABILITY (SLIP AND FALL, PLAINTIFF’S USE OF AN AREA AS A WALKWAY WAS NOT FORESEEABLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED 3RD DEPT)

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)

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)

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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)

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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)

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)

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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)

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