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ALTHOUGH THE FIRST DEPT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT.

The First Department, in a substantial opinion by Justice Acosta, reluctantly affirmed Supreme Court’s dismissal of the dog-injury complaint. Defendant tied his 35 pound dog to an unsecured bicycle rack which weighed five pounds. The dog ran off, dragging the rack. Plaintiff’s leg became tangled in the rack, causing him to fall. The First Department followed the Court of Appeals precedent, which allows a dog-injury suit only on vicious propensity/strict liability grounds. The opinion strongly argued the law should be changed to allow dog-injury suits based upon negligence:

Were we not … constrained … we would … permit plaintiffs to pursue their negligence cause of action. To avoid the harshness of the [Court of Appeals] rule, the recognition of the following exception would be appropriate: A dog owner who attaches his or her dog to an unsecured, dangerous object, allowing the dog to drag the object through the streets and cause injury to others, may be held liable in negligence. In these circumstances, negligence liability would be in keeping with the principles of fundamental fairness, responsibility for one’s actions, and societal expectations … — assuming a jury would deem unreasonable defendant’s failure to ensure that the rack was secured before he tied his dog to it. It is not unreasonable to expect dog owners to restrain their dogs in public unless unleashing them is safe or specifically permitted at certain times and locations, as evidenced by local leash laws (see e.g. 24 RCNY 161.05). However, the Court of Appeals has decided that local leash laws have no bearing on whether liability in negligence ought to attach … , undermining the declared public policy of those localities that have enacted such laws … And although the [Court of Appeals] reasoned that New Yorkers may expect to find unrestrained dogs in public parks … , New Yorkers certainly do not expect to find those dogs running on public roads towing large metal objects behind them. A dog owner who, without observing a reasonable standard of care, attaches his or her dog to an object that could foreseeably become weaponized if the dog is able to drag the object through public areas should not be immune from liability when that conduct causes injury. Scavetta v Wechsler, 2017 NY Slip Op 01985, 1st Dept 3-16-17

ANIMAL LAW (ALTHOUGH THE FIRST DEPARTMENT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT)/DOGS (ALTHOUGH THE FIRST DEPARTMENT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT)/NEGLIGENCE (DOGS, ALTHOUGH THE FIRST DEPARTMENT FELT CONSTRAINED BY COURT OF APPEALS PRECEDENT TO DISMISS THIS DOG INJURY CASE SOUNDING IN NEGLIGENCE, THE COURT FORCEFULLY ARGUED THE LAW SHOULD BE CHANGED TO ALLOW SUCH A SUIT)

QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL.

The First Department determined there was a question of fact whether plaintiff’s slip and fall was caused by excessive wax on the floor:

Defendants established entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she slipped on a floor that was negligently waxed. Defendants submitted evidence showing that the floor was last waxed approximately three months before plaintiff’s fall … . In opposition, plaintiff raised triable issues as to whether “a dangerous residue of wax was present” … . She stated that after she fell, there was wax on her hands and, when she stepped on the waxy area, she saw a “scuff mark” running through a circular area, creating a “sunken stripe through the wax.” Plaintiff slid her foot back and forth on the circular patch, and felt the “accumulated, raised, substance on the floor” move with the pressure of her foot, and these actions were captured on the building’s security footage. Sanchez v Mitsui Fudosan Am., Inc., 2017 NY Slip Op 01821, 1st Dept 3-15-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL)/SLIP AND FALL (QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL)/WAX (SLIP AND FALL, QUESTION OF FACT WHETHER NEGLIGENT WAXING WAS CAUSE OF PLAINTIFF’S FALL)

DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant heavy metal club did not demonstrate plaintiff assumed the risk of colliding with a slam dancer. Plaintiff was not participating in the slam dancing:

The doctrine of primary assumption of risk “applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntary assumes the risks'” … . A person who chooses to engage in such an 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” … . The doctrine has generally been restricted “to particular athletic and recreative activities in recognition that such pursuits have enormous social value’ even while they may involve significantly heightened risks'” … , and are, therefore, “worthy of insulation from a breach of duty claim” … . Here, even assuming, without deciding, that attending a heavy metal concert where slam dancing takes place is a qualified activity to which the doctrine may properly be applied … , under the facts presented, the defendants, as the organizers and sponsors of the event, failed to eliminate triable issues of fact as to whether they met their duty to exercise care to make the conditions at the subject venue as safe as they appeared to be … and did not unreasonably increase the usual risks inherent in the activity of concert going … . Brosnan v 6 Crannell St., LLC, 2017 NY Slip Op 01840, 2nd Dept 3-15-17

NEGLIGENCE (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/ASSUMPTION OF THE RISK (SLAM DANCING, (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLAM DANCING (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

QUESTION OF FACT WHETHER FAILURE TO SAND OR SALT STEPS CREATED OR EXACERBATED A DANGEROUS CONDITION.

The First Department, finding that summary judgment was properly denied in this slip and fall case, noted that there was a question of fact whether the failure to sand or salt the steps created or exacerbated a dangerous condition:

Plaintiff alleges that she was injured when she slipped on icy steps in front of defendants’ residence. The record shows that defendant Kenneth Clarke testified that sheets of icy rain had been falling all morning on the day of the accident, and that the steps had been cleared earlier that morning by a man he had hired to clear snow and ice. However, plaintiff and a neighbor who lived across the street testified that there was no precipitation on the morning of the accident, but that it had snowed two and three days earlier. Plaintiff also stated that she had not seen the man defendant had hired to clear the steps, either after the previous snowfall or that morning, although she was home and would have been aware of his presence. Moreover, there are conflicting opinions of expert meteorologists regarding the weather conditions on the morning of plaintiff’s fall. Under these circumstances, summary judgment was properly denied, since triable issues of fact exist as to whether there was a storm in progress on the morning of plaintiff’s accident, which would have suspended defendants’ obligation to clear the steps of snow and ice … .

Furthermore, assuming that there was no storm in progress, the record also presents issues of fact as to whether anyone acting on defendants’ behalf ever inspected and cleared the steps, either on the morning of the accident or after the prior snowfall, and, if so, whether such person’s “failure to place sand or salt on the stairs created or exacerbated a dangerous condition” after the prior storm … . Arroyo v Clarke, 2017 NY Slip Op 01809, 1st Dept 3-15-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER FAILURE TO SAND OR SALT STEPS CREATED OR EXACERBATED A DANGEROUS CONDITION)/SLIP AND FALL (QUESTION OF FACT WHETHER FAILURE TO SAND OR SALT STEPS CREATED OR EXACERBATED A DANGEROUS CONDITION)

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LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY.

The First Department determined plaintiff’s motion for leave to file a late notice of claim against the NYC Housing Authority should have been granted, despite the lack of a reasonable excuse and defendant’s lack of knowledge of the injury. The infant plaintiff was nine months old when he was burned by an exposed water pipe.  The infancy and the lack of prejudice to the defendant warranted allowing the claim to be filed after a 10-month delay:

The infant plaintiff was approximately nine months old at the time that he allegedly sustained injuries as a result of an exposed hot water pipe in his family’s apartment, in a building owned and operated by defendant. This infancy weighs in favor of granting leave to serve a late notice of claim, regardless of the lack of a nexus between the delay and infancy … . In addition, defendant failed to address plaintiff’s showing that defendant would not be substantially prejudiced by the 10-month delay in seeking leave since the condition of the exposed pipes remained unchanged from the time of the accident … . Given these factors, which the motion court failed to address, and given the remedial nature of the statute, the motion court improvidently exercised its discretion in dismissing the infant plaintiff’s claim … . Eboni B. v New York City Hous. Auth., 2017 NY Slip Op 01816, 1st De[t 3-15-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)/NOTICE OF CLAIM (LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED DESPITE LACK OF A REASONABLE EXCUSE AND DEFENDANT’S LACK OF KNOWLEDGE OF THE INJURY)

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PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED.

The Second Department determined the petition for leave to file a late notice of claim for a student (Lopez) allegedly injured in gym class was properly denied:

Here, the petitioner failed to establish that the City had acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter (see General Municipal Law § 50-e[5]). While the petitioner alleges that the physical education teacher invented the particular exercise and was present when Lopez was injured, she failed to submit any evidence that the City acquired actual knowledge of the essential facts underlying their negligence claims … . Thus, the City had no reason to conduct a prompt investigation into the purported negligence … .

The petitioner also failed to proffer evidence establishing a reasonable excuse for her failure to serve a timely notice of claim … . Lopez’s infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . Moreover, the assertion by the petitioner that she was consumed with Lopez’s medical care was also insufficient to constitute a reasonable excuse, as it was not supported by any evidence demonstrating that the delay in serving a notice of claim was directly attributable to Lopez’s medical condition … .

Finally, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the City was not substantially prejudiced by the 11-month delay in serving a notice of claim … . Matter of Ramos v Board of Educ. of the City of New York, 2017 NY Slip Op 01868, 2nd Dept 3-15-17

 

EDUCATION-SCHOOL LAW (PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NEGLIGENCE (EDUCATION-SCHOOL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)

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CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY.

The Second Department determined the claim alleging negligent highway design was properly dismissed after trial:

“[A] municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition” … . However, “in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the qualified immunity doctrine, liability may arise where there is proof that the State’s traffic design plan “evolved without adequate study or lacked a reasonable basis” … . Moreover, “something more than a mere choice between conflicting opinions of experts is required before the State . . . may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public” … .

Here, the Court of Claims properly dismissed the claim based upon the evidence the State submitted at trial, which showed that the design and placement of the guardrail were the result of a deliberate decision-making process after an adequate study and had a reasonable basis … . Gagliardi v State of New York, 2017 NY Slip Op 01845, 2nd Dept 3-15-17

 

COURT OF CLAIMS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/IMMUNITY (HIGHWAY DESIGN, CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/NEGLIGENCE (HIGHWAY DESIGN, CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/HIGWAYS AND ROADS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/GUARDRAILS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)

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PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE.

The Second Department, over a two-justice dissent, determined plaintiff properly amended his bill of particulars as of right prior to the filing of the note of issue, despite labeling the document a “supplemental” bill of particulars. The amended bill of particulars added the failure to diagnose appendicitis as a basis for the lawsuit:

The defendant’s contentions regarding the plaintiff’s delay in amending his bill of particulars are misplaced. While it is true that “once discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances'” … , no such showing is required where a bill of particulars is amended as of right before the note of issue and certificate of readiness have been filed. The as-of-right amendment of a bill of particulars has been appropriately compared to the as-of-right amendment of a pleading: “Presumably this amendment [pursuant to CPLR 3042(b)] can make any change in the bill, just as an amendment as of course can make any change in a pleading under CPLR 3025(a). But the latter is restricted in time to the outset of the action while CPLR 3042(b) keeps the bill’s amendment time open during the whole pre-note of issue period” … . Mackauer v Parikh, 2017 NY Slip Op 01847, 2nd Dept 3-15-17

CIVIL PROCEDURE (PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE)/NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE)/MEDICAL MALPRACTICE (PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE)

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ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW.

The Third Department determined plaintiff could sue in negligence, despite the fact that defendant was a co-worker. Defendant struck plaintiff with a golf club inflicting an injury that required the removal of a testicle. There was a question of fact whether defendant’s actions were grossly negligent or reckless and there not within the scope of defendant’s employment. There was also a question of fact whether the employer condoned defendant’s actions:

There is no dispute that plaintiff and defendant were coemployees, that plaintiff was injured in the course of his employment and that he collected workers’ compensation benefits for his injuries. Pursuant to Workers’ Compensation Law § 29 (6), these benefits are the exclusive remedy for an employee injured “by the negligence or wrong of another in the same employ.” Having the same employer is not synonymous with being “in the same employ” and, to be shielded from liability, a defendant “must himself [or herself] have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort” … . Here, there is no indication that plaintiff was involved in any horseplay … . The differing versions of the event presented by the parties, as well as the two club employees who supported plaintiff’s version, raise genuine questions of fact as to whether defendant intended to strike plaintiff and did so in an excessive manner given the sensitive area of impact. Although defendant was not directly disciplined by the club and resigned to take a new position a few months after the incident, a question of fact also remains as to whether the club condoned defendant’s actions. As such, we conclude that Supreme Court properly determined that questions of fact existed as to whether defendant acted in a “grossly negligent and/or reckless” manner when he swung the golf club shaft and struck plaintiff, as alleged in the complaint … . Montgomery v Hackenburg, 2017 NY Slip Op 01744, 3rd Dept 3-9-17

NEGIGENCE (WORKERS’ COMPENSATION LAW, ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)/WORKERS’ COMPENSATION LAW (NEGLIGENCE, (ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)/EMPLOYMENT LAW (WORKERS’ COMPENSATION LAW, ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)

WRONGFUL DEATH VERDICT AWARDING ZERO DAMAGES FOR LOSS OF PARENTAL GUIDANCE NOT AGAINST THE WEIGHT OF THE EVIDENCE.

The Second Department determined the jury verdict in this wrongful death case which awarded zero damages for loss of parental guidance was not against the weight of the evidence:

“In a wrongful death action, an award of damages is limited to the fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought” …. “In the case of a decedent who was not a wage earner, pecuniary injuries may be calculated, in part, from the increased expenditures required to continue the services she [or he] provided, as well as the compensable losses of a personal nature, such as loss of guidance” … . “The determination of pecuniary damages in a wrongful death action is peculiarly within the province of the jury” … . Here, we find that the evidence on the issue of the loss of the decedent’s parental guidance did not so preponderate in favor of the plaintiff such that the verdict could not have been reached on any fair interpretation of the evidence … . Estevez v Tam, 2017 NY Slip Op 01675, 2nd Dept 3-8-17

NEGLIGENCE (WRONGFUL DEATH VERDICT AWARDING ZERO DAMAGES FOR LOSS OF PARENTAL GUIDANCE NOT AGAINST THE WEIGHT OF THE EVIDENCE)/WRONGFUL DEATH (WRONGFUL DEATH VERDICT AWARDING ZERO DAMAGES FOR LOSS OF PARENTAL GUIDANCE NOT AGAINST THE WEIGHT OF THE EVIDENCE)/DAMAGES (WRONGFUL DEATH VERDICT AWARDING ZERO DAMAGES FOR LOSS OF PARENTAL GUIDANCE NOT AGAINST THE WEIGHT OF THE EVIDENCE)/PARENTAL GUIDANCE (WRONGFUL DEATH VERDICT AWARDING ZERO DAMAGES FOR LOSS OF PARENTAL GUIDANCE NOT AGAINST THE WEIGHT OF THE EVIDENCE)

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