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SCHOOL OWED NO DUTY OF CARE TO STUDENT STRUCK BY A CAR AFTER LEAVING THE SCHOOL WITH PERMISSION.

The Second Department determined defendant school did not owe a duty of care to a student who was struck by a car one block from the school after leaving the school with permission:

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A school’s duty to supervise the students in its charge arises from its physical custody and control over them … . “When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases”… . “Generally, a school cannot be held liable for injuries that occur off school property and beyond the orbit of its authority” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the infant plaintiff had left school grounds with the permission of his mother and, thus, was no longer in the defendants’ custody or under their control and was outside the orbit of their authority … . The defendants also demonstrated, prima facie, that the infant plaintiff was not released into a foreseeably hazardous setting that the defendants had a hand in creating … . Donofrio v Rockville Ctr. Union Free Sch. Dist., 2017 NY Slip Op 02774, 2nd Dept 4-12-17

 

EDUCATION-SCHOOL LAW (SCHOOL OWED NO DUTY OF CARE TO STUDENT STRUCK BY A CAR AFTER LEAVING THE SCHOOL WITH PERMISSION)/NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL OWED NO DUTY OF CARE TO STUDENT STRUCK BY A CAR AFTER LEAVING THE SCHOOL WITH PERMISSION)

NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM.

The First Department, reversing Supreme Court, determined that defendant bus company did not have a duty to keep the entry steps free of tracked in water during a rainstorm. Plaintiff slipped and fell on the steps while attempting to board the bus:

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Plaintiff’s claim that Swift River negligently allowed a slippery condition to persist on the stairs leading into the bus was precluded, as a matter of law, by plaintiff’s testimony that it was raining at the time of the accident … . “Defendant is not obligated to provide a constant remedy for the tracking of water onto a bus during an ongoing storm” … , and here, the evidence showed that plaintiff was the last of a group of people to board the bus during the rainstorm … . Collins v Nate Tours Bus Co., 2017 NY Slip Op 02739. 1st Dept 4-6-17

NEGLIGENCE (NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/SLIP AND FALL (NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/BUSES (SLIP AND FALL. NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)/WATER, TRACKED IN (BUSES, NO DUTY TO KEEP BUS STEPS FREE OF TRACKED IN WATER DURING RAINSTORM)

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EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined demonstrating that a sidewalk defect developed over time is not sufficient to raise a question of fact whether the defect was there upon installation of the sidewalk:

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Contrary to the plaintiff’s contention, evidence suggesting that the defendant actually knew of the alleged defect did not satisfy the requirement in Village of Scarsdale Local Law § 209-1 that prior written notice of the alleged defect be given to the Village Clerk … . Moreover, the plaintiff failed to raise a triable issue of fact as to the affirmative negligence exception, as she did not identify any evidence demonstrating that the allegedly defective condition arose immediately upon installation … . The plaintiff’s evidence, which includes an expert affidavit and statements by Village officials, at most established that environmental effects created the alleged defect over time, which is not sufficient to establish the defendant’s liability … . Beiner v Village of Scarsdale, 2017 NY Slip Op 02617, 2nd Dept 4-5-17

Same issues and result in Loghry v Village of Scarsdale, 2017 NY Slip Op 02635, 2nd Dept 4-5

 

NEGLIGENCE (EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALKS, EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, EVIDENCE A SIDEWALK DEFECT DEVELOPED OVER TIME DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE DEFECT AROSE UPON INSTALLATION, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE.

The Second Department, reversing Supreme Court, determined a surveillance tape which depicted the defendant’s car pulling out into traffic as plaintiff’s (Nesbitt’s) car was closely approaching should have been considered by the motion court and summary judgment should have been awarded to defendant. The tape was sufficiently authenticated by defendant’s statement the tape accurately depicted what happened:

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Here, in support of his motion for summary judgment, the defendant submitted, among other things, a surveillance tape that depicted Nesbitt’s vehicle leaving the gas station and entering Middle Country Road as the defendant’s vehicle approached. The Supreme Court refused to consider this evidence on the ground that it was not properly authenticated. The court improvidently exercised its discretion in declining to consider the surveillance tape, because the defendant adequately authenticated the tape by averring that it accurately depicted what had occurred at the time of the accident … .

The surveillance tape and the additional evidence submitted by the defendant in support of his motion established, prima facie, that he was not at fault in the happening of the accident and that the sole proximate cause was Nesbitt’s conduct in entering the roadway when the defendant’s vehicle was so close … . Nesbitt v Gallant, 2017 NY Slip Op 02665, 2nd Dept 4-5-17

 

NEGLIGENCE (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/EVIDENCE  (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/SURVEILLANCE TAPE (EVIDENCE, CAR ACCIDENT, SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/TRAFFIC ACCIDENTS (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)

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MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT.

The Second Department determined defendant school district’s motion to set aside the verdict in this personal injury case was properly granted. Plaintiff was a matron on a school bus. The bus suddenly stopped when a student grabbed the steering wheel and plaintiff fell. The Second Department explained the criteria for a motion to set aside a verdict as a matter of law and held the school district could not be liable unless there was a special relationship between the plaintiff and the district (no special relationship was demonstrated):

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“To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational basis by which the jury could find for the plaintiff against the moving defendant” … . “The plaintiff’s evidence must be accepted as true, and the plaintiff is entitled to every favorable inference that can be reasonably drawn therefrom” … . …

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With regard to teachers, administrators, or other adults on or off school premises, a special relationship with a municipal defendant can be formed in three ways: “(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” … .

A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following four elements: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Moreover, “[t]he assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff” … . Destefano v City of New York, 2017 NY Slip Op 02626, 2nd Dept 4-5-17

 

NEGLIGENCE (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/EDUCATION-SCHOOL LAW  (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/CIVIL PROCEDURE  (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/SPECIAL RELATIONSHIP (EDUCATION-SCHOOL LAW, NEGLIGENCE, MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)

DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant property owners did not demonstrate defendant’s snow removal efforts did not create the condition and did not demonstrate a lack of constructive notice of the icy condition of the sidewalk where plaintiff fell. Defendants motion for summary judgment should not, therefore, have been granted:

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Here, in support of their motion, the defendants failed to eliminate all triable issues of fact as to whether the snow removal efforts of the defendant Marc V. Antiones preceding the subject accident created the ice condition upon which the plaintiff allegedly fell … . Moreover, the defendants failed to demonstrate a lack of constructive notice of the ice condition alleged. While the defendants demonstrated a lack of actual notice of the ice condition alleged, the evidence submitted in support of their motion did not show when the area of the sidewalk where the subject accident occurred was last inspected in relation to when the subject accident occurred … . Rong Wen Wu v Arniotes, 2017 NY Slip Op 02687, 2nd Dept 4-5-17

NEGLIGENCE (DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALKS, DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/NOTICE (ICY CONDITION, SIDEWALKS, SLIP AND FALL, DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER.

The Second Department determined defendant common carrier (Long Island Railroad) did not have a duty to keep the sidewalk where plaintiff fell free of ice and snow because the sidewalk served as ingress and egress for several common carriers. The duty to keep the sidewalk clear would apply to defendant only if the sidewalk service as ingress and egress solely for defendant:

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In “areas that serve primarily for ingress and egress to a subway or other similar station that is served by a single carrier,” a common carrier must maintain a safe means of ingress and egress for the use of its passengers, even if the area is owned and maintained by another, so long as the area is constantly and notoriously used by its passengers as a means of approach … . This duty of care “has not been extended to common areas in a multi-carrier facility” … . Mashall v Long Is. R.R., 2017 NY Slip Op 02637, 2nd Dept 4-5-17

NEGLIGENCE (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/COMMON CARRIERS (SLIP AND FALL,  (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/SIDEWALKS (SLIP AND FALL, COMMON CARRIERS, (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/SLIP AND FALL (SIDEWALKS, COMMON CARRIERS, COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)

PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiffs were entitled to summary judgment in this pedestrian wrongful death case. Plaintiffs’ decedent was crossing the street with the walk signal when she was struck. There was no evidence of the pedestrian’s comparative negligence:

A pedestrian who has the right of way is entitled to anticipate that motorists will obey the traffic laws that require them to yield … . Here, the plaintiffs established, through admissible evidence, that [defendant driver]  failed to yield the right of way to the decedent, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor … . The plaintiffs’ prima facie showing was buttressed by [defendant driver’s] admission that he did not see the decedent and that he struck her … . As neither the plaintiffs’ submissions nor the defendants’ opposition papers revealed any triable issue of fact regarding the decedent’s comparative negligence … , the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability … . Huang v Franco, 2017 NY Slip Op 02629, 2nd Dept 4-5-17

NEGLIGENCE (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)/PEDESTRIANS (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)/CROSSWALKS  (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)

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QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY.

The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous representation doctrine rendered the legal malpractice cause of action timely. The malpractice allegation stemmed from the alleged failure of the attorneys to recognize that the sale of plaintiff’s business required the creation of a pension fund ($500,000). There was evidence a meeting was held to discuss the pension fund problem at a time which would rendered the malpractice action timely:

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A claim to recover damages for legal malpractice accrues when the malpractice is committed … . “However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates” … . For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … .

Here, the defendant satisfied its initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in March 2015 … . In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. The plaintiffs submitted Andrew Stein’s affidavit, in which he averred that he met with members of the defendant on July 26, 2012, to determine how to rectify the pension liability issue. Andrew indicated that he was not satisfied with their recommendations concerning how to rectify the issue and directed them to formulate another idea. Andrew’s affidavit was sufficient to raise a question of fact as to whether the defendant engaged in a course of continuous representation intended to rectify or mitigate the initial act of alleged malpractice … . Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP. 2017 NY Slip Op 02688, 2nd Dept 4-5-17

 

ATTORNEYS (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/ATTORNEYS (LEGAL MALPRACTICE, (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/LEGAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CIVIL PROCEDURE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CONTINUOUS REPRESENTATION DOCTRINE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)

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KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS.

The First Department determined the death of plaintiff in her office (caused by nonparty Tarloff) was not foreseeable and the building owners and tenants could not therefore be liable in negligence:

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Even though the building contained a psychiatric suite, defendants had no duty to protect decedent from the violent actions of third parties, including former patients like Tarloff; such actions were not foreseeable, given the absence of prior violent criminal activity by Tarloff or other third parties in the building … .

Even assuming that defendants had a duty to provide “minimal precautions” … , that duty was satisfied by the provision of 24/7 doorman coverage, surveillance cameras, controlled building access, and functioning locks on the doors of the office suite and decedent’s personal office … . It is purely speculative that additional security measures — such as announcing visitors, installing an office intercom or buzzer, or keeping the office doors locked after hours — would have prevented Tarloff from killing decedent.

Any claims that the door man was negligent in failing to recognize Tarloff’s suspicious behavior was not a proximate cause of decedent’s death because it was still not foreseeable that Tarloff was about to engage in a murderous rampage. Tarloff’s conduct was a superceding cause severing the causal chain. Given that the attack was targeted and premeditated, it is “unlikely that any reasonable security measures would have deterred [Tarloff]” … . Faughey v New 56-79 IG Assoc., L.P., 2017 NY Slip Op 02608, 1st Dept 4-4-17

 

NEGLIGENCE (KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)/ASSAULT (NEGLIGENCE, KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)/FORESEEABILITY (KILLING OF PLAINTIFF IN HER OFFICE WAS NOT FORESEEABLE BY THE BUILDING OWNERS OR TENANTS)

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