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THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN.

The Court of Appeals, reversing the Appellate Division, over a dissenting memorandum, determined there was sufficient evidence to support the verdict that the New York Transit Authority was negligent and the negligence was the proximate cause of plaintiff’s injuries. The matter was remitted to the Appellate Division. Only the dissent discussed the facts. Plaintiff, who had just left a methadone clinic and had no memory of the accident, alleged he was struck by a subway train after he had fallen off a subway platform:

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FROM THE DISSENT:  Plaintiff — while “high on Xanax and Klonopin” — left a methadone clinic, fell off a subway platform, and was struck by a train. The jury returned a verdict apportioning fault 60% to plaintiff and 40% to defendant New York City Transit Authority (NYCTA), and awarding plaintiff a total of approximately $2 million in damages. Supreme Court set aside the verdict and dismissed the complaint. The Appellate Division affirmed. I agree with both lower courts, and therefore I dissent.

Plaintiff entered the subway station around 11:15 a.m. and was discovered injured on the tracks at 11:58 a.m. During those forty-three minutes, at least two trains passed through the station. Neither train operator saw plaintiff, although the operator of the second train reported observing white sneakers on the train tracks. Plaintiff had no memory of the incident, but contended at trial that the second train caused his injuries, and that the driver of that train had acted negligently. Obey v City of New York, 2017 NY Slip Op 02590, CtApp 4-4-17

 

NEGLIGENCE (THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN)/EVIDENCE (NEGLIGENCE, (THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN)

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RACE TRACK WAIVER OF LIABILITY INVALID, PRIMARY ASSUMPTION OF RISK NOT APPLICABLE, IMPLIED ASSUMPTION OF RISK APPLICABLE, LAW OF THE CASE DID NOT PRECLUDE DIRECTED VERDICT AFTER DENIAL OF SUMMARY JUDGMENT ON THE SAME ISSUES.

The Fourth Department, in a substantive decision dealing with several liability and damages issues not summarized here, determined the trial court properly granted plaintiff’s motion for a directed verdict finding the liability waiver invalid and the doctrine of primary assumption of risk inapplicable. The Fourth Department concluded the doctrine of implied assumption of risk was applicable, however. The Fourth Department further held that the law of the case doctrine did not preclude the court from directing a verdict in plaintiff’s favor after denying plaintiff’s motion for summary judgment on the same issues. Plaintiff’s son was in an auto race at defendant race track. Plaintiff was in the pit area when defendant driver (Holland) backed his car into plaintiff:

Contrary to defendants’ contention, the court properly granted plaintiff’s motion for a directed verdict establishing that the liability waiver was invalid and that the action was not barred by the doctrine of primary assumption of the risk, inasmuch as there was “no rational process” by which the jury could have found in favor of defendants on those issues … . With respect to the waiver, General Obligations Law § 5-326 voids any such agreement entered into in connection with, as relevant here, the payment of a fee by a “user” to enter a place of recreation. Plaintiff testified at trial that he was a mere spectator on the night of the accident, thereby establishing that he was a user entitled to the benefit of section 5-326 … , and there was no evidence from which the jury could have rationally found that plaintiff was a participant in the event whose attendance was “meant to further the speedway venture” … . …

With respect to the doctrine of primary assumption of the risk, we conclude that the risk that a pedestrian will be struck by a driver backing up in the pit area, well before the driver is participating in a race, is not inherent in the activity of automobile racing … , and thus that the doctrine is inapplicable to this case … .

We reject defendants’ further contention that the doctrine of law of the case precluded the court from directing a verdict in plaintiff’s favor after it had denied prior motions by plaintiff directed at the issues of waiver and primary assumption of the risk, including a motion for partial summary judgment. ” A denial of a motion for summary judgment is not necessarily . . . the law of the case that there is an issue of fact in the case that will be established at the trial’ “… . …

We further agree with defendants that a charge on implied assumption of the risk should have been given because there was evidence that plaintiff “disregard[ed] a known risk by voluntarily being in a dangerous area” … . Inasmuch as the jury was properly instructed on comparative negligence and apportioned 20% of the liability for the accident to plaintiff, however, we conclude that this error did not prejudice a substantial right of defendants and thus does not warrant reversal … . Knight v Holland, 2017 NY Slip Op 02525, 4th Dept 3-31-17

 

NO SHOWING RUG OVER WHICH PLAINTIFF TRIPPED WAS NOT FLUSH TO THE FLOOR, HEIGHT DIFFERENTIAL WAS TRIVIAL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Fourth Department, over a dissent, reversing Supreme Court, determined plaintiff’s slip and fall complaint should have been dismissed. Plaintiff alleged he tripped on the corner of a rug. The Fourth Department found, as a matter of law, the rug was in place and plaintiff’s foot went under it. The height of the rug was a trivial, nonactionable defect:

… [W]e conclude that defendant established as a matter of law that the alleged defect created by the placement of a rug in the vestibule and any apparent height differential between the rug and the floor “is too trivial to be actionable” … . “[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Defendant’s submissions established that the accident occurred between approximately 10:00 and 10:30 a.m., when it was “bright enough to see.” Plaintiff was entering defendant’s restaurant behind his son, and there were no other customers in the vicinity. The photograph submitted by defendant depicting the rug does not reveal any defect or irregularity with the rug, and the videotape of the incident shows that the area where plaintiff fell was unobstructed, no other patrons had an issue traversing through the doors and over the rug, and there was no appreciable ripple or other height differential present in the rug to cause a tripping hazard. Thus, after examining the photograph and the video depicting the placement of the rug in the vestibule, and ” in view of the time, place, and circumstances of plaintiff’s injury,’ ” we conclude that defendant established as a matter of law that any defect in the rug was too trivial to be actionable … . Langgood v Carrols, LLC, 2017 NY Slip Op 02528, 4th Dept 3-31-17

 

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DEFENDANT FOUND NOT GUILTY BY REASON OF INSANITY CAN BE SUED FOR WRONGFUL DEATH UNDER THE EPTL, BOTH FOR THE STABBING DEATH OF HIS MOTHER AND THE RELATED SUICIDE OF HIS BROTHER.

The First Department, reversing Supreme Court, determined the fact that defendant was found not guilty by reason of insanity in connection with the stabbing of his mother did not preclude wrongful death claims against him pursuant to EPTL 5-4.1, both for the death of his mother and the related suicide of his brother:

Although defendant was found not guilty by reason of mental disease or defect in connection with the stabbing death of his mother, the complaint stated a viable wrongful death claim against him pursuant to EPTL 5-4.1, since an insane person may be liable in tort for his actions … . A wrongful death claim was also stated on behalf of defendant’s brother, who committed suicide after his mother’s murder. Rosen v Schwartz, 2017 NY Slip Op 02517, 1st Dept 3-30-17

 

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DISMISSAL OF INTENTIONAL TORT CAUSES OF ACTION PRECLUDED SUBSEQUENT ACTION SOUNDING IN NEGLIGENCE, NO NEGLIGENT ASSAULT IN NEW YORK.

The Second Department noted that New York does not recognize an action for negligent assault. Plaintiff’s intentional tort causes stemming from an arrest by a security guard were dismissed as time-barred. Plaintiff then brought suit under a negligence theory:

“[U]nder New York’s transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” … . Here, the purported negligence cause of action asserted in the plaintiff’s second action arose from the same operative facts as the dismissed intentional tort claims, and could have been raised in the first action. Accordingly, in view of the previous litigation between the parties, the Supreme Court properly directed the dismissal of that cause of action on the ground that it was barred by the doctrine of res judicata … .

Furthermore, the Supreme Court properly dismissed the negligence cause of action on the additional ground that the allegations in support of it failed to state a cause of action. The allegations that Doe physically injured the plaintiff while restraining and arresting him did not transform the plaintiff’s time-barred cause of action alleging assault into a timely cause of action alleging negligence, as New York does not recognize a cause of action to recover for negligent assault … . Johnson v City of New York, 2017 NY Slip Op 02410, 2nd Dept 3-29-17

 

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FAILURE TO PRESERVE SURVEILLANCE VIDEO WHICH ALLEGEDLY SHOWED HOW PLAINTIFF WAS INJURED WARRANTED A SANCTION, EVEN THOUGH PLAINTIFF DID NOT DEMAND THE TAPE OR ASK THAT IT BE PRESERVED.

The Second Department determined defendants should have been sanctioned for not preserving a videotape which allegedly showed plaintiff deliberately allowing a car to run over her toes. Plaintiff had not asked that the videotape be preserved. The Second Department determined the appropriate sanction is to prohibit the defendants from introducing any evidence of the contents of the tape. The Second Department further held that plaintiff was not entitled to summary judgment because her conclusory affidavit was not sufficient to demonstrate the absence of comparative fault:

Here, the Supreme Court improvidently exercised its discretion in failing to impose any sanction. The plaintiff sustained her burden of establishing that spoliation occurred, given that the defendants failed to preserve the surveillance video despite their knowledge of a reasonable likelihood of litigation regarding the incident, and the highly relevant nature of the video evidence to that litigation … . However, since the destruction of the evidence did not deprive the plaintiff of her ability to prove her claim so as to warrant the drastic sanction of striking the defendants’ answer, the appropriate sanction for the spoliation herein is to preclude the defendants from offering any evidence in this action regarding the alleged contents of the erased surveillance video … . Rokach v Taback, 2017 NY Slip Op 02456, 2nd Dept 3-29-17

 

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CLAIMANT STRUCK A DOWNED LIGHT POLE WHICH HAD ROTTED BELOW GROUND, STATE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION.

The Second Department determined the state did not have actual or constructive notice that a light pole was rotten. Claimant was injured when his vehicle struck a downed pole. The rot was not visible above ground. Evidence that rot was visible on other poles did not provide adequate notice:

Here, the Court of Claims correctly concluded that the claimant failed to establish that the State had either actual or constructive notice of any dangerous condition of the subject light pole. Rather, the evidence established that the rot on the pole was at the bottom of the pole, which was buried between six and seven feet below ground. Thus, a reasonable inspection would not have revealed the dangerous condition. The claimant’s evidence that a witness noticed rot on some of the wooden poles along Ocean Parkway during the prior 15 years is insufficient to provide notice regarding the specific pole involved in the accident. “A general awareness of a recurring problem in insufficient, without more, to establish constructive notice of the particular condition that caused the accident” … . Jeffries v State of New York, 2017 NY Slip Op 02409, 2nd Dept 3-29-17

 

FOOT OF A DECORATIVE FENCE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AS A MATTER OF LAW.

The Second Department determined the foot of a decorative fence over which plaintiff tripped was open and obvious as a matter of law and not actionable:

While a landowner has a duty to maintain its premises in a reasonably safe condition … , “there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” … . “While the issue of whether a hazard is . . . open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence” … .

Here, the defendants established, prima facie, that the fence, including the “leg” or foot of the fence, was open and obvious, as it was readily observable by those employing the reasonable use of their senses and, as a matter of law, was not inherently dangerous … .

In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to her contention, she did not raise a triable issue of fact as to whether the foot of the fence constituted a “trap for the unwary” because it was somehow obscured … . Gerner v Shop-Rite of Uniondale, Inc., 2017 NY Slip Op 02407, 2nd Dept 3-29-17

 

ALTHOUGH THERE WAS A STORM IN PROGRESS, DEFENDANT’S SNOW REMOVAL MAY HAVE EXACERBATED THE SLIPPERY CONDITION, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact in this slip and fall case. Although there was a storm in progress, defendant’s snow removal efforts may have exacerbated the ice condition (facts not described in decision):

Here, in support of its motion, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence, which included the affidavit of its meteorologist, as well as certified climatological data, which demonstrated that the subject accident occurred while a storm was in progress … . In opposition, the evidence relied upon by the plaintiff, which included her affidavit and the affidavit of her meteorologist, raised a triable issue of fact as to whether any snow removal efforts the defendant undertook prior to the accident in relation to the storm either created or exacerbated the ice condition which allegedly caused the plaintiff to fall … . Dylan v CEJ Props., LLC, 2017 NY Slip Op 02403, 2nd Dept 3-29-17

 

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19 YEAR OLD NOTICE OF CLAIM WAS NOT SUFFICIENT WRITTEN NOTICE OF SIDEWALK DEFECT.

The Second Department determined a 19-year-old notice of claim did not meet the written notice requirement for a sidewalk defect in this slip and fall case:

“Administrative Code of the City of New York § 7-201(c) limits the City’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location” … . Accordingly, “prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City” … .

Here, the City established its prima facie entitlement to judgment as a matter of law by submitting proof that a search of its records revealed that it had not received any prior written notice of the allegedly defective condition … . In opposition, the plaintiffs failed to raise a triable issue of fact. “To satisfy a prior written notice statute, the notice relied upon by a plaintiff must not be too remote in time” … . Here, the plaintiffs’ submission of a notice of claim, filed almost 19 years prior to the accident complained of, was insufficient to raise a triable issue of fact since it was too remote in time to constitute prior written notice within the meaning of Administrative Code of the City of New York § 7-201(c) … . Gellman v Cooke, 2017 NY Slip Op 02404, 2nd Dept 3-29-17

 

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