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STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES.

The Second Department determined the state did have a duty to warn swimmers of rip currents. Claimant’s decedent drowned after a rip current pulled him away from shore:

Turning to the merits, “the State must act as a reasonable [person] in maintaining [its] property,'” such as a park, ” in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … . Here, in support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . In opposition, the claimant failed to raise a triable issue of fact … .

Furthermore, the defendant has no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … , including rip currents … . Seetaram v State of New York, 2017 NY Slip Op 00336, 2nd Dept 1-18-17

 

NEGLIGENCE (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/COURT OF CLAIMS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/SWIMMERS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/RIP CURRENTS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/STATE PARKS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)

EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED.

The Second Department determined defendants’ motion for summary judgment in this traffic accident case was properly granted pursuant to the emergency doctrine. Plaintiff’s car crossed into oncoming traffic and struck defendants’ car. Defendants demonstrated the emergency doctrine applied. No question of fact was raised about defendant driver’s negligence:

The defendants established, prima facie, that the defendant driver was presented with an emergency situation not of his own making when the plaintiff’s vehicle crossed over into his lane of traffic, and that he acted reasonably in response to that emergency … . Contrary to the plaintiff’s contention, her deposition testimony, which the defendants submitted in support of their motion, did not create a triable issue of fact as to whether the defendant driver’s negligence contributed to the occurrence of the accident … . Graci v Kingsley, 2017 NY Slip Op 00291, 2nd Dept 1-18-17

NEGLIGENCE (EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)/TRAFFIC ACCIDENTS (EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)

NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY. 

The First Department, in a full-fledged opinion by Justice Saxe, determined the owner of a taxicab did not owe a duty to plaintiff who was injured by the cab when an occupant of the cab rendered the driver unconscious during a robbery. The administrative rule requiring a partition between the passenger area and the driver was deemed designed to protect the driver of the cab, not the general public outside of the cab.  Similarly a broken CB radio in the cab did not breach a duty owed to the general public:

Plaintiffs focus on the foreseeability of the type of accident that occurred in the absence of safety devices that would have protected the driver from assault. They argue that since those safety devices would protect not only the driver, but other motorists and pedestrians who might be injured by the driver, the owner of the vehicle owed a duty to both the driver and to plaintiffs to install safety equipment that would protect them.

With regard to how foreseeability interconnects with duty, some confusion has arisen from the classic language of Chief Judge Cardozo’s decision in Palsgraf v Long Is. R.R. Co. (248 NY 339, 344 [1928]), that “[t]he risk reasonably to be perceived defines the duty to be obeyed.” These words have sometimes been misinterpreted to mean that the foreseeability of harm can “spawn[] a duty” to prevent that harm (see e.g. Pulka v Edelman, 40 NY2d 781, 787 [1976] [dissenting opinion]). However, the majority in Pulka v Edelman clarified the error of this reasoning, to explain that foreseeability may not be relied on to create a duty:

“Foreseeability should not be confused with duty. The principle expressed in Palsgraf v Long Is. R.R. Co. (248 NY 339, supra), quoted by the dissent, is applicable to determine the scope of duty — only after it has been determined that there is a duty. Since there is no duty here, that principle is inapplicable” (Pulka, 40 NY2d at 785). On v BKO Express LLC, 2017 NY Slip Op 00281, 1st Dept 1-17-17

 

NEGLIGENCE (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/DUTY (NEGLIGENCE, NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)/FORESEEABILITY (NO DUTY OWED BY CAB COMPANY TO GENERAL PUBLIC, PLAINTIFF INJURED BY THE CAB AFTER THE DRIVER WAS RENDERED UNCONSCIOUS DURING A ROBBERY)

OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE.

The First Department determined defendant’s motion for summary judgment was properly denied. Defendant (Schindler) failed to secure a seven-foot wooden panel which apparently fell and injured plaintiff. The court noted that the open and obvious nature of the panel eliminated the duty to warn but not the duty to make the premises safe:

Schindler’s arguments that the wooden panel that its workers leaned against the wall was open and obvious, that plaintiff failed to use her senses to observe it, and that any barricades or warnings would not have prevented the accident, are unpreserved as they were not presented to the motion court … . In any event, we would find such arguments unavailing because even if a hazard is open and obvious, that merely eliminates the duty to warn, but not the duty to maintain the premises in a reasonably safe condition … . Here, it is undisputed that Schindler’s employees failed to secure the seven-foot tall wooden panel that they leaned against the wall or create a perimeter around it to prevent others from entering the area. Polini v Schindler El. Corp., 2017 NY Slip Op 00254, 1st Dept 1-12-17

NEGLIGENCE (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/OPEN AND OBVIOUS (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)/WARN, DUTY TO (OPEN AND OBVIOUS CONDITION ELIMINATES DUTY TO WARN BUT NOT DUTY TO KEEP PREMISES SAFE)

QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT.

The First Department, reversing Supreme Court, determined there were triable issues of fact whether a sidewalk defect narrowed the passable area and whether the defect was visible at night:

… [T]he owner and property manager of the premises that abutted a sidewalk where plaintiff Alison Stolzman tripped, established prima facie entitlement to summary judgement based on the testimony and photographic evidence indicating the alleged hazard was open and obvious and not inherently dangerous … .

However, there remain triable issues as to whether the alleged low-lying tripping condition dangerously narrowed the passable area of the sidewalk and was adequately visible at night … . Stolzman v City of New York, 2017 NY Slip Op 00247, 1st Dept 1-12-17

 

NEGLIGENCE (QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/SIDEWALKS (SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/ABUTTING PROPERTY OWNERS (SIDEWALK SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/SLIP AND FALL (SIDEWALKS, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)/OPEN AND OBVIOUS (SIDEWALK SLIP AND FALL, QUESTION OF FACT WHETHER SIDEWALK LOW-LYING TRIPPING HAZARD NARROWED THE PASSABLE AREA AND WAS VISIBLE AT NIGHT)

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DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED.

The Second Department determined Supreme Court should have granted plaintiffs’ motion to set aside the verdict in this medical malpractice action. The defendants’ notice of the expert opinion evidence to be presented at trial did not notify plaintiffs that the expert would testify plaintiff’s stroke was caused by a piece of calcium, not a blood clot. Plaintiffs’ malpractice theory was based entirely on the allegation a blood clot was the cause of the stroke. The court explained the notice requirements:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside the verdict in favor of [defendants] and against the plaintiffs on the issue of liability. Pursuant to CPLR 3101(d)(1)(i), [defendants] were required to disclose “in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, . . . and a summary of the grounds for each expert’s opinion.” Here, [the] expert witness disclosure only revealed expert testimony that [plaintiff’s] stroke was not caused by his atrial fibrillation or a blood clot, but did not inform the plaintiffs that the expert would testify that the stroke was caused by calcification. [Defendant] failed to demonstrate good cause for not disclosing the substance of his expert’s causation theory until trial … . The revelation of the defendants’ causation theory at trial prejudiced the plaintiffs’ ability to prepare for trial because they did not have adequate time to consult or retain an expert neuroradiologist … . Rocco v Ahmed, 2017 NY Slip Op 00207, 2nd Dept 1-11-17

NEGLIGENCE (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRCTICE (DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, NOTICE OF EXPERT OPINION, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EXPERT OPINION (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)

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DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant bus driver’s motion for summary judgment in this intersection accident case was properly denied. Although the bus driver had the right of way, she did not demonstrate freedom from comparative fault:

At the time of the collision, the defendants’ bus was in the process of making a left turn from Hillside Avenue onto Merrick Boulevard from a left turn only lane, and the plaintiff was going straight in the opposite direction on Hillside Avenue. …

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident … . While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, the operator traveling with the right-of-way nevertheless has a duty to use reasonable care to avoid colliding with other vehicles … .

Here, the defendants failed to eliminate all triable issues of fact, including whether Coleman contributed to the happening of the accident by failing to observe the plaintiff’s vehicle as he approached the intersection … . Blair v Coleman, 2017 NY Slip Op 00143, 2nd Dept 1-11-17

NEGLIGENCE (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/TRAFFIC ACCIDENTS (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/INTERSECTIONS (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/COMPARATIVE NEGLIGENCE  (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER.

The Second Department determined the plaintiff driver of a car (Ahmed) was not entitled to summary judgment even though his passenger (Olga) was. Plaintiff driver did not demonstrate freedom from comparative fault in this intersection accident:

“[A] driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed to yield the right-of-way” … . Olga’s affidavit, submitted on behalf of both plaintiffs, failed to establish that Ahmad was free from comparative fault in the happening of the accident … . Since Ahmad failed to meet his prima facie burden for summary judgment … , that branch of the plaintiffs’ motion which was for summary judgment on his behalf against … was properly denied without regard to the sufficiency of the opposition papers … . Al-Mamar v Terrones, 2017 NY Slip Op 00140, 2nd Dept 1-11-17

NEGLIGENCE (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/EVIDENCE (TRAFFIC ACCIDENT, COMPARATIVE FAULT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/COMPARATIVE FAULT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/SUMMARY JUDGMENT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)

DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion for a judgment as a matter of law should not have been granted. The five-inch-long, three-inch-wide and two-inch-deep defect in the step which caused plaintiff to fall was not trivial as a matter of law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects which, considering “all the specific facts and circumstances of the case, not size alone,” do not “unreasonably imperil[ ]” the safety of a pedestrian … . In other words, physically small defects are actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . * * *

Here, [defendant] failed to show that there was no rational process by which the jury could have found in favor of the plaintiff and against it … . Accepting the plaintiff’s evidence as true, and giving him every favorable inference which can be reasonably drawn from that evidence, [defendant] failed to establish that the defect was trivial as a matter of law. … [Defendant] relied on the plaintiff’s photograph of the defect and the testimony of his witness … who testified that the photograph showed “minor wear” to the stair. The dimensions of the defect cannot be ascertained from that one indistinct photograph … . The location of the chip on the walking surface of a stair also figures into the analysis of whether the defect was trivial … . Accordingly, under the circumstances, a rational jury could have concluded that the defect was not trivial. Pitt v New York City Tr. Auth., 2017 NY Slip Op 00203, 2nd Dept 1-11-17

 

NEGLIGENCE (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/TRIVIAL DEFECT (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)

DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION.

The Second Department, reversing Supreme Court, determined that the defendant department store’s (Macy’s) motion for summary judgment in this escalator slip and fall case should have been granted. Apparently plaintiff’s purse strap caught on a broken or protruding piece of metal on the escalator. Macy’s demonstrated it did not have actual or constructive notice of the condition:

Here, Macy’s submitted evidence demonstrating, prima facie, that it did not create or have actual or constructive notice of the alleged defective and dangerous condition of the escalator —i.e., a broken and protruding piece of metal which caught the strap of the plaintiff’s pocketbook and caused her to fall. Through the deposition testimony of its employees and a technician employed by [the escalator company] as well as escalator inspection logs, Macy’s established that the escalator was regularly inspected and maintained, and that it had not received any prior complaints about the escalator before the accident … . Among other things, a Macy’s employee testified at a deposition that he inspected the escalator on the morning of the accident and that it was in working order … . Isaacs v Federated Dept. Stores, Inc., 2017 NY Slip Op 00156, 2nd Dept 1-11-17

NEGLIGENCE (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)/SLIP AND FALL (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)/ESCALATORS (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)

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