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WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS.

The Second Department after the grant of defendant’s summary judgment motion in this slip and fall case. The wheel stop over which plaintiff tripped was deemed open and obvious and not inherently dangerous:

Although a landowner has a duty to maintain its premises in a reasonably safe manner … , there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally, “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop that was open and obvious and not inherently dangerous. Among other things, the plaintiff testified at her deposition that she noticed the yellow cement wheel stops in the parking lot shortly before her accident … . Bogaty v Bluestone Realty NY, Inc., 2016 NY Slip Op 08343, 2nd Dept 12-14-16

 

NEGLIGENCE (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/SLIP AND FALL (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/WHEEL STOPS (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/OPEN AND OBVIOUS (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)

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INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE.

The Second Department determined Supreme Court correctly set aside a verdict in a slip and fall case as inconsistent. The jury found plaintiff was negligent but her negligence was not a substantial factor in causing her injuries (she slipped and fell on a wet floor in defendant’s store). But the jury went on to attribute 15% of the fault for the accident to plaintiff:

… [W]hen a jury’s verdict is internally inconsistent, the trial court must order either reconsideration by the jury or a new trial … . Under the circumstances here, the jury’s verdict as to liability was internally inconsistent because the jury attributed 15% of the fault for the accident to the plaintiff, despite having found that the plaintiff’s negligence was not a substantial factor in causing her injuries … . The Supreme Court properly determined that the jury was confused about the meaning of the court’s charge regarding proximate cause when it returned its liability verdict … . Magee v Cumberland Farms, Inc., 2016 NY Slip Op 08354,  2nd Dept 12-14-16

CIVIL PROCEDURE (INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE)/VERDICT, MOTION TO SET ASIDE (INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASSIDE)/NEGLIGENCE (SLIP AND FALL, INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE)/SLIP AND FALL (INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE)

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JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET.

The First Department, over a dissent, determined the driver who caused the injury to plaintiff’s leg was properly excluded from the verdict sheet in this medical malpractice action. Only the treatment of the leg injury (amputation) was before the jury, not the original injury:

[T]he court [did not] err in denying defendants’ request to place the driver of the vehicle that struck plaintiff, who settled prior to institution of the instant action, on the verdict sheet. Defendants are subsequent tortfeasors, and the jury was correctly charged that its award was to be limited to the exacerbation of the original injury caused by malpractice … . Defendants’ argument that plaintiff’s original injury and subsequent amputation were indivisible is without merit, in that the experts testified as to what the condition of the leg would have been if it had been saved … . Defendants’ arguments concerning General Obligations Law § 15-108 are academic, given that the court reduced the judgment based upon the settlement received by the settling driver. Marin v New York City Health & Hosps. Corp., 2016 NY Slip Op 08294, 1st Dept 12-8-16

NEGLIGENCE (MEDICAL MALPRACTICE, JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET)/MEDICAL MALPRACTICE (JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET)

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CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing Supreme Court in this traffic accident case, determined the causes of action against abutting property owners (the Herlichs) and the county alleging obstruction of sight at an intersection should not have been dismissed:

“A homeowner has no duty under the common law to prevent vegetation from creating a visual obstruction to users of a public roadway, but a duty to such users may be created by statute or ordinance” … . “[W]here a specific regulatory provision . . . imposes upon property owners a duty to prevent vegetation from visually obstructing the roadway, proof of noncompliance with the regulatory provision may give rise to tort liability for any damages proximately caused thereby” … . Here, the Herlich defendants failed to establish their prima facie entitlement to judgment as a matter of law, as they failed to demonstrate that the hedge on their property did not constitute a visual obstruction in violation of Code of the Town of Oyster Bay chapter 246 § 246-4.4.4, and Code of the Village of Massapequa Park chapter 298, article I, § … . …

“It has long been established that a governmental body, be it the State, a county or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of the duty” … . Here, the County, which concedes that the section of Park Boulevard where the accident occurred was within its jurisdiction, failed to demonstrate, prima facie, that Park Boulevard was maintained in a reasonably safe condition with unobstructed sight lines. Dutka v Odierno, 2016 NY Slip Op 08196, 2nd Dept 12-7-16

 

NEGLIGENCE (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/TRAFFIC ACCIDENTS (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/OBSTRUCTION OF SIGHT (TRAFFIC ACCIDENTS, CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/HIGHWAYS AND ROADS (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)/INTERSECTIONS (CAUSES OF ACTION AGAINST ABUTTING PROPERTY OWNERS AND COUNTY ALLEGING OBSTRUCTION OF SIGHT AT AN INTERSECTION SHOULD NOT HAVE BEEN DISMISSED)

ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT.

The Second Department determined plaintiff’s motion for summary judgment in this traffic accident case was properly denied. Plaintiff did not demonstrate freedom from comparative fault. Plaintiff had the right-of-way at the time of the collision:

While an operator of a motor vehicle traveling with the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield … , the driver with the right-of-way nonetheless also has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles … . There can be more than one proximate cause of a motor vehicle accident and, thus, “a plaintiff moving for summary judgment on the issue of liability in an action alleging negligence must establish, prima facie, not only that the defendant was negligent but that the plaintiff was free from comparative fault” … . The issue of comparative fault is generally a question for the trier of fact … .

Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, as her submissions were insufficient to eliminate all triable issues of fact as to whether she contributed to the happening of the accident … . Taylor v Brat Auto Sales, Ltd., 2016 NY Slip Op 08220, 2nd Dept. 12-7-16

 

NEGLIGENCE (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/INTERSECTIONS (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/SUMMARY JUDGMENT (COMPARATIVE FAULT, TRAFFIC ACCIDENTS, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)

ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE.

The Second Department determined the abutting property owner was entitled to summary judgment in this sidewalk slip and fall case. No statute or ordinance imposed a duty to maintain the sidewalk on the property. And the property owner demonstrated it did not create the icy condition:

An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law … , by establishing that no statute or ordinance imposed upon it tort liability for failure to maintain the adjoining sidewalk, and that it did not create the alleged icy condition. Escobar v Lowe Props., LLC, 2016 NY Slip Op 08197, 2nd Dept 12-7-16

NEGLIGENCE (ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE)/SLIP AND FALL (ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE)/SIDEWALKS (ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE)

DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE.

The Second Department determined defendant, which owned property abutting a sidewalk, was entitled to summary judgment in this slip and fall case under the storm in progress doctrine. The court laid out all of the applicable law:

“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, “if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied” … .

If a property owner has elected to clear a sidewalk during a storm in progress, the owner is required to act with reasonable care and may be liable if its efforts create a hazardous condition or exacerbate a natural hazard created by the storm … . The mere failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm … . Aronov v St. Vincent’s Hous. Dev. Fund Co., Inc., 2016 NY Slip Op 08190, 2nd Dept 12-7-16

 

NEGLIGENCE (DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)/SLIP AND FALL  (DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)/SIDEWALKS (SLIP AND FALL,  DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)/STORM IN PROGRESS (DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE)

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EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT.

The First Department, reversing Supreme Court, determined plaintiff had adequately pled that the defendant law firm was equitably estopped from arguing an assignment, which was drawn up by the law firm, did not assign to plaintiff the right to bring a malpractice action against the law firm. The law firm had missed a deadline. Although the assignment could not be interpreted to include the malpractice claim, the equitable estoppel doctrine could be applied to prohibit the law firm from arguing the issue:

The motion court correctly found that the subject assignment, which merely transferred the assignor’s “entire right, title and interest in and to the [call] option contained in Paragraph 8 of” another contract, did not explicitly assign tort claims … . The assignment is not ambiguous; even if it were (and if we therefore considered parol evidence), an unexpressed understanding does not suffice … .

However, accepting plaintiff’s affidavit in opposition to defendants’ motion as true, we find that plaintiff sufficiently pleaded that defendants should be equitably estopped from arguing that the assignment did not assign tort claims. Contrary to defendants’ contention, estoppel can be based on silence as well as conduct … . Under these circumstances, where defendants drafted the assignment at a time when it represented … plaintiff, and that interpreting the assignment to exclude tort claims would mean that neither the assignor nor plaintiff, the assignee, would be able to sue defendants for malpractice for failing to exercise the call option in a timely manner, we find that the “special circumstances” exception to the privity requirement applies … . Deep Woods Holdings LLC v Pryor Cashman LLP, 2016 NY Slip Op 08156, 1st Dept 12-6-16

NEGLIGENCE (LEGAL MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/LEGAL MALPRACTICE EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/CONTRACT LAW (ASSIGNMENT, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/ASSIGNMENT (LEGAL MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/ATTORNEYS (MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/EQUITABLE ESTOPPEL (LEGAL MALPRACTICE, EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)/CIVIL PROCEDURE (EQUITABLE ESTOPPEL DOCTRINE ADEQUATELY PLED, LAW FIRM MAY BE PROHIBITED FROM ARGUING THE ASSIGNMENT IT DREW UP FOR PLAINTIFF DID NOT ASSIGN PLAINTIFF THE RIGHT TO BRING A MALPRACTICE ACTION AGAINST IT)

A SMOOTH SLIPPERY SURFACE, STANDING ALONE, WILL NOT SUPPORT A CAUSE OF ACTION FOR NEGLIGENCE IN A SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined defendant was entitled to summary judgment in a slip and fall case. The court noted that a smooth surface which is slippery, standing alone, does not raise a question of fact:

The plaintiffs commenced this action, alleging that the defendants had negligently applied wax to the staircase, making it dangerously slippery. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied the motion. We reverse.

During the injured plaintiff’s deposition, the transcript of which was submitted in support of the defendants’ motion, he testified that he did not see any foreign substance, liquids, or other slippery substance on the steps, either before or after the subject accident. “[I]n the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence” … . Here, in support of their motion for summary judgment dismissing the complaint, the defendants submitted evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as was based on the defendants’ alleged negligent application of wax or polish to the subject staircase … . Kapoor v Randlett, 2016 NY Slip Op 07927, 2nd Dept 11-23-16

 

NEGLIGENCE (A SMOOTH SLIPPERY SURFACE, STANDING ALONE, WILL NOT SUPPORT A CAUSE OF ACTION FOR NEGLIGENCE IN A SLIP AND FALL CASE)/SLIP AND FALL (A SMOOTH SLIPPERY SURFACE, STANDING ALONE, WILL NOT SUPPORT A CAUSE OF ACTION FOR NEGLIGENCE IN A SLIP AND FALL CASE)

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FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS.

The Third Department determined the action against the city alleging negligence resulting in the destruction of plaintiffs’ property by fire should not have been dismissed. Fire department personnel told the plaintiffs the fire had been extinguished and that it was safe to reenter. However the fire rekindled. The Third Department held that there was a “special relationship” between the city and the plaintiffs stemming from the assurances the fire was out:

To establish a special relationship, plaintiffs were required to show: “(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” … .

Construing the evidence in the light most favorable to plaintiffs and providing them the benefit of every favorable inference …, we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first element, there is no dispute that defendants’ agents dispatched the Department to plaintiffs’ residence in response to their 911 call for assistance and that the responding crew thereafter assumed control over the ongoing fire. Even if the Department’s actions in that regard simply constituted the performance of a duty owed to the public generally … , we are of the view that, by making affirmative representations to plaintiffs that the fire had been fully extinguished and that it was safe to reenter the home, the Department assumed an affirmative duty to plaintiffs … . As for the second and third elements, knowledge on the part of the Department that inaction could result in harm can be reasonably inferred from the circumstances … , and the Department’s employees undisputedly had direct contact with plaintiffs. With respect to the final element, plaintiffs allege that they relied upon the Department’s assurances that the fire was completely extinguished in choosing to leave their home unattended for the evening. Trimble v City of Albany, 2016 NY Slip Op 07912, 3rd Dept 11-23-16

 

MUNICIPAL LAW (FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)/NEGLIGENCE (MUNICIPAL LAW, FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)/IMMUNITY (MUNICIPAL LAW, FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)/FIRE (MUNICIPAL LAW, NEGLIGENCE, FIRE REKINDLED AFTER FIRE DEPARTMENT PERSONNEL ASSURED PLAINTIFFS THE FIRE WAS OUT, NEGLIGENCE CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFFS)

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