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NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT.

The Second Department determined the City emergency response personnel did not enter into a special relationship with plaintiff’s decedent based upon the 911 operator’s assurance an ambulance was on its way. There was some confusion about where plaintiff’s decedent was located which resulted is some delay in the arrival of help:

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that no special relationship existed between it and the decedent … . The defendant demonstrated, prima facie, that the firefighters did not assume an affirmative duty to act on the decedent’s behalf, and, in opposition, the plaintiffs failed to raise a triable issue of fact … . Moreover, even assuming that the 911 operator’s assurance that an ambulance was on its way constituted an assumption by the defendant of an affirmative duty to act on behalf of the decedent, the defendant demonstrated, prima facie, that the decedent and the plaintiffs did not rely to their detriment on that assurance. In opposition, the plaintiffs failed to raise a triable issue of fact. The record does not show that the plaintiffs were lulled by any assurance made by the 911 operator into a false sense of security that caused them “to forego other available avenues of protection” … . Holloway v City of New York, 2016 NY Slip Op 05627, 2nd Dept 7-27-16

MUNICIPAL LAW (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/ GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/NEGLIGENCE (GOVERNMENTAL IMMUNITY, (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)

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WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT.

The Second Department, in a full-fledged opinion by Justice Balkin, determined, where liability is conceded by stipulation, prejudgment interest runs from the date of the subsequent damages verdict, not the date of the stipulation. Here the damages trial was held 2 1/2 years after the stipulation was entered. Had liability been determined by “verdict, report or decision,” interest would have run from the liability determination:

When the determinations of liability and damages are made together, the computation of prejudgment interest under CPLR 5002 is straightforward … . When, however, the determinations of liability and damages are bifurcated, the general rule is that prejudgment interest under CPLR 5002 runs from the date of the “verdict, report or decision” as to liability, rather than from the date of the “verdict, report or decision” as to damages … . * * *

Stipulations are different. They are not adjudications made by a third party, but voluntary agreements, or contracts, by which the opposing parties themselves chart their own course in a way that makes sense for them… . * * *

Clearly, the Legislature did not expressly include stipulations in CPLR 5002. Had the Legislature wished to include stipulations, it easily could have done so, as it has in other statutes… . Mahoney v Brockbank, 2016 NY Slip Op 05630, 2nd Dept 7-27-16

 

CIVIL PROCEDURE (WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/NEGLIGENCE (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/PREJUDGMENT INTEREST (WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/INTEREST (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/DAMAGES (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)

MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED.

The Third Department determined the motion to dismiss the demand for punitive damages was properly denied. The action stemmed from an physical confrontation between plaintiff and defendant, an off-duty police officer:

“Punitive damages may be awarded in an action to recover damages for assault” … , but “are permitted only when a defendant purposefully causes, or is grossly indifferent to causing, injury and defendant’s behavior cannot be said to be merely volitional” … . Defendant’s conduct, in other words, must reflect “a high degree of moral culpability, . . . [be] so flagrant as to transcend mere carelessness, or . . . constitute[] willful or wanton negligence or recklessness” … . * * *

… [The] proof permits the finding that defendant pursued plaintiff and angrily confronted him over his perceived deficiencies as a driver, then physically subdued plaintiff and falsely accused him of starting the confrontation to ensure that he would be detained by police. If true, this aggressive and dishonest behavior by an off-duty state trooper is precisely the type of “morally culpable” behavior that defendant and others should be deterred from engaging in … . George v Albert, 2016 NY Slip Op 05613, 3rd Dept 7-21-16

NEGLIGENCE (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/INTENTIONAL TORT (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/ASSAULT (CIVIL ACTION, MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/PUNITIVE DAMAGES (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)

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COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE.

The Third Department reversed the damages verdict in this medical malpractice action because of an erroneous comparative negligence jury instruction. Plaintiff, while at defendant hospital, has a seizure after he was given hot coffee. Plaintiff was burned when the coffee spilled on him. Although the comparative negligence instruction was appropriate with regard to whether plaintiff should have been given coffee, it was not appropriate with regard to the treatment for the burns:

A comparative negligence instruction is appropriate when there is evidence that a plaintiff may share responsibility for harm that was inflicted as a result of a defendant’s medical malpractice … . However, no comparative negligence instruction should be given when a plaintiff’s alleged negligence preceded the alleged medical malpractice and is not otherwise alleged to have contributed to the harm resulting from the malpractice. A plaintiff’s prior conduct “is not relevant, since the defendant’s liability extends only to that portion of [the plaintiff’s] injuries attributable to the defendant’s malpractice” … . Here, although there was evidence from which the jury could have found that plaintiff shared responsibility for the initial coffee spill, defendant made no claim at trial that plaintiff had any such shared responsibility for defendant’s subsequent deviations from the accepted standard of care in treating plaintiff’s injuries, nor was there any evidence adduced at trial from which the jury could have found that plaintiff shared such responsibility … . Vallone v Saratoga Hosp., 2016 NY Slip Op 05526, 3rd Dept 7-14-16

NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/MEDICAL MALPRACTICE (COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/COMPARATIVE NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/JURY INSTRUCTION (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)

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PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED.

The Second Department, over a dissent, determined defendants Long Island Power Authority (LIPA) and National Grid Electric Services (NGES) were not protected by government-function immunity. The lawsuit alleged defendants were negligent in not cutting off electrical power during Hurricane Sandy, resulting in fires which damaged plaintiffs’ property. The court held the defendants were performing proprietary, not governmental, functions and standards of ordinary negligence therefore applied:

… [T]he provision of electricity is properly categorized as a proprietary function. The provision of electricity has traditionally been a private enterprise in this State, and the Legislature clearly created LIPA as a public authority to substitute for a private enterprise … . * * *

… [T]he functions of electric utilities in the ordinary course of providing electricity and in responding adequately to a hurricane are both part of the proprietary core functions of their business. True, here, the appellants’ actions, because of the size of LIPA’s customer base, affected many people and many businesses. True, too, LIPA’s response to the hurricane may have involved complex considerations. But every private electric utility in the region faced the same hurricane. Heeran v Long Is. Power Auth. (LIPA), 2016 NY Slip Op 05486, 2nd Dept 7-13-16

 

NEGLIGENCE (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/GOVERNMENTAL IMMUNITY (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PUBLIC UTILITIES (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PROPRIETARY FUNCTION (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)

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SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT.

The Second Department, over a dissent, determined plaintiff-student’s complaint against the school was properly dismissed. Plaintiff was attacked by several alleged gang members shortly after leaving school grounds. The court held there was no evidence plaintiff was released by the school into a dangerous situation which the school had a hand in creating:

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the assault occurred at a time when the plaintiff was not on school property and no longer in the defendant’s custody or under its control and was, thus, outside of the orbit of its authority … . The defendant also demonstrated, prima facie, that the plaintiff was not released into a foreseeably hazardous setting that the defendant had a hand in creating … . Diaz v Brentwood Union Free Sch. Dist., 2016 NY Slip Op 05485, 2nd Dept 7-13-16

NEGLIGENCE (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)/EDUCATIOON-SCHOOL LAW (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)/ASSAULT  (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)

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SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS.

The Second Department, reversing Supreme Court, determined the defendant school could not be held liable for a student’s injury during recess. There was adequate supervision. The student, who had a medical condition and was standing in an area where students were not allowed to play sports, was struck by a ball kicked by another student:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they provided adequate supervision to the infant plaintiff during recess … , and, in any event, that any alleged lack of supervision was not a proximate cause of the infant plaintiff’s injuries … . Perez v Comsewogue School Dist., 2016 NY Slip Op 05488, 2nd Dept 7-13-16

 

NEGLIGENCE (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)/EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)/NEGLIGENT SUPERVISION (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)

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SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH.

The Second Department, in a full-fledged opinion by Justice Dillon, resolving a question of first impression in the Second Department, determined a snow-removal contractor could not be held liable for plaintiff’s slip and fall on ice without proof the icy condition was created or exacerbated by the contractor. Here, the contractor had plowed the snow on the same day as the slip and fall. Proof that the area was not salted was deemed insufficient:

We are called upon to determine, for the first time in this judicial department, whether a snow removal contractor may be found liable in a personal injury action under Espinal v Melville Snow Contrs. (98 NY2d 136) on the ground that the snow removal contractor’s passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition. We find that liability cannot be imposed under such circumstances. * * *

The trial record is devoid of any evidence regarding the cause, creation, or exacerbation of the icy condition. No evidence was presented as to when the ice first materialized or how long it had been present before the accident. There were no climatology records admitted into evidence regarding the nature of the recent storm, the air temperature prior, during, and after the storm, or potential snowmelt and refreeze. There was no evidence as to when the bullpen was plowed in relation to the time of the plaintiff’s accident, and there was no expert testimony regarding the standard of care that may have been violated if, contractual language aside, no salt or sand/salt mixture were applied under the circumstances present. Moreover, there was no evidence that the icy condition at the bullpen worsened between when it arguably should have been salted and the time of the plaintiff’s accident.

Absent at least some of the foregoing evidence, a determination that the failure to salt created or exacerbated the icy condition … would be speculative. Indeed, a failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a pre-existing ice condition from improving … . Santos v Deanco Servs., Inc., 2016 NY Slip Op 05489, 2nd Dept 7-13-16

 

NEGLIGENCE (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/CONTRACT LAW (NEGLIGENCE OF CONTRACTOR TO THIRD PARTY, SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/ESPINAL EXCEPTIONS (NEGLIGENCE OF CONTRACTOR TO THIRD PARTY, SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)

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NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED.

The Fourth Department, over an extensive dissent, determined plaintiffs’ negligent hiring/retention cause of action against the city and city police department was properly dismissed. The action stemmed from incidents of sexual abuse by a police officer (O’Shei). It was alleged the officer should not have been retained after suffering brain injury:

Plaintiffs contend that the City defendants failed to do an appropriate evaluation of O’Shei’s neuropsychological status after the second motor vehicle accident. Recovery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” … , i.e., “that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Thus, contrary to plaintiffs’ contention, the City defendants were under no common-law duty to institute specific procedures for supervising or retaining O’Shei inasmuch as they did not know of facts that would lead a reasonably prudent person to investigate the employee … .

* * * …[T]his is a retention case, and it is well settled that the common-law duty for retention does not require as high a degree of care as does hiring … . Pater v City of Buffalo, 2016 NY Slip Op 05462, 4th Dept 7-8-16

 

NEGLIGENCE (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/EMPLOYMENT LAW (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/MUNICIPAL LAW (POLICE OFFICERS, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/NEGLIGENT RETENTION (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)

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SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND.

The Third Department determined the complaint against the school district stemming from infant plaintiff’s fall on the school playground should have been completely dismissed. The students were told to stay on the blacktop area adjacent to the playground because the playground had ice and snow on it:

Where, as here, the underlying accident “occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate [cause] of the injury and summary judgment in favor of the school defendant is warranted” … . * * *

We reach a similar conclusion with regard to plaintiff’s premises liability claim. To prevail on its motion for summary judgment, defendant was required to “establish as a matter of law that it maintained the [playground] in question in a reasonably safe condition and that it neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof” … . * * * … [D]efendant’s expert opined that there was “no requirement or obligation for [defendant] to clean snow and ice off of the playground surface” — a task that would have been “nearly impossible” due to the rubberized surface material. With respect to the playground equipment itself, defendant’s expert concluded that, inasmuch as plaintiff and her classmates were instructed not to use such equipment, defendant was not required to clear the equipment of snow and ice … . Such proof was, in our view, sufficient to discharge defendant’s initial burden on its motion for summary judgment. Elbadwi v Saugerties Cent. Sch. Dist., 2016 NY Slip Op 05421, 3rd Dept 7-7-16

NEGLIGENCE (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)/EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)/NEGLIGENT SUPERVISION (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)/PREMISES LIABILITY (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)

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