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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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NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED.

The Third Department, reversing Supreme Court, determined infant plaintiff had raised a question of fact whether the school was liable for negligent supervision stemming from harassment and bullying by fellow students. The Third Department further determined the Dignity for All Students Act (Education Law section 10) does not create a private right of action. With respect to negligent supervision, the court wrote:

“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” … . “In that regard, a school district is held to the same degree of care as would a reasonably prudent parent placed in comparable circumstances” … . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Furthermore, the injuries sustained by a plaintiff must be proximately caused by the school’s breach of its duty to provide adequate supervision … . Such issues regarding adequate supervision and proximate cause are generally questions left to the trier of fact to resolve … . Motta v Eldred Cent. Sch. Dist., 2016 NY Slip Op 05424, 3rd Dept 7-7-16

NEGLIGENCE (NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)/BULLYING (NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION STEMMING FROM HARASSMENT AND BULLYING BY FELLOW STUDENTS SHOULD NOT HAVE BEEN DISMISSED)

IN A REAR-END COLLISION, INNOCENT PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S LACK OF FAULT, BUT CONFLICTING FACTS PRECLUDED SUMMARY JUDGMENT AGAINST ONE OR BOTH DEFENDANTS.

The First Department, in a full-fledged opinion by Justice Renwick clarifying the precedents, found that plaintiff, an innocent driver struck from behind, was entitled to summary judgment only on the issue of his lack of culpability in the accident. Because plaintiff submitted the depositions of the two defendant drivers which presented conflicting evidence about their culpability, plaintiff was not entitled to summary judgment against one or both defendants:

Plaintiff has established his lack of culpable conduct as an undisputed innocent driver, which entitles him to summary judgment on lack of fault pursuant to CPLR 3212(g) … . However … plaintiff has not established entitlement to summary judgment on liability against either defendant driver because of the conflicting and unresolved facts concerning the accident and which vehicle was responsible for the accident. Oluwatayo v Dulinayan, 2016 NY Slip Op 05455, 1st Dept 7-7-16

NEGLIGENCE (IN A REAR-END COLLISION, INNOCENT PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S LACK OF FAULT, BUT CONFLICTING FACTS PRECLUDED SUMMARY JUDGMENT AGAINST ONE OR BOTH DEFENDANTS)/REAR END COLLISIONS (IN A REAR-END COLLISION, INNOCENT PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S LACK OF FAULT, BUT CONFLICTING FACTS PRECLUDED SUMMARY JUDGMENT AGAINST ONE OR BOTH DEFENDANTS)/VEHICLE ACCIDENTS (IN A REAR-END COLLISION, INNOCENT PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S LACK OF FAULT, BUT CONFLICTING FACTS PRECLUDED SUMMARY JUDGMENT AGAINST ONE OR BOTH DEFENDANTS)

QUESTION OF FACT WHETHER PARKED TRUCK WAS A PROXIMATE CAUSE OF A BICYCLIST’S INJURIES.

The First Department determined there was question of fact whether the UPS truck parked in a no-standing zone was a proximate cause of plaintiff-bicyclist’s injuries. Plaintiff alleged the protrusion of the UPS into the lane of travel forced him to swerve toward a bus and then jump from his bicycle:

Defendant UPS argues that, although its truck was parked in a no-standing zone in violation of 34 RCNY 4-08(a)(3) at the time of the accident involving plaintiff’s bicycle and defendant MTA’s bus, its truck was not a proximate cause of the accident. However, the record presents issues of fact as to how far the UPS truck was protruding into the lane of travel, whether plaintiff swerved toward the bus in an effort to avoid the UPS truck, and whether plaintiff was forced to jump from his bicycle in order to avoid being slammed into the UPS truck as his bicycle was being dragged by the bus. Since a reasonable factfinder could conclude that the accident was a foreseeable consequence of UPS’s illegal parking, summary judgment was properly denied … . Santana v MTA Bus Co., 2016 NY Slip Op 05450, 1st Dept 7-7-16

NEGLIGENCE (QUESTION OF FACT WHERE PARKED TRUCK WAS A PROXIMATE CAUSE OF A BICYCLIST’S INJURIES)/BICYCLE ACCIDENTS (QUESTION OF FACT WHERE PARKED TRUCK WAS A PROXIMATE CAUSE OF A BICYCLIST’S INJURIES)/PARKED VEHICLES (QUESTION OF FACT WHERE PARKED TRUCK WAS A PROXIMATE CAUSE OF A BICYCLIST’S INJURIES)

BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT.

The First Department, reversing Supreme Court, determined defendant was entitled to summary judgment in this slip and fall case because the alleged defect was trivial. Plaintiff alleged tripped over a 3/8-inch-high bar at the entrance to an enclosure for shopping carts (cart corral):

The submissions on the motion establish that “the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . [Defendant] presented photographs taken by plaintiff’s photographer, which show that the metal bar was only three-eighths of an inch above the surface of the parking lot. Those photographs, and others in the record that were shown to plaintiff at her deposition, establish that the bar was not hidden or covered in any way and did not constitute a trap. Myles v Spring Val. Marketplace, LLC, 2016 NY Slip Op 05351, 1st Dept 7-5-16

NEGLIGENCE (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)/SLIP AND FALL (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)/TRIVIAL DEFECT (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)

QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE.

The First Department determined there was a question of fact whether plaintiff assumed the risk of being struck by defendant skier because defendant acted recklessly. Plaintiff was standing at the bottom of the ski slope when defendant collided with her:

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” … .

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances … . Horowitz v Chen, 2016 NY Slip Op 05335, 1st Dept 7-5-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)/ASSUMPTION OF RISK (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)/SKI ACCIDENT (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)

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EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined evidence of a consent order, in which defendant physician acknowledged a negligent failure to adequately monitor a dozen patients for whom he prescribed medication, should not have been admitted in evidence. The essence of the malpractice claim was defendant’s continued prescription of an anti-depressant for plaintiff’s decedent over a ten-year period, without seeing plaintiff’s decedent in his office, proximately caused plaintiff’s decedent’s suicide:

The record establishes that the Consent Order was neither probative of defendant’s negligence or the question of proximate cause. As part of the Consent Order defendant agreed not to contest negligent treatment of certain anonymous patients, none of whom was the decedent. As such, defendant preserved his objections to factual allegations related to decedent and any charges of misconduct based on those allegations. Since the Consent Order did not establish facts concerning defendant’s treatment of decedent, it was not probative as to that issue. In any event, given defendant’s pre-trial concession that he deviated from accepted medical practice, the issue of negligent treatment did not require resolution by the jury.

Further, any possible relevance of the Consent Order’s contents was outweighed by the obvious undue prejudice of his repeated violations of accepted medical standards … . The Consent Order was nothing more than evidence of unrelated bad acts, the type of propensity evidence that lacks probative value concerning any material factual issue, and has the potential to induce the jury to decide the case based on evidence of defendant’s character … . Mazella v Beals, 2016 NY Slip Op 05182, CtApp 6-30-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/EVIDENCE (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/MEDICAL MALPRACTICE (EVIDENCE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/PRIOR BAD ACTS (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)

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LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE; FRAUD CAUSE OF ACTION CANNOT BE BASED ON THE RELIANCE OF A THIRD-PARY, AS OPPOSED TO THE PLAINTIFF, UPON A MISREPRESENTATION.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over two dissenting opinions, determined: (1)  a laboratory (LabCorp) which tests urine for the presence of drugs did not owe a duty of care to a testee based upon the violation of a federal regulation which did not involve a scientific testing procedure; and (2), a fraud cause of action against the laboratory could not be based upon a third party’s, as opposed to the plaintiff’s, reliance upon a misrepresentation.  Here plaintiff, a physician and a pilot, was selected for a random drug test. Plaintiff could not produce enough urine for the test and left the laboratory, returning the next day. Under Federal Aviation Administration (FAA) regulations, plaintiff’s leaving the laboratory constituted a refusal to take the test. The FAA revoked plaintiff’s airman certificates and his authority to conduct FAA mandated pilot examinations. A court ultimately restored plaintiff’s certificates and examination authority. In his lawsuit against the laboratory, plaintiff alleged: (1) the laboratory was negligent in not informing him of the procedures and rules surrounding the inability to provide a urine sample; and (2) a laboratory employee (Montalvo) misrepresented to the FAA that plaintiff was uncooperative during the test.

… [I]n Landon (22 NY3d 1) we held that a drug testing laboratory can be liable to a test subject under the common law for negligent testing of a biological sample. We decline to extend Landon’s reasoning to impose a duty upon a laboratory to test subjects that requires the laboratory to adhere to aspects of the federal regulations and guidelines that do not implicate the scientific integrity of the testing process. * * *

Plaintiff alleges fraud against LabCorp, contending that Montalvo, LabCorp’s employee, made false statements to the FAA investigators, which they relied on to plaintiff’s detriment. Specifically, plaintiff points to Montalvo’s statement to the FAA investigators that plaintiff was on his cell phone and uncooperative during the test, making it impossible to warn him of the consequence of leaving the testing site without giving a sample, which statement the FAA relied on in revoking plaintiff’s airman certificates. We hold that under New York law, such third-party reliance does not satisfy the reliance element of a a fraud claim. Pasternack v Laboratory Corp. of Am. Holdings, 2016 NY Slip Op 05179, CtApp 6-30-16

 

NEGLIGENCE (LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE); DRUG-TESTING (LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE)/LABORATORIES (DRUG-TESTING, NEGLIGENCE, LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE)/FRAUD (FRAUD CAUSE OF ACTION CANNOT BE BASED ON THE RELIANCE OF A THIRD-PARY, AS OPPOSED TO THE PLAINTIFF, UPON A MISREPRESENTATION)

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VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF.

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff fell on a concrete sidewalk and sued both the village and the abutting property owner. The village code required abutting property owners to keep sidewalks in good repair but did not impose tort liability for failure to keep the sidewalk in good epair. To hold an abutting property owner liable, therefore, plaintiff must demonstrate the property owner created the dangerous condition or subjected the sidewalk to special use:

Although the Code of Incorporated Village of Valley Stream requires an abutting landowner to keep a sidewalk in good and safe repair …. , it does not specifically impose tort liability for a breach of that duty … . Thus, without proof that [the property owner] either created the alleged defective condition or caused it to occur because of a special use, which is absent in the record before us, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability … . Obee v Ricotta, 2016 NY Slip Op 05129, 2nd Dept 6-29-16

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/SLIP AND FALL (SIDEWALKS,  VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)/SIDEWALKS (SLIP AND FALL, VILLAGE CODE DID NOT SPECIFICALLY MAKE ABUTTING PROPERTY OWNERS LIABLE IN TORT FOR FAILING TO MAINTAIN A SIDEWALK; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PLAINTIFF)

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