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NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED.

The Second Department determined a negligent supervision action against a day care provider was properly dismissed. Infant plaintiff (Kevin) was hanging by his hands when a student pulled one of his hands off, causing him to fall:

 

The defendant, as a provider of day care services, was under a duty to adequately supervise the children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . In general, the duty of a day care provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances … . However, a child care provider cannot reasonably be expected to continuously supervise and control all movements and activities of the children in its care, and cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among those children … . To establish a breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of a fellow child, a plaintiff must show that the day care provider “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” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the accident was the result of a sudden and unforeseeable act of another child, and that it had no actual or constructive notice of prior similar conduct … . The defendant further established, prima facie, that the incident occurred in so short a period of time that its alleged lack of supervision was not a proximate cause of Kevin’s alleged injuries … . Lopez v D & D Day Care, Inc., 2016 NY Slip Op 01298, 2nd Dept 2-24-16

 

NEGLIGENCE (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/NEGLIGENT SUPERVISION (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/EDUCATION-SHCOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/DAY CARE (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)

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SNOW-REMOVAL COMPANY NOT LIABLE TO PLAINTIFF BECAUSE PLAINTIFF WAS NOT A PARTY TO THE SNOW-REMOVAL CONTRACT; NO NEED FOR DEFENDANT TO ADDRESS ESPINAL EXCEPTIONS IN ITS SUMMARY JUDGMENT MOTION IF THE EXCEPTIONS ARE NOT PLED BY THE PLAINTIFF.

The Second Department determined defendant snow-removal company, Brickman, was entitled to summary judgment dismissing the complaint in this slip and fall case. Because the plaintiff was not a party to the snow-removal contract with the owner of the property, Brickman owed no duty to plaintiff. The court noted that, because the plaintiff did not allege the applicability of any of the “Espinal” exceptions to the general rule against tort liability arising from a contract, the defendant was not obligated to address those exceptions in its summary judgment motion:

 

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, there are three exceptions to that general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Brickman made a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the plaintiff was not a party to its snow removal agreement, and that it thus owed her no duty of care … . Inasmuch as the plaintiff did not allege facts in the complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions … , Brickman was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … .

Once Brickman made its prima facie showing, the burden shifted to the plaintiff to come forward with proof sufficient to raise a triable issue of fact as to the applicability of one or more of the Espinal exceptions … . In opposition to Brickman’s prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether Brickman launched a force or instrument of harm, whether she detrimentally relied on the continued performance of Brickman’s duties, or whether Brickman entirely displaced the owner’s duty to maintain the premises in a safe condition … . Bryan v CLK-HP 225 Rabro, LLC, 2016 NY Slip Op 01280, 2nd Dept 2-24-16

 

NEGLIGENCE (NO TORT LIABILTIY AROSE FROM SNOW-REMOVAL CONTRACT, PLAINTIFF NOT A PARTY)/SUMMARY JUDGMENT (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORT LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/CONTRACT LAW (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/ESPINAL EXCEPTIONS (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)

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LEVEL OF SUPERVISORY CONTROL NEEDED TO SUPPORT A LABOR LAW 200 CAUSE OF ACTION AND THE CRITERIA FOR SETTING ASIDE A VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE EXPLAINED.

The Second Department determined defendants’ motions to set aside the verdict in this Labor Law 200/common law negligence action were properly denied. The court explained the level of supervision required to hold gas station subtenants liable for a forklift injury, and the criteria for setting aside a verdict:

 

“To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when [the] defendant bears the responsibility for the manner in which the work [was] performed” … . “[M]ere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” … . “If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law” … .

… “To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that there is no rational process by which the jury could find for the plaintiff against the moving defendant” … . In considering a motion for judgment as a matter of law, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … . “In making this determination, a court must not engage in a weighing of the evidence,’ nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question'” … . …

“[A] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . “Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” … . The apportionment of fault among the parties is generally an issue of fact for the jury … , and the jury’s apportionment of fault should not be set aside unless it could not have been reached based upon a fair interpretation of the evidence … . Hernandez v Pappco Holding Co., Ltd., 2016 NY Slip Op 01295, 2nd Dept 2-24-16

 

LABOR LAW (LEVEL OF SUPERVISORY CONTROL NEEDED TO SUPPORT A LABOR LAW 200 CAUSE OF ACTION)/NEGLIGENCE (LEVEL OF SUPERVISORY CONTROL NEEDED TO SUPPORT A LABOR LAW 200 CAUSE OF ACTION)/CIVIL PROCEDURE (CRITERIA FOR SETTING ASIDE A VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE)/VERDICT, MOTION TO SET ASIDE (CRITERIA FOR SETTING ASIDE A VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE)

DEFENDANTS DEMONSTRATED SIDEWALK DEFECT WAS TRIVIAL.

The First Department determined defendants were entitled to summary judgment in this slip and fall case because the sidewalk defect was trivial:

 

Defendants established their entitlement to judgment as a matter of law, in this action where plaintiff alleges that she was injured when she tripped and fell on a long crack between pavement flags in a walkway that was between two buildings owned by defendants. Defendants submitted evidence, including deposition testimony, an affidavit of an inspector who measured the crack as 1/4″ deep, and photographs, demonstrating that the subject defect was trivial and thus, not actionable … . The photographs show that the crack was in the middle of the walkway, in a well-illuminated location, and was not hidden or covered in any way so as to make it difficult to see and identify as a hazard … .

In opposition, plaintiff failed to raise a triable issue of fact as to whether the crack in the walkway constituted a dangerous condition under the circumstances. She provided no affidavit of a person who had measured the crack, but only her own and her daughter’s estimates of its depth. Garcia v 549 Inwood Assoc., LLC, 2016 NY Slip Op 01249, 1st Dept 2-18-16

 

NEGLIGENCE (SIDEWALK DEFECT TRIVIAL)/SLIP AD FALL (SIDEWALK DEFECT TRIVIAL)/TRIVIAL DEFECT (SIDEWALK CRACK)

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INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL.

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should have been granted. Infant plaintiff was injured playing basketball when he struck the pole holding the hoop. The Second Department held the school district had demonstrated infant plaintiff assumed the risk of that injury:

 

The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity “is aware of the risks [inherent in the activity]; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “However, the doctrine will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … .

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging premises liability by demonstrating that the subject pole was open and apparent, that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard, that the defendant did nothing to conceal or unreasonably increase the risk, and that the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions … . Altagracia v Harrison Cent. Sch. Dist., 2016 NY Slip Op 01141, 2nd Dept 2-17-16

 

NEGLIGENCE (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/ASSUMPTION OF RISK (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/BASKETBALL (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/EDUCATION-SCHOOL LAW (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)

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CITY IS NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN AN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING A POLICE VAN.

The First Department, reversing Supreme Court, determined the city’s motion for summary judgment in this car-accident case should have been granted. Plaintiff was struck by a police van driven by an unlicensed car-wash attendant. The city was not liable for negligently entrusting the vehicle to the unlicensed driver because, inter alia, there was no duty to make sure the attendant had a license before handing over the keys to him. In addition, the city was not vicariously liable as the owner of the van pursuant to Vehicle and Traffic Law 388. Police vehicles are statutorily exempt from such liability. Plaintiff argued that the exemption did not apply because the van was not being “operated” by the police department at the time of the accident. The First Department held that “operated” in this context means “to exercise power over,” and not “driven:”

 

Plaintiff’s argument that the NYPD traffic van does not qualify as a “police vehicle,” because it was not being “operated by the police department” at the time of the accident, but, rather, was being “operated” by the car wash attendant, assumes that the term “operated” means “to cause to function” (Merriam- Webster Online Dictionary, http://beta.merriam-webster.com/dictionary/operate [accessed Jan. 27, 2016]) or is a substitute for the word “driven.” This ignores the common use of the term “operated” as an intransitive verb meaning “to exert power or influence” (id.). Under plaintiff’s interpretation, a police vehicle would not qualify as such under Vehicle and Traffic Law § 132-a, unless it was being driven by “the police department,” which strains common sense, since a police department cannot be the driver of a vehicle.

More importantly, plaintiff’s interpretation would strip the exemption provided to police vehicles in Vehicle and Traffic Law § 388(2) of its force and effect. Vehicle and Traffic Law § 388 specifically contemplates that someone, other than the vehicle’s owner, is driving the vehicle when an injury occurs. If “police vehicles” are only exempted when an owner or owner equivalent is driving, there would be no need for the exemption in Vehicle and Traffic Law § 388(2). This interpretation is untenable as it would render the police vehicle exemption in Vehicle and Traffic Law § 388(2) meaningless … . Guevara v Ortega, 2016 NY Slip Op 01106, 1st Dept 2-16-16

 

NEGLIGENCE (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/MUNICIPAL LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/VEHICLE AND TRAFFIC LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)

DEFENDANTS DID NOT DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the defendants in a slip and fall case were not entitled to summary judgment because they did not affirmatively demonstrate a lack of notice of the icy condition:

 

Defendants did not demonstrate that they lacked constructive notice of the icy condition since they did not proffer an affidavit or testimony based on personal knowledge as to when its employees last inspected the driveway or as to the driveway’s condition prior to the accident … . The testimony of defendants’ branch manager as to his usual and customary practice of inspecting the premises each morning does not satisfy defendants’ burden of showing that they lacked notice of the alleged condition of the driveway prior to the accident, as there was no evidence to show that the manager’s customary practice was followed on the day of the accident … . Singh v Citibank, N.A., 2016 NY Slip Op 01120, 1st Dept 2-16-16

 

NEGLIGENCE (SLIP AND FALL, DEFENDANTS FAILED TO AFFIRMATIVELY DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION)/SLIP AND FALL (DEFENDANTS FAILED TO AFFIRMATIVELY DEMONSTRATE LACK OF NOTICE OF DANGEROUS CONDITION)

QUESTION OF FACT WHETHER SKIER ASSUMED THE RISK OF STRIKING A SNOWMAKING MACHINE.

The Fourth Department determined plaintiff had raised a question of fact whether he assumed the risk of a skiing injury. Plaintiff fell and slid headfirst into an unpadded portion of a pole on a snowmaking machine. The court rejected defendant’ argument that the General Obligations Law, not the common law controlled:

 

Although there was padding on the upper portion of the pole, plaintiff collided with the lower, unpadded portion of the pole. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing. We agree with plaintiff that Supreme Court properly denied the motion. We note at the outset that General Obligations Law § 18-107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” and, contrary to defendant’s contention, the precise circumstances of plaintiff’s accident are not covered by article 18 of the General Obligations Law. Thus, the common law applies where, as here, plaintiff is alleging the negligent placement and inadequate padding of defendant’s snowmaking machines, a condition not “specifically addressed by the statute” … .

It is well settled under the common law that “[v]oluntary participants in the sport of downhill skiing assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and man-made objects that are incidental to the provision or maintenance of a ski facility” … . Here, although defendant met its initial burden by establishing that the accident was caused by the inherent risks in the sport of downhill skiing, plaintiff raised a triable issue of fact by submitting the affidavit of his expert … . Plaintiff’s expert asserted therein that the snowmaking machine was on the ski trail and was insufficiently padded, thus raising an issue of fact whether defendant “failed to maintain its property in a reasonably safe condition” … . Dailey v Labrador Dev. Corp., 2016 NY Slip Op 01072, 4th Dept 2-11-16

 

INSURANCE LAW (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTED AN INSURANCE MALPRACTICE ACTION)/MALPRACTICE, INSURANCE (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTING AN INSURANCE MALPRACTICE ACTION EXISTED)

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FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED WAS NOT IN FRONT OF DEFENDANT’S PROPERTY. STANDING ALONE, DOES NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, found that a property owner, West River, which had a statutory duty to maintain an abutting sidewalk, was not entitled to summary judgment based solely on the fact that the defect in the sidewalk over which plaintiff tripped was not in front West River’s property. The expansion joint over which plaintiff tripped was in front of a neighboring property (the Mercado property). However, a nearby portion of the sidewalk which had subsided was in front of West River’s property. Therefore, to be entitled to summary judgment, West River was required to demonstrate it did not breach its duty to maintain the sidewalk, or that any such breach was not the proximate cause of plaintiff’s fall.  Simply demonstrating the expansion joint over which plaintiff tripped was not in front of West River’s property was not enough:

 

Plaintiff tripped on an expansion joint that abutted the Mercados’ property. That does not end the inquiry, nor does the fact that the defect upon which plaintiff tripped was in front of the Mercado property necessarily absolve West River of liability. Although West River did not have a duty to remedy any defects in front of the Mercado property, section 7-210 (a) [of the Administrative Code of the City of New York] imposed a duty on West River to maintain the sidewalk abutting its premises in a reasonably safe condition. Moreover, the plain language of section 7-210 (b) provides that West River may be held liable for injuries where its failure to maintain its sidewalk is a proximate cause of that injury. Here, most of the sunken sidewalk flag that plaintiff traversed abutted West River’s property, and plaintiff claims that West River’s sidewalk flag had sunk lower than the expansion joint upon which plaintiff allegedly tripped. Thus, West River failed to meet its burden of demonstrating entitlement to judgment as a matter of law, leaving factual questions as to whether West River breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach was a proximate cause of plaintiff’s injuries. Under the circumstances of this case, summary judgment should have been denied. Sangaray v West Riv. Assoc., LLC, 2016 NY Slip Op 01002, CtApp 2-11-16

 

NEGLIGENCE (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SLIP AND FALL (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SIDEWALKS (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)

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QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY.

The Second Department, reversing Supreme Court, determined decedent’s representative had raised a question of fact whether the driver of a city dump truck was negligent. Decedent was a passenger in a car which struck the back of the dump struck which was either stopped or coming to a stop in the left lane of the highway. Although the driver of the truck testified a tire had just blown, causing the truck to veer to the left, the truck was still moving when struck, and the emergency flashing lights were on, the sole eyewitness testified the truck was parked and its lights were not on:

 

The City made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that its truck was lawfully stopped on the highway due to an emergency (see Vehicle and Traffic Law § 1202[a][1][j]) when it was struck in the rear by the Cadena vehicle. However, in opposition, viewing the evidence in the light most favorable to the plaintiff, affording him the benefit of every favorable inference …, and applying the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76, 80) to hold him to a lesser standard of proof, the plaintiff raised a triable issue of fact as to whether the truck driver exercised reasonable care in warning other drivers of the hazard posed by his disabled vehicle. Generally, when one causes a public road to become obstructed, there is a duty to “exercise[ ] the care that a reasonably prudent person should have under all the circumstances” … . The exercise of reasonable care under the circumstances may include warning other motorists of the hazards posed by the obstruction … . Typically, whether reasonable care was exercised is a question of fact … .

The City’s truck driver testified at a deposition that the truck’s headlights were on, that after the blowout of the tire he activated the truck’s emergency lights, and that the accident occurred within seconds of veering into the left lane while he was still moving 10 to 15 miles per hour. However, the sole eyewitness to the accident, Weiguo Qu, indicated that he saw the truck “parked” in the left lane of a highway with its lights off and no flashing lights. In light of this conflicting evidence, triable issues of fact exist regarding, among other things, whether the City’s truck driver failed to exercise reasonable care to warn other motorists of the obstruction and, if so, whether such failure was a proximate cause of the accident… . Pinilla v City of New York, 2016 NY Slip Op 00953, 2nd Dept 2-10-16

EMINENT DOMAIN (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/LANDLORD-TENANT (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/TRADE FIXTURES (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)

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