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SIDEWALK DEFECT TOO TRIVIAL TO BE ACTIONABLE.

The Third Department determined defendant's motion for summary judgment in a slip and fall case was properly granted.  Defendant's demonstrated the defect in the sidewalk was trivial and the plaintiff's expert did not identify any relevant code, standard, or accepted-practice violation:

A property owner “'may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection'” … . “Whether a defect is so trivial to preclude liability depends on the particular facts of each case and requires consideration of such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place and circumstances of the injury” … .

* * * Photographs of the portion of the sidewalk at issue demonstrate that it is relatively smooth and show only a slight height differential between the adjacent slabs of concrete, which were of different shades. Such evidence satisfied defendant's initial burden of making a prima facie showing that any alleged defect in the sidewalk was too trivial to be actionable … . Chirumbolo v 78 Exch. St., LLC, 2016 NY Slip Op 01537, 3rd Dept 3-3-16

NEGLIGENCE (SIDEWALK DEFECT TRIVIAL)/SLIP AND FALL (SIDEWALK DEFECT TRIVIAL)/TRIVIAL DEFECT (SIDEWALK DEFECT TOO TRIVIAL TO BE ACTIONABLE)

RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted. Plaintiff was injured when thrown from a horse during a recreational ride at defendant’s stable. Plaintiff was deemed to have assumed the risk of being thrown from the horse:

The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding … . There is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks … . To the extent plaintiffs’ expert opined otherwise, such opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact … . Blumenthal v Bronx Equestrian Ctr., Inc., 2016 NY Slip Op 01545, 1st Dept 3-3-16

 

NEGLIGENCE (RIDER ASSUMED THE RISK OF BEING THROWN FROM A HORSE)/ASSUMPTION OF RISK (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)/HORSES (RIDER ASSUMED RISK OF BEING THROWN FROM A HORSE)

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ACCIDENT DIAGRAM IN POLICE REPORT WAS NOT BASED ON OFFICER’S FIRST-HAND KNOWLEDGE; REPORT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; NEW TRIAL ORDERED.

The Second Department determined a new trial was necessary in a pedestrian-accident case because the police report (admitted in evidence included) included a diagram of the accident scene which was not based on the police officer's personal observation:

 

Information in a police accident report is “admissible as a business record so long as the report is made based upon the officer's personal observations and while carrying out police duties” … . Conversely, information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under some other hearsay exception … . Here, the diagram contained in the police accident report was not derived from the personal observations of the police officer, who did not witness the subject accident … . In addition, there was insufficient evidence as to the source of the information used to prepare the diagram, whether that person was under a business duty to supply it, or whether some other hearsay exception would render the diagram admissible. The diagram therefore should not have been admitted … . Wynn v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 01484, 2nd Dept 3-2-16

NEGLIGENCE (ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/EVIDENCE (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/HEEARSAY (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)

GENERAL AWARENESS OF A RECURRENT CONDITION DOES NOT AMOUNT TO CONSTRUCTIVE NOTICE OF THE PARTICULAR CONDITION WHICH CAUSED THE ACCIDENT.

The Second Department determined defendant was entitled to summary judgment in this slip and fall case. The plaintiff alleged she slipped on water which had dripped from the ceiling. The defendant demonstrated it did not create or have actual or constructive notice of the condition. The court noted that a general awareness of a recurrent condition does not amount to constructive notice of the particular condition which caused the accident:

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it neither created nor had actual or constructive notice of the water in the lobby … .

In opposition, the plaintiff failed to raise a triable issue of fact. A general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition that caused the accident … . Gurley v Rochdale Vil., Inc., 2016 NY Slip Op 01467, 2nd Dept 3-2-16

NEGLIGENCE (GENERAL AWARENESS OF A RECURRENT CONDITION DOES NOT AMOUNT TO CONSTRUCTIVE NOTICE)/NOTICE (NEGLIGENCE, GENERAL AWARENESS OF A RECURRENT CONDITION DOES NOT AMOUNT TO CONSTRUCTIVE NOTICE)

CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT; SUMMARY JUDGMENT PROPERLY GRANTED TO SUPERMARKET AND LANDOWNER.

The Second Department determined defendant supermarket (Stop & Shop) and plaza owner (Ridgeway) were entitled to summary judgment dismissing the complaint of a customer injured when a car crashed the glass doors in the bottle-return area. The incident was deemed an unforeseeable intervening act:

 

“A landowner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'” … . However, a landowner does not have a “duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against” … . “There will ordinarily be no duty imposed on a defendant to prevent a third party from causing harm to another unless the intervening act which caused the plaintiff's injuries was a normal or foreseeable consequence of the situation created by the defendant's negligence” … .

Here, Stop & Shop and Ridgeway established their prima facie entitlement to judgment as a matter of law by demonstrating, through an expert's affidavit, that they maintained the premises in a reasonably safe condition and did not have a duty to construct and install bollards or other protective measures to protect against the conduct of the defendant driver … . Furthermore, Stop & Shop and Ridgeway established, prima facie, that the conduct of the defendant driver, in inexplicably losing control of her vehicle, was an unforeseeable intervening cause of the accident … . Stop & Shop and Ridgeway demonstrated, prima facie, that the location of the parking lot relative to the bottle return room merely furnished the condition or occasion for the accident, rather than one of its causes … . Dawkins v Mastrangelo, 2016 NY Slip Op 01459, 2nd Dept 3-2-16

NEGLIGENCE (CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT)/FORESEEABILITY (CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT)/INTERVENING ACT (CAR CRASHING THROUGH SUPERMARKET DOORS WAS AN UNFORESEEABLE INTERVENING ACT)

NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER.

The First Department determined the defendants demonstrated they did not have constructive notice of a dangerous condition allegedly caused by tracked in rain, noting there was no obligation to continuously mop up tracked in water:

 

“The fact that it was raining and water was being tracked in does not constitute notice of a dangerous situation”; … defendants “were under no obligation . . . to continuously mop up all tracked-in water” … . Moreover, plaintiff's own testimony established that the water on which she slipped was not visible and apparent and therefore could not provide constructive notice … . Plaintiff testified that, despite looking at the floor where she was walking, it was not until after she fell that she was able to discern the wet spots on the floor, which she described as clear droplets in a small area less than two feet in diameter that were “hard to have seen . . . when I was standing up.” Plaintiff failed to raise a triable issue of fact whether the accumulating rain water was a recurrent condition … . Gunzburg v Quality Bldg. Servs. Corp., 2016 NY Slip Op 01438, 1st Dept 3-1-16

 

NEGLIGENCE (NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER)/SLIP AND FALL (NO OBLIGATION TO CONTINUOUSLY MOP UP TRACKED IN WATER)

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NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF WHO WAS STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY.

The Third Department determined the complaint against defendant non-secure detention facility for juveniles was properly dismissed. Weeks after the juvenile had left and been discharged from the detention facility, the juvenile was in a high-speed police car-chase and crashed into plaintiff’s car.  The Third Department concluded that the detention facility did not owe a duty of care to the plaintiff, did not have a duty to supervise the juvenile because the juvenile was not in defendant’s custody, and, from the standpoint of the detention facility, the juvenile’s actions were not foreseeable:

 

Defendant’s nonsecure residential treatment center is located on an open campus without gates or bars, and residents are not locked in. Here, the resident was attending an educational program when he chose to leave. One of defendant’s staff members followed him and tried unsuccessfully to persuade him to return. The staff member did not attempt to physically prevent the resident from leaving, pursuant to defendant’s policy that — under the statutory mandate against physical restrictions — permits such intervention only when a resident’s behavior is dangerous to the resident or others. After the resident departed, defendant notified DSS and the police and discharged him when directed to do so by DSS a week later. Plaintiff’s argument that defendant should have imposed greater supervision or restraints to prevent the resident from leaving disregards the distinction between secure and nonsecure detention facilities and, more fundamentally, disregards the fact that defendant did not make the placement decision. …

The duty owed by a school to prevent foreseeable injuries caused by negligent supervision of its students arises “from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … . Because this duty arises from the school’s physical custody of its students, it ceases when a student leaves the premises and the student’s parent or legal custodian is free to resume control … . Here, assuming without deciding that defendant’s residential treatment center can be analogized to a school for this purpose, the collision that injured plaintiff occurred almost a month after the resident left defendant’s physical premises, and three weeks after defendant discharged him from its care, upon the direction of the resident’s legal custodian. Any duty that may have existed while the resident was in its physical custody had long since terminated … . Mayorga v Berkshire Farm Ctr. & Servs. for Youth, 2016 NY Slip Op 01375, 3rd Dept 2-25-16

NEGLIGENCE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/DUTY OF CARE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/NEGLIGENT SUPERVISION (DUTY TO SUPERVISE A RESIDENT OF A NON-SECURE JUVENILE DETENTION FACILITY CEASES WHEN CUSTODY CEASES)

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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)

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