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DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HER FALL AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined defendant’s motion for summary judgment in a slip and fall case should not have been granted. Plaintiff’s testimony she “felt” liquid on the floor was sufficient evidence plaintiff was aware of the cause of her fall. And defendant failed to demonstrate a lack of constructive notice of the dangerous condition:

Although the defendant presented evidence that it neither created, nor had actual notice of, the alleged condition, it failed to demonstrate that it did not have constructive notice of the alleged condition, as the defendant failed to tender any evidence establishing when the subject area was last inspected and cleaned prior to the accident … . Korn v Parkside Harbors Apts., 2015 NY Slip Op 09071, 2nd Dept 12-9-15

NEGLIGENCE (CAUSE OF FALL, PLAINTIFF’S KNOWLEGE OF)/NEGLIGENCE (CONSTRUCTIVE NOTICE OF DANGEROUS CONDITION, FAILURE TO DEMONSTRATE LACK OF)/SLIP AND FALL (CAUSE OF FALL, PLAINTIFF’S KNOWLEDGE OF; CONSTRUCTIVE NOTICE, LACK OF KNOWLEDGE OF DANGEROUS CONDITION, FAILURE TO DEMONSTRATE)

CHAIN ACROSS DRIVEWAY WAS NOT “OPEN AND OBVIOUS” AS A MATTER OF LAW; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined a chain hanging across a driveway from two yellow posts was not “open and obvious” as a matter of law. Plaintiff allegedly tripped over the chain on a dark and rainy night. Defendant’s motion for summary judgment, therefore, should not have been granted:

While a possessor of real property has a duty to maintain that property in a reasonably safe condition … , there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous … . The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for a jury … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .

Here, contrary to the Supreme Court’s determination, the defendant failed to establish, prima facie, that the chain was open and obvious, i.e., readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident … . Lazic v Trump Vil. Section 3, Inc., 2015 NY Slip Op 09075, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (CHAIN ACROSS DRIVEWAY NOT OPEN AND OBVIOUS AS MATTER OF LAW)/OPEN AND OBVIOUS CONDITION (CHAIN ACROSS DRIVEWAY NOT OPEN AND OBVIOUS AS A MATTER OF LAW)

FACT THAT PLAINTIFF, A PASSENGER IN THE LEAD VEHICLE, WAS NOT AT FAULT IN THE REAR-END COLLISION DOES NOT LEAD TO THE AUTOMATIC CONCLUSION THE DRIVER OF THE REAR VEHICLE WAS AT FAULT; HERE THE DRIVER OF THE REAR VEHICLE RAISED A QUESTION OF FACT WHETHER THE ACCIDENT WAS CAUSED BY OIL ON THE ROADWAY; SUMMARY JUDGMENT FINDING THE REAR DRIVER AT FAULT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the driver of a vehicle which struck the rear of a stopped vehicle (in which plaintiff was a passenger) raised a question of fact about whether the accident was unavoidable because of oil on the roadway. The Second Department took the time to explain, in detail, what the proof burdens are in the context of a rear-end collision. Here, the fact that the plaintiff-passenger was not at fault should not have given rise to the automatic conclusion the driver of the rear vehicle was at fault. In addition to the allegation oil on the road made it impossible to stop, there was a question whether the driver of the lead vehicle was comparatively at fault for stopping in the roadway to let off passengers:

We take this opportunity to caution that trial courts must be careful to avoid concluding, in rear-end accident cases, that just because a plaintiff is a passenger in the lead vehicle, the liability of the rear vehicle is automatically established. It is not. A plaintiff moving for summary judgment on the issue of liability must meet the twofold burden of establishing that he or she was free from comparative fault and was, instead, an innocent passenger, and, separately, that the operator of the rear vehicle was at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, as here, summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger … .

We further note that [the driver of the rear vehicle] aised the issue of the [lead vehicle driver’s] comparative fault by asserting that the van was partially stopped in the moving lane of traffic. A plaintiff’s right as an innocent passenger to summary judgment on the issue of liability is not barred or restricted by any potential issue of comparative fault as between the owners and operators of the two vehicles involved in the accident … . Thus, had the only triable issue of fact raised [by the rear driver] been the [lead driver’s] comparative fault, the plaintiff would have been entitled to summary judgment on the issue of liability against [the rear driver]. However, since [the rear driver] raised a triable issue of fact as to whether [he was] completely free from fault, “[t]his matter involves more than simply a trier of fact’s apportionment of fault between both defendants” … . Accordingly, the plaintiff is not entitled to summary judgment on the issue of liability against [the rear driver]. Phillip v D&D Carting Co., Inc., 2015 NY Slip Op 09084, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (REAR-END COLLISIONS, BURDENS OF PROOF WHERE PLAINTIFF IS PASSENGER IN LEAD VEHICLE)/REAR-END COLLISIONS (BURDENS OF PROOF WHERE PLAINTIFF IS PASSENGER IN LEAD VEHICLE)

LACROSSE PLAYER JOGGING AROUND LACROSSE FIELD ASSUMED THE RISK OF BEING STRUCK BY A LACROSSE BALL.

The Second Department, noting that even bystanders assume the risk of being struck by a ball, determined a lacrosse player who was jogging around the lacrosse field while other players were throwing balls assumed the risk of being struck by a ball:

Pursuant to the doctrine of primary assumption of risk, a participant in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation … . This doctrine also applies to spectators or bystanders who place themselves in close proximity to a playing field … .

Here, the defendants established, prima facie, that by entering the fenced-off field where players were warming up for lacrosse practice, and jogging around the perimeter of the field where lacrosse balls were being thrown between the players and into the net, the injured plaintiff assumed the risk of being struck by a lacrosse ball … . Spiteri v Bisson, 2015 NY Slip Op 09089, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (ASSUMPTION OF RISK, PLAYER WARMING UP STRUCK BY LACROSSE BALL)/ASSUMPTION OF RISK (LACROSSE PLAYER STRUCK BY LACROSSE BALL WHILE WARMING UP)

QUESTION OF FACT WHETHER WHEEL STOP IN PARKING LOT WAS AN OPEN AND OBVIOUS CONDITION.

The Second Department determined a question of fact had been raised whether a wheel stop in a parking area was an open and obvious condition. A photograph demonstrated the wheel stop was partially obstructing a walkway:

Here, the defendants submitted the expert affidavit of a forensic engineer who determined that “the parking lot was a safe walking surface and adequately illuminated at night,” and that the wheel stop on which the injured plaintiff tripped “was an open and obvious condition” located “within a designated parking space” and not a pedestrian walkway. However, the photographs upon which the defendants’ expert partially relies depict the wheel stop as extending directly in front of, and thus partially obstructing, a designated pedestrian walkway. Thus, the defendants failed to satisfy their initial burden of showing that they neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Rivera v Queens Ballpark Co., LLC, 2015 NY Slip Op 09087, 2nd Dept 12-9-15

MONTHLY COMPILATION INEX ENTRIES FOR THIS CASE:

NEGLIGENCE (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)/SLIP AND FALL (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)/OPEN AND OBVIOUS CONDITION (WHEEL STOP NOT OPEN AND OBVIOUS AS A MATTER OF LAW)/WHEEL STOP (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)

RARE CASE WHERE DEFENDANT SUBMITTED SUFFICIENT EVIDENCE TO DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT CREATE OR EXACERBATE A DANGEROUS CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined defendant (Sailsman) was entitled to summary judgment in a slip and fall case. Defendant demonstrated that his snow removal efforts did not create or exacerbate a dangerous condition. [This case is noteworthy because the vast majority of defendants’  motions for summary judgment in similar cases are denied for failure to present the necessary evidence.]:

Sailsman made a prima facie showing that his property is a two-family home in which he resides, not subject to liability pursuant to Administrative Code of City of NY § 7-210 (b), and that his voluntary snow removal efforts did not create or exacerbate the alleged hazardous condition on the sidewalk … . Sailsman testified that the day before the accident, he removed the snow and ice from the sidewalk and applied enough salt to completely melt the ice, and provided a neighbor’s affidavit confirming that the sidewalk was clear and safe to walk on, as well as photographs taken shortly after the accident. Montiel v Sailsman, 2015 NY Slip Op 08968, 1st Dept 12-8-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (PROPERTY OWNER DEMONSTRATED SNOW REMOVAL EFFORTS DID NOT CREATE DANGEROUS CONDITION)/SNOW REMOVAL EFFORTS (DEFENDANT DEMONSTRATED IT DID NOT CREATE DANGEROUS CONDITION)/SLIP AND FALL (SNOW REMOVAL DID NOT CREATE DANGEROUS CONDITION)

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STATEMENTS ATTRIBUTED TO PLAINTIFF PROPERLY REDACTED FROM HOSPITAL RECORDS; EXPERT TESTIMONY DISCLOSED DAYS BEFORE TRIAL PROPERLY PRECLUDED.

In a case with a substantial plaintiff’s verdict, the First Department noted the statement that the driver “made an illegal left turn,” which was attributed to the plaintiff, was properly redacted from the hospital records.  It was not clear the plaintiff made the statement.  Even if she did, plaintiff was not the driver so it was not a statement against plaintiff’s interest. The statement was not made for the purpose of diagnosis and treatment. And the statement does not relate to a matter of fact (“illegal” is a conclusion of law). The First Department further noted that the trial court’s preclusion of testimony by defendants’ experts was not an abuse of discretion. The defendants served their disclosures only days before the trial:

The trial court providently exercised its discretion in precluding testimony from defendants’ biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court’s exercise of discretion in precluding this testimony … , whether applying a “good cause” standard … or a “willful or prejudicial” standard … . We also see no reason to disturb the trial court’s exercise of discretion in precluding testimony regarding a seatbelt defense … . Coleman v New York City Tr. Auth., 2015 NY Slip Op 08906, 1st Dept 12-3-15

NEGLIGENCE (ADMISSIBILITY OF STATEMENTS IN HOSPITAL RECORDS)/EVIDENCE (ADMISSIBILITY OF STATEMENTS IN HOSPITAL RECORDS)/HOSPITAL RECORDS (ADMISSIBILITY OF STATEMENTS INCLUDED IN)/EXPERT TESTIMONY (LATE NOTICE, PROPERLY PRECLUDED)/EVIDENCE (PRECLUSION OF EXPERT TESTIMONY PROPER, LATE DISCLOSURE)

BECAUSE PROPERTY-OWNER-DEFENDANTS UNDERTOOK SNOW REMOVAL EFFORTS, THEIR FAILURE TO AFFIRMATIVELY DEMONSTRATE THOSE EFFORTS DID NOT CREATE THE HAZARDOUS CONDITION REQUIRED DENIAL OF THEIR MOTION FOR SUMMARY JUDGMENT.

The Second Department noted that, although a property owner is under no duty to remove snow and ice during a storm, if snow removal efforts are made, in moving for summary judgment, the property owner (here Chestnut Oaks) must affirmatively demonstrate the snow removal efforts did not create a hazardous condition. Chestnut Oaks’ failure to so demonstrate required denial of the motion:

As the proponents of a motion for summary judgment, the Chestnut Oaks defendants had the burden of establishing, prima facie, that they neither created the ice condition nor had actual or constructive notice of the condition … . “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” … . A person responsible for maintaining property is not under a duty to remove ice and snow until a reasonable time after the cessation of the storm … . However, if a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm … . In such an instance, a property owner moving for summary judgment in a slip and fall case must demonstrate in support of its motion that the snow removal efforts it undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall … . DeMonte v Chestnut Oaks at Chappaqua, 2015 NY Slip Op 08800, 2nd Dept 12-3-15

NEGLIGENCE (CREATION OF HAZARDOUS CONDITION, SNOW REMOVAL)/SLIP AND FALL (CREATION OF HAZARDOUS CONDITION, SNOW REMOVAL)/HAZARDOUS CONDITION, CREATION OF (SNOW REMOVAL)/SNOW REMOVAL (CREATION OF HAZARDOUS CONDITION)

A QUESTION OF FACT EXISTS WHETHER DEFENDANT DRUG TREATMENT FACILITY OWED A DUTY OF CARE TO PLAINTIFF WHO WAS STABBED BY A PATIENT OF THE FACILITY SHORTLY AFTER DISCHARGE.

The First Department, in a full-fledged opinion by Justice Sweeny, over a full-fledged dissenting opinion by Justice Saxe, determined defendant drug treatment facility (Queens Village) did not demonstrate that it owed no duty  of care to plaintiff who was stabbed by a patient who had just been discharged by the facility. Queens Village is an alternative to incarceration. The patient was there because he had robbed a cab driver at gunpoint. The patient was discharged because he had pushed another patient to the ground and admitted drinking alcohol. The director of Queens Village indicated that the plan was to transfer the patient to an interim facility until he could be returned to the TASC program [Treatment Alternatives for Safer Communities]. However, the patient apparently became enraged when told he was being discharged and was “escorted” from Queens Village by the police. There was no evidence the police took the patient into custody, or that the police were told by Queens Village to take the patient to the interim facility. The majority concluded that the evidence demonstrated Queens Village exercised sufficient control over the patient (he was to be transferred to an interim facility, not released) to give rise to a duty of care owed to plaintiff. Because Queens Village moved for summary judgment, the court deemed that Queens Village did not demonstrate, as a matter of law, that it did not owe plaintiff a duty of care:

Generally, the common law does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; rather, liability for the negligent acts of third persons “arises when the defendant has authority to control the actions of such third persons” … . * * *

The key factor in determining whether a defendant will be liable for the negligent acts of third persons is whether the defendant has sufficient authority to control the actions of such third persons … . Such authority, at a minimum, requires “an existing relationship between the defendant and the third person over whom charge’ is asserted” … .There is no question that Queens Village had “an existing relationship” and sufficient authority to control [the patient’s] actions. Oddo v Queens Vil. Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 2015 NY Slip Op 08943, 1st Dept 12-3-15

NEGLIGENCE (DUTY OF CARE RE: THIRD PARTY)/DUTY OF CARE (OWED TO THIRD PARTY)/THIRD PARTY (DUTY OF CARE OWED TO)

DEFENDANT’S FAILURE TO DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED AND CLEANED REQUIRED DENIAL OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.

Reversing Supreme Court, the Second Department determined defendant transit authority did not demonstrate a lack of constructive notice of a slip and fall hazard because it did not present evidence of when the area was last cleaned and inspected or what the area looked like prior to the slip and fall:

A defendant property owner who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence … . ” To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell'” … .

Here, viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the defendant failed to establish its prima facie entitlement to judgment as a matter of law … . The defendant failed to set forth when the subject platform was last inspected or what it looked like prior to the accident, and it failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition … . Roman v New York City Tr. Auth., 2015 NY Slip Op 08820,  2nd Dept 12-2-15

NEGLIGENCE (LACK OF NOTICE OF SLIP AND FALL HAZARD, FAILURE TO DEMONSTRATE)//SLIP AND FALL (FAILURE TO DEMONSTRATE LACK OF NOTICE)/NOTICE OF SLIP AND FALL HAZARD (FAILURE TO DEMONSTRATE LACK OF)

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