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QUESTION OF FACT WHETHER CITY LIABLE FOR FAILURE TO INSTALL A STOP SIGN AT AN ACCIDENT-PRONE INTERSECTION.

The Second Department determined there was a question of fact whether the municipality should have installed an all-way stop at an intersection where plaintiff was injured. A study of the intersection by the municipality, prompted by the number of accidents, was deemed inadequate:

A municipality owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, it is accorded a qualified immunity from liability arising out of a highway safety planning decision … . A municipality may be held liable only “when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” … . * * *

“Once [a municipality] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . “Moreover, after the [municipality] implements a traffic plan it is under a continuing duty to review its plan in the light of its actual operation'” … . Under these circumstances, the City’s submissions revealed triable issues of fact regarding the adequacy of the … 2008 re-evaluation of its prior study which it undertook to complete, and the reasonableness of the City’s failure to install a stop sign … at the intersection under all of the attendant circumstances … . Langer v Xenias, 2015 NY Slip Op 09258. 2nd Dept 12-16-15

NEGLIGENCE (MUNICIPAL LIABILITY, FAILURE INSTALL STOP SIGN)/MUNICIPAL LAW (LIABILITY FOR FAILURE TO INSTALL STOP SIGN)/TRAFFIC PLAN (MUNICIPAL LIABILITY FOR FAILURE TO INSTALL STOP SIGN)

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NO SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFF; CITY WAS THEREFORE IMMUNE FROM SUIT.

The Second Department determined no special relationship existed between plaintiff, a city sanitation worker, and the city (NYC). Therefore, the city was protected from plaintiff’s suit by the doctrine of governmental immunity. Plaintiff was attacked by a participant in a community service program with whom plaintiff was working. The gravaman of plaintiff’s complaint was the city’s failure to provide security. The provision of security is a governmental, not proprietary, function. Therefore, absent a special relationship between the plaintiff and the city, the city was immune from suit. Giordanella v City of New York, 2015 NY Slip Op 09251, 2nd Dept 12-16-15

NEGLIGENCE (GOVERNMENT IMMUNITY, GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/GOVERNMENTAL IMMUNITY (GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/MUNICIPAL LAW (GOVERNMENTAL IMMUNITY, GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, GOVERNMENTAL FUNCTION)

DEFENDANT UNABLE TO DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HIS FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The First Department, over a dissent, determined defendant did not demonstrate, as a matter of law, that plaintiff did not know the cause of his slip and fall.  Therefore, defendant’s motion for summary judgment should not have been granted:

… [P]laintiff, who testified at his depositions through a Spanish interpreter, testified at his first deposition that upon exiting the convenience store he “stepped like on a hole,” and that he “stepped on something” on the defective ramp which caused his ankle to twist and him to fall to the ground. He further testified at that deposition that “[w]hen [he] stepped, it was that [he] felt like something — – that something was not right underneath,” “[l]ike [he] stepped on something not solid.” That plaintiff could not initially identify the location of his accident, based upon photographs he was shown at his first deposition that depicted only the bottom portion of a door with no other identifying features, is hardly surprising and not dispositive. Upon being shown, at his second deposition, additional photographs depicting the full entrance area and front of the convenience store, plaintiff was able to definitively identify and mark with an “X” the area on the ramp which was “not leveled” and caused him to fall … . Taveras v 1149 Webster Realty Corp., 2015 NY Slip Op 09192, 1st Dept 12-15-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW CAUSE OF HIS FALL)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HIS FALL)

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DEFENDANT DID NOT ESTABLISH IT WAS AN OUT-OF-POSSESSION LANDLORD; MANAGEMENT AGREEMENT INCLUDED THE RIGHT TO INSPECT THE PROPERTY AND AN AGREEMENT TO INDEMNIFY TENANT FOR CLAIMS ARISING FROM TENANT’S NEGLIGENCE.

The First Department determined defendant did not demonstrate it was an out-of-possession landlord and defendant was therefore properly held liable for plaintiff’s slip and fall. Plaintiff worked for nonparty tenant Sunrise Senior Living Management, Inc. (SSLM) with which defendant had a property management agreement. Although the agreement required SSLM to maintain the facility, defendant had access to the facility for inspection and agreed to indemnify SSLM for claims arising from SSLM’s negligence:

Defendant failed to establish that it was an out-of-possession landowner with limited liability to third persons injured on the property … . Its management agreement with SSLM gave SSLM “complete and full control and discretion in the operation … of the Facility” and required SSLM to “maintain the Facility … in conformity with applicable Legal Requirements.” However, defendant had “access to the Facility at any and all reasonable times for the purpose of inspection,” had access to SSLM’s books and records, and was required to fund operating shortfalls, and SSLM was required to report to defendant regularly and to maintain bank accounts in approved financial institutions “as agent for [defendant].”

Significantly, the management agreement requires defendant to indemnify SSLM for claims arising out of SSLM’s own negligence in the performance of its duties. This agreement to indemnify is analogous to the procurement of insurance, which constitutes evidence of ownership and control … . It evidences defendant’s intent to be responsible for any accidents on the property. But for the fortuity of plaintiff’s being an employee who was barred from suing his employer, defendant would be responsible, through the indemnification provision, for his injuries. Waring v Sunrise Yonkers SL, LLC, 2015 NY Slip Op 09174, 1st Dept 12-10-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (DEFENDANT NOT AN OUT-OF-POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)/LANDLORD-TENANT (DEFENDANT NOT AN OUT-OF-POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)/OUT-OF-POSSESSION LANDLORD (DEFENDANT NOT AN OUT-OF POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)

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)

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ASSUMPTION OF RISK DEFENSE DID NOT APPLY TO STUDENT-ATHLETE’S PARTICIPATION IN UNSUPERVISED “HORSEPLAY;” SCHOOL’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should not have been granted. Plaintiff student was injured when, during an unsupervised period of time prior to the beginning of football practice, a blocking sled was being misused to catapult players into the air. Plaintiff fractured both wrists. The Second Department held there was a question of fact re: the negligent supervision cause of action, and further held that the assumption of risk defense did not apply to the “horseplay” which resulted in plaintiff’s injury. With regard to assumption of the risk, the court wrote:

The doctrine of primary assumption of risk is most persuasively justified for its utility in facilitating ” free and vigorous participation in athletic activities'” … . By placing the risk of participation on the participants themselves, rather than on the sponsor, the doctrine encourages sponsorship, which leads to more opportunities to participate in sports or other recreational activities … . The doctrine of primary assumption of risk is not applicable to the conduct at issue in this case. …[T]he use of the blocking sled to catapult each other into the air is not the sort of “socially valuable voluntary activity” that the doctrine seeks to encourage … . Furthermore, the defendants did not establish that the commonly appreciated risks which are inherent in and arise out of the nature of football generally and flow from such participation on the football team included the risk of sustaining injury after being catapulted through the air by a blocking sled … . Duffy v Long Beach City Sch. Dist.. 2015 NY Slip Op 09065. 2nd Dept 12-9-15

MONTHLY COMPILATIION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (NEGLIGENT SUPERVISION OF STUDENTS)/NEGLIGENCE (ASSUMPTION OF RISK, SCHOOL SPORTS, HORSEPLAY)/NEGLIGENT SUPERVISION (STUDENTS)/ASSUMPTION OF RISK (SCHOOL SPORTS, HORSEPLAY)/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, HORSEPLAY)

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