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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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FIREFIGHTER RULE DID NOT PRECLUDE ACTION BY POLICE OFFICER STEMMING FROM A FALL AT THE OFFICE; GENERAL MUNICIPAL LAW 205-e ACTION PROPERLY BASED ON ALLEGED VIOLATION OF LABOR LAW 27-a.

The Second Department determined a police officer’s common law negligence and General Municipal Law 205-e actions should not have been dismissed.  The officer tripped over an electric cord at the office.  The firefighter rule did not bar the suit because the injury was not the result of the heightened risk associated with police work. The General Municipal Law 205-e cause of action was correctly based upon an alleged violation of Labor Law 27-a:

Here, the defendants failed to establish, prima facie, that the firefighter rule barred the plaintiffs’ cause of action alleging common-law negligence. The injured plaintiff’s injury did not occur during an act in furtherance of a police function which exposed her to a heightened risk of sustaining that injury. The performance of her duties merely furnished the occasion for the injury. Furthermore, the defendants failed to establish, prima facie, that they did not have constructive notice of the condition complained of … . Therefore, the Supreme Court erred in directing dismissal of the plaintiffs’ common-law negligence cause of action.

The Supreme Court also erred in dismissing the plaintiffs’ cause of action pursuant to General Municipal Law § 205-e. General Municipal Law § 205-e permits a police officer to assert a tort claim against a fellow officer or an employer. To establish a cause of action under General Municipal Law § 205-e, a police officer plaintiff must (1) identify the statute or ordinance with which the defendant failed to comply, (2) describe the manner in which the police officer was injured, and (3) set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm … . As a prerequisite to recovery pursuant to a General Municipal Law § 205-e cause of action, “a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Here, the plaintiffs predicate their General Municipal Law § 205-e cause of action on Labor Law § 27-a(3)(a)(1). The Supreme Court correctly determined that Labor Law § 27-a(3)(a)(1) may appropriately serve as a statutory predicate for a section 205-e cause of action, and does so here … . Kelly v City of New York, 2015 NY Slip Op 08808, 2nd Dept 12-2-15

NEGLIGENCE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/MUNICIPAL LAW ([POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK, FIREFIGHTER RULE)/FIREFIGHTER RULE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/GENERAL MUNICIPAL LAW 205-e (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/LABOR LAW 27-a(3)(a)(1) (VIOLATION AS PREDICATE FOR GENERAL MUNICIPAL LAW 205-e ACTION)

ALLEGATION THAT PLAINTIFF’S LEAD VEHICLE STOPPED FOR NO APPARENT REASON RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF’S NEGLIGENCE CAUSED OR CONTRIBUTED TO THE REAR-END COLLISION.

The Second Department determined that defendant’s (Balenescu’s) allegation that plaintiff (Galuten, who was in the lead vehicle) suddenly stopped for no apparent reason raised a question of fact about whether plaintiff’s negligence caused or contributed to the accident:

Mere evidence of a sudden stop, without more, is not enough to raise a triable issue of fact as to whether the operator of the stopped vehicle was partly at fault, so as to defeat summary judgment … . However, while vehicle stops under prevailing traffic conditions are forseeable and must be anticipated by the following driver, where the sudden stop is unexplained by the existing circumstances and conditions, an issue of fact as to liability is raised … .

Here, Balenescu averred, inter alia, that when he was “25 yards from the Galuten vehicle, still traveling at 15 miles per hour, the light turned green, and the Galuten vehicle . . . accelerated safely through the intersection into the next block.” Then about 10 yards past the intersection of West 23rd Street and 12th Avenue, the Galuten vehicle suddenly stopped short “for no apparent reason,” as there was no traffic “for fifty yards in front of the Galuten vehicle,” and the Galuten vehicle showed no signs, nor made any signals, to signify that it was stopping. This evidence was sufficient to raise a triable issue of fact as to whether Galuten’s alleged negligence caused or contributed to the accident … . Etingof v Metropolitan Laundry Mach. Sales, Inc., 2015 NY Slip Op 08803, 2nd Dept 12-2-15

NEGLIGENCE (REAR-END COLLISION, UNEXPLAINED STOP)/REAR-END COLLISION (UNEXPLAINED STOP)

Tracked In Water, Failure to Demonstrate When Area Last Inspected Precluded Summary Judgment

The Second Department, reversing Supreme Court, determined defendant’s failure to demonstrate when the area where the slip and fall occurred was last inspected precluded summary judgment in defendant’s favor. Evidence of general cleaning procedures is not enough to demonstrate a lack of constructive notice of an alleged dangerous condition (tracked in water here):

While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … .

To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … .

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. Neither the affidavit of the defendant’s operations manager, nor the deposition testimony of the defendant’s asset protection manager established when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff’s fall.  Milorava v Lord & Taylor Holdings, LLC, 2015 NY Slip Op 08390, 2nd Dept 11-18-15

 

Question of Fact Whether Hospital Had a Duty to Safeguard Plaintiff from Actions by Third Parties

The Second Department determined there was a question of fact about whether defendant hospital (“Winthrop defendants”) had a duty to safeguard plaintiff-patient from harm caused by the emergency medical technicians (EMT’s) who transported plaintiff to the hospital. Plaintiff was brought to the hospital by ambulance for dialysis. The EMT’s placed plaintiff on a scale and left. Plaintiff fell when he was on the scale:

A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety” … . “This sliding scale of duty is limited, however; it does not render a hospital an insurer of patient safety or require it to keep each patient under constant surveillance. As with any liability in tort, the scope of a hospital’s duty is circumscribed by those risks which are reasonably foreseeable” … .

Here, the Winthrop defendants failed to establish, prima facie, that they did not breach a duty owed to the decedent. The decedent was transported to the Winthrop defendants’ facility for dialysis treatment, and a witness for the Winthrop defendants testified at his deposition that the weighing of the decedent, on the Winthrop defendants’ premises, was a critical component of that treatment. It was reasonably foreseeable that a patient suffering from end-stage renal disease, who was transported to the Winthrop defendants’ facility by ambulance and in a stretcher, could fall while being weighed-in at the dialysis unit, if not properly supervised. Thus, the decedent’s injury was reasonably foreseeable to the Winthrop defendants.

In support of their motion, the Winthrop defendants submitted deposition testimony indicating that it was customary practice for EMTs of transportation companies to be responsible for weighing patients brought to the dialysis unit on a stretcher prior to transferring care of the patient to the Winthrop defendants’ dialysis nurses. However, they did not present any evidence that there was any written policy or agreement to that effect. Under these circumstances, the deposition testimony submitted by the Winthrop defendants failed to establish, prima facie, that they did not owe a duty to the decedent. Patel v American Med. Response, Inc., 2015 NY Slip Op 08395, 2nd Dept 11-18-15

 

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County Did Not Demonstrate Its Entitlement to Qualified Immunity Re: Obstructed Intersection

The Second Department determined the county did not demonstrate (as a matter of law) it was entitled to qualified immunity for  the placement of a sensor station and the failure to trim the nearby hedges. The complaint alleged the sensor station and hedges obstructed plaintiff’s view of oncoming traffic, resulting in an accident. The county’s motion for summary judgment was properly denied. The court explained the analytical criteria:

A governmental body owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, a governmental body is accorded a qualified immunity from liability arising out of a highway safety planning decision … . Such immunity is predicated upon an ability to demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process … .

Contrary to the County’s contention, it did not sustain its prima facie burden on the issue of qualified immunity. The County failed to demonstrate, inter alia, that its placement of the sensor station cabinet and its decision to refrain from trimming the hedge were highway safety planning decisions resulting from a deliberative decision-making process of the type afforded immunity from judicial interference … . Iacone v Passanisi, 2015 NY Slip Op 08386, 2nd Dept 11-18-15

 

Height Differential Open and Obvious

The Second Department, reversing Supreme Court, determined the condition which caused plaintiff to fall was open and obvious (nonactionable). Plaintiff tripped where there was a height differential between a bed of decorative stones and the abutting walkway:

Here, the evidence submitted by the defendant in support of its motion, including photographs of the accident site, demonstrated, prima facie, that it was entitled to judgment as a matter of law. Contrary to the plaintiff’s contention, the height differential between the cement walkway and the abutting bed of stones was open and obvious and not inherently dangerous … . Mucciariello v A & D Hylan Blvd. Assoc., LLC, 2015 NY Slip Op 08391, 2nd Dept 11-18-15

 

Single Step Was Open and Obvious

The Second Department, reversing Supreme Court, determined defendant was entitled to summary judgment in a slip and fall case because the alleged defective condition, a single step riser, was open and obvious and complied with building code requirements:

The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the subject step complied with the relevant Building Code requirements and that it was open and obvious and not inherently dangerous … . The burden then shifted to the plaintiff to defeat the defendants’ motion with “proof demonstrating the existence of an issue of fact as to whether other circumstances prevailed which could lead the trier of fact to conclude that a dangerous condition existed which was a substantial cause of the [accident] resulting in the plaintiff[‘s] . . . injury” … . Contrary to the Supreme Court’s determination, the plaintiff failed to raise a triable issue of fact. Fishelson v Kramer Props., LLC, 2015 NY Slip Op 08380, 2nd Dept 11-18-15

 

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Question of Fact Whether City Created Hazardous Condition

The Second Department, reversing Supreme Court, determined there was a question of fact whether the city created the allegedly hazardous condition (an expansion joint cover plate on a bridge which was struck by plaintiff’s bicycle):

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . In addition, “[a] municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality … .

Here, the City failed to establish, prima facie, that the subject metal expansion joint cover plate did not present a hazardous or defective condition … . Although the plaintiff does not dispute that the City did not have prior written notice of the alleged hazardous or defective condition, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition … . Oser v City of New York, 2015 NY Slip Op 08393, 2nd Dept 11-18-15

 

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