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Plaintiff Did Not Know Cause of Fall

The Second Department determined summary judgment was properly granted to defendant in a slip and fall case. Plaintiff apparently tripped on a rug. After the fall plaintiff noticed a part of the rug which was bent upwards. However there was no evidence thr rug was in that condition before the fall, forcing resort to speculation about the cause of the fall:

“In a slip [or trip] and fall case, a defendant moving for summary judgment has the initial burden of establishing, prima facie, that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . However, “[a] plaintiff’s inability to identify what had caused him or her to fall is fatal to his or her case, and a defendant moving for summary judgment dismissing the complaint can meet its initial burden as the movant simply by demonstrating that the plaintiff did not know what had caused him or her to fall” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting the transcript of the plaintiff’s deposition, during which she testified that she did not notice the subject rug at any time prior to her fall, and that it was only after she fell that she observed a part of the rug to be in a folded condition … . The defendant also submitted the deposition testimony and an affidavit from the employee the plaintiff was following when she fell. The employee stated that she did not see any condition with respect to the subject rug which would cause anyone to trip. The defendant also submitted surveillance footage from the day of the plaintiff’s fall depicting the rug, which does not show that the rug was in a defective condition prior to the plaintiff falling. Without proof that there was a defective condition present with respect to the subject rug when the plaintiff fell, and the possibility that the folded condition of the rug the plaintiff observed after she fell was caused by her tripping, a jury would be required to impermissibly speculate as to the cause of her fall… . Giannotti v Hudson Val. Fed. Credit Union, 2015 NY Slip Op 08383, 2nd Dept 11-18-15

 

Question of Fact Whether ​”Intervening Criminal Act” at Homeless Facility Was Foreseeable

The First Department determined there was a question of fact whether an attack by one resident upon another resident of a facility for disabled homeless people was foreseeable:

Triable issues of fact exist as to whether defendants, the owner and operator of a transitional facility for disabled homeless people, breached their common-law duty to provide reasonable security measures to protect plaintiff’s decedent from foreseeable harm … . The fatal attack on decedent by a fellow resident was immediately preceded by two prior physical attacks, by the same resident, and police officers responding to the earlier attacks had told defendants’ staff members to keep the two residents apart.

In light of the conflicting testimony as to the perpetrator’s demeanor prior to the final attack and whether defendants were on notice of his alleged threat to continue the attack on decedent, it is for a jury to determine whether a further attack was foreseeable. The fact that defendants may not have been able to “anticipate the precise manner of the [attack] or the exact extent of injuries. . .does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable” … . Furthermore, while unforeseeable and intentional criminal acts by third parties are supervening acts which sever the causal connection with any alleged negligence … , here, “the alleged intervening criminal act is itself the foreseeable harm that shapes the duty [of care sought to be] imposed” … . Corporan v Barrier Free Living Inc., 2015 NY Slip Op 08351, 1st Dept 11-17-15

 

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Question of Fact Whether Real Estate Broker “Launched an Instrument of Harm” In an Apartment Being Shown to Plaintiff; Evidence of Custom Not Enough to Shift the Burden of Proof in Premises Liability Action

The First Department determined defendant real estate broker’s (Prudential/Leonhardt’s) motion for summary judgment in a personal injury case should not have been granted. As an apartment was being shown by the real estate broker, plaintiff tripped and fell when her foot became tangled in a drapery cord which was on the floor. The broker (Leonhardt) submitted evidence in support of the motion for summary judgment stating that she did not remember whether she opened the drapes on the day in question, and further stating that her habit was to hang the cord up when she did open the drapes. The court held the broker’s evidence was not sufficient to demonstrate, as a matter of law, that the broker did not “launch an instrument of harm,” i.e., cause the cord to be on the floor. Therefore, the contract between the broker and the owner of the apartment could have given rise to a duty of care owed by the broker to the plaintiff:

We thus turn to the … potential predicate for finding third-party tort liability, which rests on whether Prudential or Leonhardt launched an instrument of harm. Since they were the movants for summary judgment, Prudential and Leonhardt had the prima facie burden of demonstrating that there were no triable issues of fact and that they were entitled to judgment as a matter of law on the issue … . Leonhardt’s deposition testimony, and her affidavit in support of the motion, established that it was possible that she opened the drapes before the accident occurred, although she was not able to state with a reasonable degree of certainty that she did. If indeed she had opened the drapes, Leonhardt surmised, she would have wrapped the cord around the hook, because that is what she always did. However, evidence of a particular custom is insufficient to shift the burden in a premises liability case, because the defendant is required to proffer “specific evidence as to [her] activities on the day of the accident” … . Here, since Leonhardt had no specific recollection concerning the opening of the drapes on the day of the accident, she and Prudential were unable to eliminate the possibility that they were responsible for the hazardous placement of the cord on the floor. Accordingly, they failed to meet their prima facie burden, and the court should have denied their motion for summary judgment. Stimmel v Osherow, 2015 NY Slip Op 08340, 1st Dept 11-17-15

 

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Post-Accident Surveillance Videos Properly Excluded from Trial, Videos Did Not Demonstrate “Habit” or “Routine Procedure” Which Rose to the Level of Admissible Circumstantial Evidence of the Cause of Ice Formation

The Second Department determined surveillance videos of defendant’s employee dumping a bucket of water in a parking lot were properly excluded from the trial in this slip and fall case. The videos were made after plaintiff’s fall. Plaintiff argued that the surveillance demonstrated a “habit” or “routine practice” which led to the forming of the ice which caused plaintiff to fall. The court explained the relevant criteria:

A party in a negligence case is permitted to introduce evidence of a habit or routine practice “to allow the inference of its persistence, and hence negligence on a particular occasion” … . Nonetheless, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question … . Here, as the Supreme Court pointed out, the earliest proffered instance of the purported “habit” occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. We agree with the court’s determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured … . Accordingly, the court did not improvidently exercise its discretion in precluding the proffered evidence. Gucciardi v New Chopsticks House, Inc., 2015 NY Slip Op 08146, 2nd Dept 11-12-15

 

Sidewalk Dropoff Was a Trivial Defect

The Third Department determined the sidewalk defect which allegedly caused plaintiff to fall was trivial and, therefore, not actionable:

“An owner will not be liable . . . for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, which may cause a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection” … . * * *

There is no set point at which a height differential on a sidewalk will rise above the level of triviality and become a dangerous condition … . Instead, “[w]hether 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” … .

… Photographs confirm that the sidewalk dropped off in the area where claimant fell, which the former grounds manager at the university suggested may have been due to a layer of asphalt “hav[ing] peeled away in that section.” No complaints had been made about the dropoff, however, and neither the groundskeeper who cared for the area nor the grounds manager recalled noticing it before claimant was injured. There were also no actual measurements of the depth of the dropoff, and the grounds manager reviewed photographs of the condition and opined that the depth was “much less” than the two inches that claimant believed it to be. Our review of those photographs leads us to agree with the assessment of the grounds manager that the dropoff was a minimal one. Thus, the facts and circumstances established at trial support the determination of the Court of Claims that the dropoff was simply too trivial to be actionable … . Medina v State of New York, 2015 NY Slip Op 08019, 3rd Dept 11-5-15

 

Umpire Assumed the Risk of Being Struck by a Bat Thrown by Batter

The Third Department determined that an umpire assumed the risk of being struck by a bat thrown by a batter as he ran toward first base. Had the bat been thrown intentionally or recklessly the assumption of the risk doctrine would not apply. There was no admissible evidence the bat was thrown recklessly (in anger):

Under the primary assumption of risk doctrine, a participant, including an umpire, in a sport such as softball “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” … . Such risks include getting hit with a ball or a bat during a baseball game, particularly for an experienced participant … . That said, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others” … .

… [W]e find unpersuasive plaintiffs’ claim that getting hit with a bat is not an inherent risk in a slow pitch, 65-year-old and older softball game. Neither the age of the players nor the velocity of the pitch negates the readily apparent risk of a batter releasing the bat after a swing. The record shows that [plaintiff] has extensive experience as an umpire and no claim is made that defendant intentionally threw the bat at him. The issue distills to whether defendant recklessly threw the bat, creating a risk “‘over and above the usual dangers that are inherent in the sport'” … . Morrisey v Haskell, 2015 NY Slip Op 08021, 3rd Dept 11-5-15

 

Driver In Middle Car of Chain Reaction Accident Entitled to Summary Judgment

The Second Department, reversing Supreme Court, determined summary judgment should have been granted to the driver of the middle car in a chain reaction accident. The evidence demonstrated the driver had stopped behind the lead car and was propelled into the lead car when struck from behind:

In a multi-vehicle, chain reaction accident, when the operator of a vehicle that was propelled into another vehicle by a following vehicle presents evidence that he or she was able to safely bring his or her vehicle to a stop behind the lead vehicle before being struck in the rear by a following vehicle, that operator has established his or her prima facie entitlement to judgment as a matter of law … . Thus, “[i]n chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Niosi v Jones, 2015 NY Slip Op 07957, 2nd Dept 11-4-15

 

Plaintiff-Pedestrian’s Acts Constituted Sole Proximate Cause

The Second Department determined defendants were entitled to summary judgment dismissing the complaint because plaintiff’s acts constituted the sole proximate cause of his injuries.  Plaintiff stepped out between two cars in an attempt to cross the street:

Under the circumstances presented here, the … defendants established their entitlement to judgment as a matter of law by demonstrating that the conduct of the plaintiff in crossing the street at a location other than at an intersection, while emerging from between stopped cars, was the sole proximate cause of the accident, and that [defendant] was free from fault despite the plaintiff’s allegation that she failed to avoid a collision with the plaintiff … . Balliet v North Amityville Fire Dept., 2015 NY Slip Op 07943, 2nd Dept. 11-4-15

 

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Past Recollection Recorded and Hearsay Inadmissible at Trial Properly Considered in Opposition to Defendant’s Summary Judgment Motion

The Third Department determined a statement made by defendant’s employee [Mackey] near the time of plaintiff’s slip and fall was admissible as past recollection recorded and was properly considered in opposition to defendant’s summary judgment motion. In addition, hearsay which would not be admissible at trial was sufficiently corroborated to be considered in opposition to defendant’s motion for summary judgment. Defendant’s motion was properly denied:

… “[T]he requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . Here, Mackey testified that, beyond being upset that her cousin was hurt, she was unable to remember the particulars of the event, but she did recall filling out and signing a document recording her memories at the time. In this document, Mackey averred that she watched plaintiff fall by the Coinstar machine in an area that had been checked by the front-end maintenance crew approximately one hour prior to the incident. In the blank space next to the words “Condition at the time of last check prior to accident:” Mackey wrote, “ice machine is always leaking.” Mackey recalled completing this document within days of the incident and explained that the form did not help to refresh her recollection of the events. On this basis, we agree with Supreme Court’s ruling that Mackey’s written statement was admissible as a past recollection recorded and, as such, properly considered in the context of defendant’s motion for summary judgment …

Further, in keeping with the principles that, “[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented” … and such motion should be denied if there is any doubt as to the existence of such issues …, we likewise find no error in Supreme Court’s consideration of Mackey’s oral statement, notwithstanding its likely inadmissibility at trial. With that said, however, we acknowledge that, although “hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form” … . Zupan v Price Chopper Operating Co., Inc., 2015 NY Slip Op 07893, 3rd Dept 10-29-15

 

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Out-of-Possession Landlord and Lessee Are Not “United In Interest” Such that the Lessee Could Be Added to the Complaint After the Statute of Limitations Had Run (Relation-Back Doctrine)

The Third Department determined Supreme Court, in a snow-ice slip and fall case, properly denied plaintiff’s motion to amend the complaint, after the statute of limitations had run, to add the lessee of the property (Albany Medical Center Hospital [AMCH]) as a defendant. The defendant out-of-possession landlord demonstrated, under the terms of the lease, AMCH had the responsibility for maintaining the property in a safe condition. Because the out-of-possession landlord and AMCH were not “united in interest,” the relation-back doctrine did not apply:

… [T]he relation back doctrine permits a plaintiff to amend the complaint to add a defendant even though the statute of limitations had expired at the time of amendment so long as three requirements are met: “(1) both claims must arise out of the same occurrence, (2) [the] defendant and [the new party] were united in interest, and by reason of that relationship can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits, and (3) [the new party] knew or should have known that, but for a mistake by [the] plaintiff as to the identity of the proper party, the action would have been brought against it as well ” … . While there is no dispute that the first prong of this test is satisfied under these circumstances, we agree with Supreme Court that defendant and AMCH do not share unity of interest inasmuch as they cannot be said to “stand or fall together” … . “Indeed, unless the original defendant and new party are vicariously liable for the acts of the other[,] there is no unity of interest between them” … . McLaughlin v 22 New Scotland Ave., LLC, 2015 NY Slip Op 07883, 3rd Dept 10-29-15

 

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