The Second Department determined summary judgment was properly granted to the defendant in a slip and fall case. The plaintiff alleged she slipped and fell on a sloped, grassy area on defendant’s property. The court held that the condition was “open and obvious and not inherently dangerous.” Correnti v Chinchilla, 2015 NY Slip Op 06878, 2nd Dept 9–23-15
The First Department, in a full-fledged opinion by Justice Renwick, determined plaintiff had raised a question of fact whether the city was liable for the death of the police officer’s girlfriend (plaintiff’s decedent) under a negligent hiring/retention/supervision theory. The shooting occurred when the officer, Maselli, was off duty in his home. Plaintiff alleged the city had notice of Maselli’s violent propensities:
In this case, the alleged duty owed to plaintiff stems from New York’s long recognized tort of negligent hiring and retention … . This tort applies equally to municipalities and private employers … . This theory of employer liability should be distinguished from the established legal doctrine of “respondeat superior,” where an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee’s duties or in furtherance of the employer’s interests … . In contrast, under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment … .
Thus, in this case, plaintiffs’ negligence claims do not depend on whether Maselli acted within the scope of his employment or whether the City participated in, authorized, or ratified Maselli’s tortious conduct. Rather, the alleged breach of duty stems from the claim that during Maselli’s employment with the City, the City became aware or should have become aware of problems with Maselli that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that plaintiff’s damages were caused by the City’s negligent retention, or supervision of Maselli.
The negligent retention or supervision of a police officer, which results in the employee having possession of a dangerous instrumentality, is similar to if not indistinguishable from the tort of entrusting a dangerous instrumentality to another. The duty analysis should be the same. “One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them” … . The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment. Gonzalez v City of the New York, 2015 NY Slip Op 06869, 1st Dept 9-22-15
The Second Department determined plaintiff was entitled to summary judgment on liability in a rear-end collision case. Plaintiff was driving 30 miles an hour when her car was struck from behind, indicating defendant-driver did not maintain a safe distance between the two cars. The court noted that statements made by the plaintiff which were memorialized in a hospital record were inadmissible because the statements were not necessary for diagnostic purposes and were not admissions:
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating, through her affidavit, that she was operating her vehicle in a lane of the Cross Bronx Expressway, proceeding straight ahead at approximately 30 miles per hour with her foot on the gas pedal, when her vehicle was struck in the rear within her lane of travel, suddenly and without warning, by the defendants’ vehicle. Thus, the plaintiff established, prima facie, that [defendant-driver] was negligent in failing to maintain a safe distance behind her vehicle, and that she did not contribute to the happening of the accident … . * * *
… [T]he defendants could not rely on certain statements in the plaintiff’s hospital records to raise a triable issue of fact, since, under the circumstances presented here, the details of how the plaintiff sustained particular injuries and how the accident occurred in this matter were not useful for purposes of her medical diagnosis or treatment and, accordingly, a medical chart entry containing such hearsay statements could not be considered to have been prepared in the regular course of the hospital’s business … . Accordingly, the statements contained in the chart entry are not admissible under the business records exception to the hearsay rule. Moreover, the entry was not inconsistent with the plaintiff’s description of the accident, as provided in her affidavit. Consequently, the entry was not admissible as an admission by the plaintiff … . Service v McCoy, 2015 NY Slip Op 06801, 2nd Dept 9-16-15
The Second Department determined a new trial was necessary in this pedestrian-injury case because defendant was allowed to place inadmissible hearsay, contained within a police report, in evidence. Plaintiff alleged she was struck by defendants’ car when she was crossing the street in a crosswalk with the light in her favor. Defendants alleged plaintiff was riding a bicycle and darted out between two cars. The police report supported defendants’ version. However, the officer who wrote the report testified he had no recollection of the source of the information in the report. The Second Department explained why none of the exceptions to the hearsay rule applied to the information in the report:
“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule” … . Pursuant to CPLR 4518(a), 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 … . If information contained in a police accident report was not based upon the police officer’s personal observations, it may nevertheless be admissible as a business record “if the person giving the police officer the information contained in the report was under a business duty to relate the facts to him [or her]” … . If the person giving the police officer the information was not under a business duty to give the statement to the police officer, such information “may be proved by a business record only if the statement qualifies [under some other] hearsay exception, such as an admission” … . In other words, “each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . “The proponent of hearsay evidence must establish the applicability of a hearsay-rule exception” … . Memenza v Cole, 2015 NY Slip Op 06789, 2nd Dept 9-16-15
The Second Department determined plaintiff had raised a triable issue fact in a medical malpractice action under the doctrine of res ipsa loquitur. The complaint alleged that, during surgery on her shoulder, a bone was fractured. The court explained the analytical criteria:
“[R]es ipsa loquitur [is] available in a narrow category of factually simple medical malpractice cases requir[ing] no expert to enable the jury to reasonably conclude that the accident would not happen without negligence” … . The doctrine is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “The doctrine is generally available to establish a prima facie case when an unexplained injury in an area which is remote from the treatment site occurs while the patient is anesthetized” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by [the] defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Swoboda v Fontanetta, 2015 NY Slip Op 06804, 2nd Dept 9-16-15
The Second Department determined defendant school district’s motion for summary judgment in a student’s “negligent supervision” action was properly granted. The student was grabbed by another student and had been the subject of bullying. The court found that the school was not on notice such that the act complained of was foreseeable:
To establish a breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of fellow students, a plaintiff must demonstrate that school authorities ” 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'” … . Actual or constructive notice of prior similar conduct is generally required, and injury caused by the “impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .
Here, the defendant established, prima facie, that the alleged assault by a student in the cafeteria was an unforseeable act and that it had no actual or constructive notice of prior conduct similar to the incident in the cafeteria … . Maldari v Mount Pleasant Cent. Sch. Dist., 2015 NY Slip Op 06788, 2nd Dept 9-16-15
The Second Department determined Supreme Court should have granted leave to file a late notice of claim in an action stemming from an assault by students against plaintiff (also a student). Plaintiff had been confronted and threatened by two students. Plaintiff’s mother informed the school and asked for a meeting with the two students’ parents. Nothing was done by the school. One week later, the plaintiff was beaten by the two students. Plaintiff sought to file a notice of claim a month after the 90-day deadline. The court explained the relevant analytical criteria:
General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim … . “Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim” … . The court must also consider other relevant circumstances, including: (1) whether the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner’s infancy and the delay in service of a notice of claim; (2) whether the claimant had a reasonable excuse for the delay; and (3) whether the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see General Municipal Law § 50-e[5]…).
Timely notice of the facts underlying the claim must be acquired within the 90-day period “or a reasonable time thereafter”… . Here the [defendants]received the petition for leave to serve a late notice of claim approximately one month after the expiration of the 90-day period. Thus, the [defendants] acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day period … .
Because the [defendants] acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice … . The [defendants’] conclusory assertions of prejudice, based solely on the petitioners’ one-month delay in serving the notice of claim, were insufficient to rebut the petitioners’ showing … . Matter of Regan v City of New York, 2015 NY Slip Op 06826, 2nd Dept 9-16-15
The First Department, over a dissent, determined the defendant New York City public school was entitled to summary judgment dismissing infant-plaintiff’s “negligent supervision” complaint. Infant-plaintiff had been taunted and bullied by a fellow student, referred to in the decision as WEM. Infant-plaintiff was injured when WEM pushed him into a bookcase. Although infant-plaintiff’s teacher had been notified of WEM’s bullying on the day of the incident, and the school administration had been notified infant-plaintiff was being taunted and bullied by (unidentified) students, the majority concluded the school was not on notice that WEM would act violently toward infant-plaintiff, and, even if the school had been so notified, the sudden incident could not have been prevented by supervision. The majority wrote:
Initially, while “schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” …, “unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school’s liability in negligence absent actual or constructive notice of prior similar conduct” … . Here, the record contains no evidence that the school had notice that WEM had a proclivity to engage in physically aggressive conduct. The evidence that plaintiff had complained to his teacher and others that WEM was “picking on him” and calling him names, and that his mother had called the principal’s office and reported that some unidentified boys were “picking on her son,” when viewed in the light most favorable to plaintiff, shows only that the school knew that WEM had been picking on plaintiff verbally. Knowledge of such taunting, however, did not give the school “sufficiently specific knowledge or notice” of “prior conduct similar to the unanticipated injury-causing act” by WEM to support a finding of actual or constructive notice of the risk that he would engage in violent or physically aggressive behavior against plaintiff … .
Summary judgment is also warranted because plaintiff has not raised an issue as to proximate causation. There is no non-speculative basis for finding that any greater level of supervision than was provided would have prevented the sudden and spontaneous altercation between the two students. “Schools are not insurers of safety” and “cannot reasonably be expected to continuously supervise and control all movements and activities of students” … . Emmanuel B. v City of New York, 2015 NY Slip Op 06750, 1st Dept 9-8-15
The Second Department determined Supreme Court should have granted defendant property owners’ motion for a judgment as a matter of law after the close of proof. Plaintiff, who tripped over the lip on defendants’ driveway, alleged the driveway was defective. After proof was closed, Supreme Court dismissed the complaint against the company which renovated the driveway, but denied the property owners’ motion to dismiss. Because plaintiff’s only theory was that the driveway was defective, and the property owners could only be liable for a hazardous condition caused by a failure to properly maintain the property, the complaint against the property owners should have been dismissed as well:
Dismissal of an action insofar as asserted against a contractor who performs work on premises does not mandate dismissal of the action insofar as asserted against the owner of the premises, since the owner has a duty to maintain the premises in a reasonably safe condition … . Here, however, the plaintiff’s theory of liability was that the driveway was defective. …[T]here was no evidence that the lip of the driveway was in a hazardous condition. Therefore, it was inconsistent to direct the dismissal of the complaint insofar as asserted against [contractor] while denying such relief to the appellants as homeowners, since no viable alternative theory of liability was asserted against the appellants … . Cioffi v Klein, 2015 NY Slip Op 06704, 2nd Dept 9-2-15
The Second Department determined the requirement that the city be notified in writing of a defect (here, a raised portion of a sidewalk) before liability for failing to repair will attach was not met. A phone call from the abutting property owner to the municipality, even if the communication is reduced to writing, is not sufficient. The court further held that the “open request” generated by the abutting property owner’s “311” call did not constitute the city’s “written acknowledgment” of a defective condition (an alternative to the “written notice” requirement):
The City demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence showing that no written notice of any defect was received with regard to the subject sidewalk … . In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, neither [the abutting property owner’s] “311” call nor the records generated by the City’s Department of Parks and Recreation (hereinafter the DPR) from that call provided the City with prior written notice of the sidewalk defect. A verbal or telephonic communication to a municipal body, even if reduced to writing, cannot satisfy the prior written notice requirement … . Nor did the “open request” generated from that “311” call, which was received by the DPR clerk on the computer system, constitute a “written acknowledgment” by the City of a defective condition … . Tortorici v City of New York, 2015 NY Slip Op 06721, 2nd Dept 9-2-15
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