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School District Failed to Demonstrate It Did Not Have Actual or Constructive Notice of Student’s Potential to Harm Other Students

The Second Department, over a dissent, determined the school district’s motion for summary judgment was properly denied. The district failed to demonstrate it did not have actual or constructive notice of a student’s potential for harming other students:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “An 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” … .

* * * [The school district’s] submissions failed to eliminate all triable issues of fact as to whether the School District had actual or constructive notice of the fellow student’s potential for causing harm, and whether, under the circumstances, the School District provided adequate supervision during the field trip … . Lennon v Cornwall Cent. School Dist., 2015 NY Slip Op 07628,, 2nd Dept 10-21-15

 

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Forum Selection and Time Limitation Clauses in Cruise Ship Ticket Enforceable

The Second Department, reversing Supreme Court, determined that the forum selection and time limitation clauses in a “Carnival” cruise ship ticket were enforceable. The passenger’s personal injury complaint was dismissed:

A contractual forum selection clause contained in a cruise passenger ticket is generally enforceable as long as it has been reasonably communicated to the passenger and does not violate notions of fundamental fairness, and the submission thereof constitutes documentary evidence that may provide a proper basis for dismissal of an action pursuant to CPLR 3211(a)(1) … . Here, Carnival’s submissions established that the plaintiffs’ contract of carriage included a clause requiring that any disputes between the parties “shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.” Furthermore, the contract provided that an action to recover damages for personal injuries “shall not be maintainable unless filed within one year after the date of the injury.” Carnival also established that the plaintiffs had a reasonable opportunity to review their tickets, and there is no allegation of fraud or overreaching … . Fritsche v Carnival Corp., 2015 NY Slip Op 07618, 2nd Dept 10-21-15

 

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No “Special Relationship” Between School District and Teacher Injured by Student

The Second Department determined the absence of a special relationship between the city/school district and a teacher injured by a student required dismissal of the teacher’s action. Although a special relationship exists between a school district and the minor students, a special relationship exists between a school district and a teacher only in limited circumstances:

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured … . Although a school district owes a special duty to its minor students, that duty does not extend to teachers, administrators, or other adults on or off school premises … .

With regard to teachers, administrators, or other adults on or off school premises, a special relationship with a municipal defendant can be formed in three ways: ” (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … .

Here, as the Supreme Court correctly concluded, the school defendants established, prima facie, that they did not owe the plaintiff a special duty… . Brumer v City of New York, 2015 NY Slip Op 07611, 2nd Dept 10-21-15

 

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Negligent Supervision and Retention and Respondeat Superior Causes of Action Against City Department of Education (DOE) Should Not Have Been Dismissed—Complaint Alleged Sexual Abuse of Student By Teacher

The Second Department determined the causes of action against the City of New York Department of Education (DOE) alleging negligent supervision and retention of a teacher, as well as liability based upon respondeat superior, should not have been dismissed. The complaint alleged the sexual abuse of a student by a teacher, Watts, over the course of two years. The DOE failed to demonstrate it did not have actual or constructive notice of the teacher’s propensity for sexual abuse. Although the respondeat superior theory did not apply to the teacher (who acted outside the scope of employment) other employees, who were acting within the scope of employment, may have been negligent:

“Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . “Actual or constructive notice to the school of prior similar conduct generally is required” … . Similarly, in order to establish a cause of action based on negligent retention of an employee, “it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the moving defendants failed to establish, prima facie, that the DOE had no specific knowledge or notice of Watts’ propensity to engage in the misconduct alleged in the complaint … . * * *

The Supreme Court also should have denied that branch of the moving defendants’ motion which was for summary judgment dismissing the cause of action alleging liability based upon a theory of respondeat superior insofar as asserted against the DOE. “Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the DOE may not be held liable under a theory of respondeat superior for the alleged misconduct committed by Watts, as it is undisputed that those acts were not committed in furtherance of the DOE’s business and within the scope of Watts’ employment … . However, as the plaintiffs correctly contend, the complaint adequately alleged that other employees of the DOE were negligent in the performance of their respective duties, and that such negligence constituted a proximate cause of the infant plaintiff’s injuries. In this regard, the moving defendants failed to establish, prima facie, that these other employees were not acting within the scope of their employment …, that they were not negligent, or that any such negligence was not a proximate cause of the alleged injuries … . Nevaeh T. v City of New York, 2015 NY Slip Op 07642, 2nd Dept 10-21-15

 

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Inadequate Pain and Suffering Damages Verdict Properly Set Aside

The Second Department determined the jury’s pain and suffering damages award in a slip and fall case was against the weight of the evidence and Supreme Court properly set the damages verdict aside:

After a trial on the issue of damages, the jury awarded the plaintiff the sum of $20,000 for past pain and suffering and $0 for future pain and suffering. The trial court correctly granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages, as that verdict was contrary to the weight of the evidence. The jury’s determination that the plaintiff was not entitled to damages for future pain and suffering was inconsistent with the evidence that her shoulder injury was permanent in nature … . The award for past pain and suffering was also contrary to the weight of the evidence, as it could not have been reached on any fair interpretation of the evidence … . Santana v Western Beef Retail, Inc., 2015 NY Slip Op 07639, 2nd Dept 10-21-15

 

Analytical Criteria for Determining Whether a Defect Is Trivial Explained

The Court of Appeals, in a full-fledged opinion by Judge Fahey, tackled the topic of “trivial defects” in slip and fall cases.  The court looked at three actions where the defect was deemed trivial, and reversed two of them. The court explained the analytical principles:

The repetition of the phrase “not constituting a trap” in many Appellate Division opinions should not be taken to limit the means by which a plaintiff may demonstrate a question of fact concerning the hazard posed by a physically small defect. Liability does not “turn[] upon whether the hole or depression, causing the pedestrian to fall, . . . constitutes ‘a trap’ ” … . The case law provides numerous examples of factors that may render a physically small defect actionable, including a jagged edge …; a rough, irregular surface …; the presence of other defects in the vicinity …; poor lighting …; or a location — such as a parking lot, premises entrance/exit, or heavily traveled walkway — where pedestrians are naturally distracted from looking down at their feet … .

Our survey of such cases indicates that the lower courts, appropriately, find physically small defects to be actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot. Attention to the specific circumstances is always required and undue or exclusive focus on whether a defect is a “trap” or “snare” is not in keeping with [our precedent]. Hutchinson v Sheridan Hill House Corp., 2015 NY Slip Op 07578, CtApp 10-20-15

 

Proof of Janitorial Schedule Insufficient to Demonstrate Lack of Notice of Dangerous Condition

The First Department, over an extensive dissent, determined proof of a janitorial cleaning schedule was not sufficient to demonstrate defendant’s lack of notice of a dangerous condition. Defendant’s motion for summary judgment should not have been granted:

Defendant building owner moved for summary judgment solely on the basis that it had neither actual nor constructive notice of the alleged dangerous condition, a missing drain cover in the building’s laundry room. Defendant failed to meet its initial burden of demonstrating that it did not have constructive notice … . Although the building superintendent testified that he routinely swept the laundry room every morning at 8:00 a.m. and performed daily inspections of the building, including the laundry room, at 11:00 a.m. and 8:00 p.m. each day, mere proof of a set janitorial schedule does not prove that it was followed on the day of the accident, or eliminate the issue of constructive notice in this case … . The superintendent could not recall whether he had checked the laundry room on the day of the accident or offer any other evidence regarding the last time he inspected the laundry room prior to the accident … . He explicitly stated that he did know whether the allegedly defective condition existed on that date. Dylan P. v Webster Place Assoc., L.P., 2015 NY Slip Op 07600, 1st Dept 10-20-15

 

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Criteria for Labor Law 200 and Common Law Negligence Causes of Action Explained

The Second Department affirmed the grant of summary judgment to defendants on the Labor Law 200 and common law negligence causes of action. Plaintiff was working on a roof when a co-worker’s water jug rolled down the roof, struck him and caused him to fall to the roof. The complaint alleged the injury arose from the manner the work was performed and from a dangerous condition.  The court noted that, because the complaint alleged both theories of liability, the summary judgment motion must address both. The court explained the relevant analytical criteria:

“Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work” … . “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed at a work site, an owner or manager of real property must have authority to exercise supervision and control over the work at the site” … . However, “the right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence” … . “Where a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a [defendant] may be liable under Labor Law § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . Where an accident is alleged to involve both a dangerous condition on the premises and the “means and methods” of the work, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards … . * * *

The defendants established, prima facie, both that they did not create or have actual or constructive notice of the allegedly dangerous condition which caused the injured plaintiff’s accident, and that they did not have the authority to supervise or control the means and methods of the injured plaintiff’s work … . In opposition, the plaintiffs failed to raise a triable issue of fact. Banscher v Actus Lend Lease, LLC, 2015 NY Slip Op 07461, 2nd Dept 10-14-15

 

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Owner of Rental Vehicle May Be Liable Based Upon Failure to Maintain the Vehicle

The Second Department, reversing Supreme Court, determined the Graves Amendment (which immunizes owners of rental vehicles from liability for the use of vehicles) did not apply where the complaint alleged a failure to maintain the vehicle. Because the defendant, PV Holding, did not demonstrate the alleged failure to maintain the vehicle did not result in the accident, the defendant’s summary judgment motion should have been denied:

Pursuant to the Graves Amendment (49 USC § 30106), generally, the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner (see 49 USC § 30106[a]…). The Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle … . The PV defendants failed to establish, prima facie, PV Holding’s entitlement to judgment as a matter of law. Although the PV defendants submitted evidence showing that PV Holding was engaged in the business of renting vehicles and that regular maintenance was performed on the subject vehicle, the PV defendants failed to submit any admissible evidence to demonstrate that the accident was not caused by the condition of the vehicle as a consequence of PV Holding’s allegedly negligent failure to maintain it … . Olmann v Neil, 2015 NY Slip Op 07483, 2nd Dept 10-14-15

 

Property Owner Not Liable for Tracked-In Rain

In finding the grant of summary judgment to defendant was proper, the Second Department explained a property owner’s liability for tracked-in rain water:

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . A general awareness that water might be tracked into a building when it rains is insufficient to impute, to a defendant, constructive notice of the particular dangerous condition … . Moreover, a property owner is “not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by presenting evidence that it did not create or have actual or constructive notice of the alleged dangerous condition. In opposition, the plaintiff failed to raise a triable issue of fact. Grib v New York City Hous. Auth., 2015 NY Slip Op 07472, 2nd Dept 10-14-15

In support of similar findings in another case, the Second Department explained:

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, snow, or ice 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 … .

Here, in support of their motion, the defendants submitted evidence sufficient to demonstrate, prima facie, that they did not create the alleged hazardous condition or have actual or constructive notice of it … . In opposition, the plaintiff failed to raise a triable issue of fact. “A general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition”… . Murray v Banco Popular, 2015 NY Slip Op 07482, 2nd Dept 10-14-15

 

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