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With Regard to the Suit Against the Perpetrator, Perpetrator’s Criminal Conviction Barred Relitigation in the Wrongful Death Case Stemming from a Stabbing Outside Defendant Bar/With Regard to the Suit Against Defendant Bar, Questions of Fact Raised About the Foreseeability of the Attack, the Proximate Cause of the Injury, and the Adequacy of Defendant Bar’s Security Measures

The Second Department determined plaintiff’s decedent’s estate was entitled to summary judgment against the defendant, Taylor, who stabbed plaintiff’s decedent outside a bar both had just left. Taylor had pled guilty to manslaughter and waived the justification defense. Taylor was therefore collaterally estopped from relitigating the issue in the civil proceeding. Questions of fact about the foreseeability of the stabbing, the proximate cause of the incident and the adequacy of security precluded summary judgment re: the liability of the bar defendants. The Second Department noted that Supreme Court should have overlooked the fact that the depositions submitted in motion practice were unsigned (a basis for Supreme Court’s denial of requested relief). No party raised the “unsigned deposition” issue and it amounted to only a minor irregularity:

“Where a criminal conviction is based upon facts identical to those in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of liability” … . “The doctrine applies whether the conviction results from a plea or a trial” … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” * * *

“A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties” … . “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected, but the criminal conduct at issue must be shown to be reasonably predictable based on prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . Here, the plaintiff met her prima facie burden of establishing her entitlement to judgment as a matter of law against [the bar defendants]. In opposition, the [bar defendants] raised a triable issue of fact on behalf … as to the issue of foreseeability, whether the decedent’s own conduct preceding the stabbing was a proximate cause of his injuries, and whether the … security measures were adequate … . Hartman v Milbel Enters., Inc., 2015 NY Slip Op 06314, 2nd Dept 7-29-15

 

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Road Washout Was Due to a Highway Design Issue for Which Adequate Remedial Planning Had Been Made—The Washout Was Not, Therefore, Caused by a Highway Maintenance Deficiency to Which the Negligence Standard Applies—State Entitled to Qualified Immunity Re: a Vehicle Accident Caused by a Sinkhole

The Third Department determined the maintenance and construction of a culvert, around which the road repeatedly washed out, was a highway design issue, for which the state was protected by qualified immunity, not a highway maintenance issue, for which a negligence standard applies. Claimant was injured when his vehicle went into a sinkhole near the culvert.

Municipalities unquestionably have a duty to maintain roads in a reasonably safe condition … . With respect to highway safety and design, however, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . Here, the gravamen of the claim is that the 9-foot-high, 15-foot-wide oval culvert that carried the Spuytenduiveil Creek underneath Route 8 was too small and should have been replaced. Plaintiff maintains that this condition presented a maintenance and repair issue that defendant was required to address in its proprietary capacity for which basic negligence and not sovereign immunity principles apply … . * * *

In order to successfully invoke the qualified immunity defense, defendant had the burden of demonstrating that its decision with regard to the replacement of the culvert “‘was the product of a deliberative decision-making process'” … . Even with design planning issues, liability may exist where the municipality does not adequately analyze the condition or if there is no reasonable basis for its plan … . If a remedial plan is developed, “liability may result from a failure to effectuate the plan within a reasonable period of time,” but “a reasonable delay justified by design considerations [or] a legitimate claim of funding priorities would not be actionable” … .

Based upon our review of the probative evidence, we agree with the Court of Claims that the replacement of the culvert presented a design and not a maintenance issue and that defendant was entitled to qualified immunity. Evans v State of New York, 2015 NY Slip Op 06288, 3rd Dept 7-23-15

 

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General Obligations Law Prohibition of Indemnification Agreements Which Exempt a Lessor from Its Own Negligence Does Not Apply to a Commercial Lease Negotiated at Arm’s Length Between Sophisticated Parties With an Insurance Procurement Requirement

The Second Department determined the lessor of a shopping center, Montauk Properties, under the terms of its lease with a supermarket, Gambar Food, was entitled to indemnification re: plaintiff’s slip and fall on a sidewalk in front of the supermarket.  Although the terms of the lease exempted the lessor from liability for its own negligence, which is a violation of General Obligations Law (GOL) 5-321, GOL 5-231 does not apply to a commercial lease negotiated at arm’s length between sophisticated parties with an insurance procurement requirement:

The lease between Montauk Properties and Gambar Food requires Gambar Food to indemnify Montauk Properties “for any matter or thing growing out of the occupation of the demised premises or of the streets, sidewalks or vaults adjacent thereto.” The plaintiff’s accident falls within the scope of this indemnification provision …, which, under its broadly drawn language, obligates Gambar Food to indemnify Montauk Properties for its own negligence. Although General Obligations Law § 5-321 provides that an agreement that purports to exempt a lessor from its own negligence is void and unenforceable, the subject indemnification provision is not rendered unenforceable by this statute. “[W]here, as here, the liability is to a third party, General Obligations Law § 5-321 does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm’s length between two sophisticated parties when coupled with an insurance procurement requirement” … . Campisi v Gambar Food Corp., 2015 NY Slip Op 06205, 2nd Dept 7-22-15

 

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Question of Fact Whether Softball Coach’s Having Infant Plaintiff Practice Sliding on Grass Increased the Inherent Risk of the Activity Precluded Summary Judgment

The Second Department determined the defendant school district did not demonstrate, in its motion for summary judgment, that the softball coach’s having infant plaintiff practice sliding on grass did not unreasonably increase the inherent risk of the activity. Therefore the school district’s motion was properly denied without any consideration of the opposing papers:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting 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 includes risks associated with the construction of the playing surface and any open and obvious condition on it … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . ” [A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff'”… .

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case … . Here, the defendants failed to establish, prima facie, that the infant’s coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity … . Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the motion and cross motion were properly denied, and the Court need not determine the sufficiency of the plaintiff’s opposition papers … . Brown v Roosevelt Union Free School Dist., 2015 NY Slip Op 06204, 2nd Dept 7-22-15

 

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Question of Fact Whether Negligent Supervision Was the Proximate Cause of the Injuries Plaintiff’s Son Suffered in an Attack by Another Student–the School Was Aware of Prior Assaultive Behavior by the Attacker and the School Was Aware of Recent Threats of Violence (Against Plaintiff’s Son) by the Attacker—The Court Noted that, In a Summary Judgment Motion, the Evidence Is Viewed in the Light Most Favorable to the Nonmovant

The Third Department determined questions of fact precluded summary judgment in favor of defendant high school in a negligent supervision case. Plaintiff’s son, LaValley, was assaulted by another student, Breyette, after plaintiff had alerted school officials about threats of violence made by Breyette against her son. Breyette had a history of assaultive behavior for which he was suspended in middle school. LaValley was punched 37 times in the school cafeteria in close proximity to a teacher who did not intervene and who was not aware of the conflict between the two students. The Third Department noted that, in determining a summary judgment motion, the evidence is viewed in the light most favorable to the nonmovant:

“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” … . Where a fellow student intentionally injures another, the duty is breached if the school had actual or constructive notice of the conduct that caused the injury such that the acts of the fellow student could have been reasonably anticipated … . The adequacy of supervision and proximate cause are generally issues of fact for the jury … .

Viewing the evidence in the light most favorable to plaintiff as the nonmovant …, we note that Breyette had a history of assaultive behavior, including a previous assault against LaValley in middle school that resulted in Breyette’s out-of-school suspension. There is also evidence that, within the month prior to the assault, Breyette specifically threatened violence against LaValley, and plaintiff testified that she immediately informed the high school principal about this threat. Plaintiff also testified that she brought up the conflict between LaValley and Breyette during a meeting with the principal and her son’s teachers. Although the principal acknowledged that plaintiff had informed him about the conflict and he testified that he spoke to Breyette about it, Breyette denied that the principal had spoken to him prior to the attack. The attack itself occurred in the school cafeteria, in close proximity to a teacher who had not been notified of the threat or the conflict between the two students. According to Breyette, he calmly approached LaValley, called his name to get his attention and proceeded to punch him in the head 37 times without any adult intervention. He did not stop until another student intervened. In light of this evidence, we agree with Supreme Court that factual issues exist with respect to the adequacy of defendants’ supervision and whether the lack of adequate supervision was a proximate cause of LaValley’s injuries … . LaValley v Northeastern Clinton Cent. Sch. Dist., 2015 NY Slip Op 06187, 3rd Dept 7-16-15

 

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Evidence of Post-Accident Elevator-Repairs Not Discoverable

The Second Department determined plaintiff, who was injured in an elevator accident, was not entitled to the post-accident elevator-repair records. Such records are only discoverable if there is a question about whether a defendant actually maintains or has control over an instrumentality, not the case here:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” … . “[E]vidence of subsequent repairs is not discoverable or admissible in a negligence case” … . An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue … .

Here, the plaintiff moved to compel production of post-accident repair records generated during the three-year period between the date of the plaintiff’s accident and the date of the inspection of the subject elevator by the plaintiff’s expert. Yet it is undisputed that the defendant exercised maintenance and control over the elevator. Graham v Kone, Inc., 2015 NY Slip Op 06111, 2nd Dept 7-15-15

 

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Most Important Among the Criteria for Allowing a Late Notice of Claim Is the Municipality’s Timely Knowledge of the Essential Facts Underlying the Claim (Not Met Here)

In finding Supreme Court properly denied plaintiff’s petition for leave to serve a late notice of claim, the Second Department explained the relevant criteria, noting it is most important that the municipality have timely knowledge of the actual facts underlying the claim:

“In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits” … . “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” … . The determination to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court … . Matter of Barrett v Village of Wappingers Falls, 2015 NY Slip Op 06138, 2nd Dept 7-15-15

 

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Criteria for Vicarious Liability of Hospital for Actions of Non-Employee Physician Explained (Not Met Here)

The Second Department determined summary judgment dismissing the complaint should have been granted to defendant hospital. The suit against the hospital was based upon the actions of a non-employee physician chosen by the plaintiff.  The Second Department succinctly explained the theories under which a hospital may be liable for the actions of a non-employee physician (none of which applied here):

Generally speaking, a hospital may not be held vicariously liable for the negligence of a private attending physician chosen by the patient … . Moreover, so long as the resident physicians and nurses employed by the hospital have merely carried out that private attending physician’s orders, a hospital may not be held vicariously liable for resulting injuries … . These rules will not, however, shield a hospital from liability in three situations. The first is when the private physician’s orders “so greatly deviate from normal medical practice that [the hospital’s employees] should be held liable for failing to intervene” … . Put another way, a hospital may be held liable when the staff follows orders despite knowing “that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Second, a hospital may be held liable when its employees have committed independent acts of negligence … . Third, a hospital may be held liable for the negligence of a private, nonemployee physician on a theory of ostensible or apparent agency … . Doria v Benisch, 2015 NY Slip Op 06109, 2nd Dept 7-15-15

 

Failure to Affirmatively Demonstrate When the Area Where the Slip and Fall Occurred Was Last Inspected and Failure to Affirmatively Demonstrate the Condition Was a “Latent Defect” Precluded Summary Judgment—Defendants Failed to Affirmatively Demonstrate the Absence of Constructive Notice of the Condition

The Second Department determined Supreme Court properly denied defendants’ motion for summary judgment in a slip and fall case, in another illustration of the need to eliminate every possible theory of recovery in order to be awarded summary judgment.  Here it was alleged plaintiff slipped and fell on a loose piece of slate. Defendants demonstrated the absence of actual notice, but did not present evidence of when the area was last inspected prior to the fall and did not demonstrate the defect was “latent” (which would have demonstrated the absence of constructive notice):

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendants] to discover and remedy it” … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … . In demonstrating that it lacked constructive notice of a visible and apparent defect, “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” slipped and fell … .

Here, the deposition testimony … established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall … . However, in the absence of any evidence as to when the defendants last inspected the landing before the accident …, or that the allegedly loose piece of slate on the landing was a latent defect that could not have been discovered upon a reasonable inspection … , the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly loose piece of slate on the landing … . Bergin v Golshani, 2015 NY Slip Op 06103, 2nd Dept 7-15-15

 

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Questions of Fact Whether Infant-Plaintiff’s Injury at the Hands of Other Students Was Proximately Caused by Negligent Supervision and/or Negligent Hiring and/or Retention

The Second Department determined the defendant-school’s motion for summary judgment was properly denied.  There were questions of fact concerning whether the school had notice of a student’s prior altercations with infant plaintiff and whether a teacher took appropriate steps to intervene to prevent injury to infant plaintiff. Infant plaintiff alleged he was injured when assaulted 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” … . Here, in support of their motion, the appellants failed to establish, prima facie, that they lacked sufficiently specific knowledge or notice of the dangerous conduct that allegedly caused the infant plaintiff’s injuries … . The appellants’ moving papers failed to eliminate all triable issues of fact as to whether they had knowledge of a particular student’s dangerous propensities arising from his involvement in other altercations with the infant plaintiff … . The appellants’ moving papers also failed to eliminate all triable issues of fact as to whether a teacher failed to take “energetic steps to intervene” to prevent the infant plaintiff’s injuries at the hands of a group of his classmates … . Amandola v Roman Catholic Diocese of Rockville Ctr., 2015 NY Slip Op 06099, 2nd Dept 7-15-15

 

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