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In a Case Consolidated with the Case Summarized Immediately Above, Defendant Was Entitled to Summary Judgment After Demonstrating None of the Three Theories of “Tort Liability Arising from Contract” Applied—Because the Facts Are Not Discussed, It Is Not Clear Why All Three Potential Theories Were Addressed in this Action But Only One Needed to Be Addressed in the Other (To Be Safe, Address All Three?)

In a case which was consolidated with the case summarized immediately above, the Second Department determined the defendant, J.D. Posillica, Inc., was entitled to summary judgment dismissing the complaint because it had demonstrated that none of the three theories of “tort liability arising from a contract” applied. It is not clear from the decision whether the defendant was required, by the nature of the pleadings, to address all three theories in order to be entitled to summary judgment (to be safe, address all three?):

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely … . Here, the defendant J.D. Posillico, Inc. … , met its initial burden of establishing its entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it by demonstrating, prima facie, that none of the exceptions were applicable as against it in this case… . Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06581, 2nd Dept 8-19-15

 

Plaintiff Entitled to Summary Judgment—Plaintiff Demonstrated Defendant’s Negligence and Plaintiff’s Freedom from Comparative Fault

The Second Department determined plaintiff-pedestrian, who was struck by defendant when in a crosswalk, was entitled to summary judgment.  The court explained plaintiff had demonstrated both required elements: (1) defendant was negligent; and (2) plaintiff was free from comparative negligence. Defendant’s opposing affidavit, which contradicted his deposition testimony, raised only “feigned” issues and did not, therefore, raise a question of fact:

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault …, since there can be more than one proximate cause of an accident … . Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff’s comparative fault … .

The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk at the southwest corner of 84th Street and 17th Avenue and during the course of crossing the street, he looked both ways for oncoming vehicles and that, as he was crossing 17th Avenue within the crosswalk, with the pedestrian control and traffic control devices in his favor, [defendant] failed to yield the right-of-way to him … . The evidence submitted by the plaintiff demonstrated that [defendant] violated Vehicle and Traffic Law § 1111(a)(1) and that the plaintiff was not at comparative fault in the happening of the accident. In opposition, the defendants submitted [defendant-driver’s] affidavit, which contradicted his earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat the plaintiff’s motion… . Zhu v Natale, 2015 NY Slip Op 06586, 2nd Dept 8-19-15

 

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Defendant, In Its Summary Judgment Motion, Properly Addressed Only the Theory of “Tort Liability Arising from Contract” Which Was Alleged in the Pleadings

The Second Department determined defendant was entitled to summary judgment in an action based upon the allegation defendant had “launched an instrument of harm,” thereby imposing liability in tort arising from a contract. Defendant demonstrated it did not launch and instrument of harm and plaintiff failed to raise a question of fact in response. The court explained the applicable law, noting that defendant need only address the specific theory of contract-based liability which was raised in the pleadings:

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely … . Here, the only exception alleged in the pleadings with respect to the defendant Wiley Engineering, P.C. (hereinafter Wiley), was that Wiley launched a force or instrument of harm … . Therefore, in moving for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, Wiley was only required to address this exception by demonstrating, prima facie, that it did not launch a force or instrument of harm creating or exacerbating any allegedly dangerous condition … . Here, Wiley met its prima facie burden and, in opposition, the plaintiff failed to raise a triable issue of fact. Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06580, 2nd Dept 8-19-15

 

Plaintiff, a Monitor in a Golf Program, Assumed the Risk of Injury in a Golf-Cart Accident

The First Department determined that defendant was entitled to summary judgment dismissing the complaint on the ground that plaintiff had assumed the risk of riding in a golf cart driven by defendant. Both plaintiff and defendant were participating in a golf program. Defendant, 17-year-old Andrew Jiminez, was driving a golf cart with plaintiff as a passenger when he allegedly made a “full speed” sharp turn, throwing plaintiff out of the cart. Reversing Supreme Court, the First Department held that plaintiff had assumed the risk of injury from defendant’s operation of the golf cart. The fact that plaintiff was not performing her golf-program duties at the time of the accident was deemed irrelevant:

A plaintiff who voluntarily participates in a sporting or recreational event generally is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, participation in the sport … . “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . A nonparticipant may also be subject to a defense based on the doctrine of assumed risk … .

“[G]olfers …. must be held to a common appreciation of the fact that there is a risk of injury from improperly used carts on a fairway which is inherent in and aris[es] out of the nature of the sport generally and flow[s] from participation in it” … . Here, plaintiff knowingly and voluntarily rode in a golf cart operated by Jimenez, a 17 year old participant in the AGY program, on a golf course, during a golf tournament in which she was assigned to monitor a par-three hole for any player that got a hole in one. While plaintiff contends that she did not know that Jimenez was an unlicensed driver, she knew that he was a minor yet made no attempt to determine whether he had a license or whether he should be operating a golf cart.

The fact that plaintiff was not actively performing her duties of monitoring the hole at the time of her injury does not render the doctrine inapplicable. “[T]he assumption [of risk] doctrine applies to any facet of the activity inherent in it” … . The salient point is that the accident involved a sporting or recreational activity that “occurred in a designated athletic or recreational venue” … . Valverde v Great Expectations, LLC, 2015 NY Slip Op 06561, 1st Dept 8-18-15

 

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Where the State Is a Potential Joint Tortfeasor Which Cannot Be Joined In the Supreme Court Action with the Other Defendant (Because the State Must Be Sued in the Court of Claims), the Jury in the Supreme Court Trial Should Be Allowed, If Appropriate, to Apportion Damages Between the Defendant and the State

Plaintiff was injured when a tree limb fell and struck her car while she was driving on a state highway. Plaintiff sued both the defendant (the property owner) and the state. However, the state could be sued only in the Court of Claims, so two separate actions were brought against the two potential tortfeasors. The Third Department, in a case of first impression, in a full-fledged opinion by Justice McCarthy, over a partial dissent, determined that evidence of both the defendant’s and the state’s liability could be presented in the Supreme Court trial and the jury should, if appropriate, be allowed to apportion damages between the defendant and the state:

“Under CPLR article 16, a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of [a] plaintiff’s noneconomic damages, but severally liable for its proportionate share” … . The provision was promulgated as a modification of the common-law theory of joint and several liability, the purpose of which was to “remedy the inequities created by joint and several liability on low-fault, ‘deep pocket’ defendants” … . However, where potential tortfeasors are not joined in an action, the culpability of a nonparty tortfeasor may be imposed upon the named defendant if the plaintiff can show that he or she is unable to obtain jurisdiction over the nonparty tortfeasor (see CPLR 1601 [1]). Here, plaintiffs do not face a jurisdictional limitation in impleading the State as a codefendant, but instead cannot do so due to the doctrine of sovereign immunity … . Plaintiffs’ only recourse against the State is to pursue an action in the Court of Claims (see Court of Claims Act §§ 8, 9). Likewise, if defendant is found liable in Supreme Court, it could seek indemnification from the State relative to its share of actual culpability as an additional claimant in the subsequent Court of Claims action … .

CPLR 1601 (1) is silent in regard to whether the State’s proportionate share of liability should be considered in calculating a defendant’s culpability in an action like the one at bar, and we have never decided the issue. * * *

Although we recognize the possibility of inconsistent verdicts as to the apportionment of fault in Supreme Court and in the Court of Claims, we note that this risk arises regardless of whether or not the jury is entitled to apportion liability between defendant and the State … . Given the statutory purpose of CPLR 1601 (1) to “limit[] a joint tortfeasor’s liability for noneconomic losses to its proportionate share, provided that it is 50% or less at fault” …, we find that juries in this scenario should be given the option to, if appropriate, apportion fault between defendant and the State. Artibee v Home Place Corp., 2015 NY Slip Op 06556, 3rd Dept 8-13-15

 

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Failure to Adequately Describe Location of Slip and Fall Rendered Notice of Intention Jurisdictionally Defective

The Third Department determined claimant’s notice of intention was jurisdictionally defective because it did not adequately describe the location of plaintiff’s alleged slip and fall on ice and snow:

Court of Claims Act § 11 (b) requires that a notice of intention to file a claim set forth, among other things, “the time when and place where such claim arose” … . While “absolute exactness” is not necessary … a claimant must “provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability” … . “Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result” … .

Claimant’s notice of intention states that he slipped and fell on unseen ice on a sidewalk “on the campus of the State University of New York at Oneonta.” While we recognize that notices of intention are reviewed less strictly than claims …, we nevertheless find that this generalized description of the location at which claimant fell was insufficient to permit defendant to investigate its liability … . Because claimant’s notice of intention was deficient, claimant did not receive the benefit of the two-year extension and was obligated to file his claim within 90 days of its accrual … . As claimant failed to do so, his claim was properly dismissed. Sommer v State of New York, 2015 NY Slip Op 06472, 3rd Dept 8-6-15

 

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Question of Fact Whether Firefighter’s Injury Was Proximately Caused by Driver’s Negligent Operation of His Car Under the “Danger Invites Injury” Doctrine—Firefighter Was Injured Removing Injured Driver from His Car After an Accident

The Second Department determined a firefighter may be entitled to coverage under his own insurance policy’s supplementary uninsured/underinsured motorists (SUM) coverage. Plaintiff-firefighter responded to a car accident and injured his shoulder removing the injured driver, Goodman, from his car. Plaintiff recovered the limit ($25,000) of Goodman’s policy and sought to recover under his own SUM endorsement. Reversing Supreme Court, the Second Department held it could not be determined as a matter of law that plaintiff’s injury was not proximately caused by Goodman’s negligent use of his car. Plaintiff had invoked the “danger invites rescue” doctrine in support of his argument that his shoulder injury was proximately caused by Goodman’s negligence:

SUM endorsements provide coverage only when the injuries are “caused by an accident arising out of such underinsured motor vehicle’s ownership, maintenance or use” … . Factors to be considered in determining whether an accident arose out of the use of a motor vehicle include whether the accident arose out of the inherent nature of the vehicle and whether the vehicle itself produces the injury rather than merely contributes to cause the condition which produces the injury … . ” [T]he [vehicle] itself need not be the proximate cause of the injury,’ but negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury'” … . ” To be a cause of the injury, the use of the motor vehicle must be closely related to the injury'” … . “[T]he use of the underinsured vehicle must be a proximate cause of the injuries for which coverage is sought” … .

[Plaintiff] invoked the doctrine of “danger invites rescue” to establish that Goodman’s negligent use of the underinsured vehicle proximately caused his injuries. That doctrine imposes liability upon a party who, “by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid” … . The doctrine also applies “where the culpable party has placed himself [or herself] in a perilous position which invites rescue” … . “In order for the doctrine to apply, the rescuer must have had a reasonable belief that the person being rescued was in peril” … .

Here, [the insurer] failed to establish that [plaintiff] was not entitled to coverage under the SUM endorsement. The evidence in the record establishes that Goodman’s negligent use of his vehicle directly caused the accident that led to him being trapped and in obvious need of medical attention, which, in turn, led to Rich’s intervention and resulting injuries … . It cannot be said, as a matter of law, that Goodman’s negligent use of his vehicle was not a proximate cause of [plaintiff’s] injuries under the doctrine of danger invites rescue. Accordingly, the Supreme Court should have denied that branch of the petition which was to permanently stay arbitration. Matter of Encompass Indem. Co. v Rich, 2015 NY Slip Op 06432, 2nd Dept 8-5-15

 

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Apportionment of Damages Between the City and the Contractor Who Negligently Set Up Lane Closures for Its Highway Work Was Not Supported by the Weight of the Evidence—New Trial for Apportionment of Damages Ordered/Two-Justice Dissenting Opinion Argued that Plaintiffs’ Counsel’s Vouching for His Own Credibility and Attacking the Credibility of Defense Witnesses In Summation Warranted a New Trial

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined the weight of the evidence did not support a 65%/35% apportionment of damages to the city (65%) and the contractor (35%) who set up lane closures for highway repair work. Plaintiff was severely injured in an accident which the jury found was the result of the failure to adequately warn drivers of upcoming lane closures. Because the lane closures were the responsibility of the contractor, the majority determined the 65%/35% damages apportionment was not supported the weight of the evidence and sent the matter back for a new trial on the apportionment of liability. Much of the opinion, including the entirety of the dissenting opinion, focused on the propriety of remarks made by plaintiffs’ counsel during summation (vouching for his own credibility, attacking the credibility of defense witnesses, etc.):

It is well settled that trial counsel is afforded wide latitude in presenting arguments to a jury in summation … . During summation, an attorney “remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff’s proofs without depriving the plaintiff of a fair trial” … . However, an attorney may not “bolster his case . . . by repeated accusations that the witnesses for the other side are liars” …. .

Although the City failed to object to the bulk of the challenged comments during summation, the City moved for an immediate mistrial based on comments impugning defense counsel, the reference to “Wang and his gang,” and plaintiffs’ counsel’s allegedly vouching for his own credibility. We find that although some of the comments were highly inflammatory, they did not ” create a climate of hostility that so obscured the issues as to have made the trial unfair'” … . The jury had ample reason to question the testimony of Officer Pagano, lessening the danger that they were improperly influenced by plaintiff’s counsel’s remarks. Gregware v City of New York, 2015 NY Slip Op 06408, 1st Dept 8-4-15

 

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Village Immune from Suit Alleging Negligence of Ambulance Personnel Who Responded to a 911 Call

The Second Department determined the village was entitled to summary judgment in an action alleging negligence on the part of ambulance personnel responding to a 911 call. The ambulance service is a governmental function for which the city cannot be held liable absent a special relationship with plaintiff (not the case here). The court explained the relevant law:

“When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty’ to the injured party” … . Such a special duty can arise, as relevant here, where “the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally,” or, in other words, where the municipality “voluntarily assumed a special relationship’ with the plaintiffs” … . A municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiffs where there is: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Earle v Village of Lindenhurst, 2015 NY Slip Op 06311, 2nd Dept 7-29-15

 

Plaintiff Allegedly Assaulted by Intoxicated Patron–Proof Requirements Under Dram Shop Act Explained

The Second Department determined the defendant bar was not entitled to summary judgment dismissing the complaint. Plaintiff alleged she was assaulted by an intoxicated patron. The court explained the proof requirements under the Dram Shop Act (General Obligations Law 11-101):

… [W]here a plaintiff alleges that he or she was assaulted by an intoxicated individual, to establish prima facie entitlement to judgment as a matter of law dismissing a complaint alleging a violation of the Dram Shop Act, a defendant is “required to establish either that it did not serve alcohol to [the plaintiff’s assailant] while he [or she] was visibly intoxicated or that its sale of alcohol to him [or her] had no reasonable or practical connection to the assault” … . Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. Covert v Wisla Corp., 2015 NY Slip Op 06308, 2nd Dept 7-29-15

 

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