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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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Escaped Calf Furnished the Condition or Occasion for Plaintiff’s Decedent’s Presence in the Road When She Was Struck, But Was Not the Proximate Cause of Plaintiff’s Decedent’s Being in the Road

The Fourth Department, over a dissent, determined that defendant’s motion for summary judgment should have been granted. A calf escaped from defendant farm. Plaintiff’s decedent stopped her car and got out to aid the calf.  Both plaintiff’s decedent and the calf were struck by a car when they were in the road, although there was no evidence decedent stopped her car because the calf blocked the road. The Fourth Department held that the escape of the calf did not “cause” the decedent to be in the road. Rather the escape of the calf furnished the condition or occasion for decedent to be in the road:

Although “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal . . . is negligently allowed to stray from the property on which the animal is kept” …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … . Here, in support of its motion, Drumm Farm established that any negligence on its part in allowing the calf to escape merely “created the opportunity for plaintiff to be standing [in the roadway], [but] it did not cause [her] to stand” there … . “In short, the [alleged] negligence of [Drumm Farm] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated” … . Importantly, plaintiff does not contend, and did not submit any evidence that would establish, that the calf’s presence in the road blocked decedent’s ability to travel in the southbound lane or otherwise forced decedent to stop her vehicle. Thus, Drumm Farm established as a matter of law that its “alleged negligent act, at most, caused the [calf to wander] out of the field, which was not the immediate cause of the accident” … , and plaintiff failed to raise a triable issue of fact in opposition … . Hain v Jamison, 2015 NY Slip Op 06074, 4th Dept 7-10-15

 

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Claims Against the State Based Upon Recurrent Flooding Properly In Supreme Court as Opposed to the Court of Claims/Criteria for Inverse Condemnation of Property Explained (Not Met Here)

The Fourth Department, over a two-justice dissent, determined that an action against the state alleging recurrent flooding of plaintiffs’ property was properly in Supreme Court, despite the statutory requirement that claims against the state for monetary damages be brought in the Court of Claims. The Fourth Department held that the state did not demonstrate that the essential nature of the claim was to recover money. The Fourth Department further determined that the cause of action for inverse condemnation was properly dismissed, explaining the criteria:

Contrary to defendant’s contention, the court properly denied that part of its cross motion seeking summary judgment dismissing all claims for money damages. Although defendant is correct that ” claims that are primarily against the State for damages must be brought in the Court of Claims, the Supreme Court may consider a claim for injunctive relief as long as the claim is not primarily for damages’ ” (… see Court of Claims Act § 9 [2]). “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” … . Here, defendant failed to establish in support of its cross motion that the essential nature of the causes of action for negligence, continuing nuisance, and continuing trespass is to recover money damages, and thus the court properly declined to grant summary judgment dismissing those causes of action.

We agree, however, with the further contention of defendant that the court erred in denying that part of its cross motion seeking summary judgment dismissing the cause of action for inverse condemnation, and we therefore modify the order accordingly. That cause of action alleged that the flooding intruded onto plaintiffs’ properties and interfered with their property rights to such an extent that it constituted “a constitutional taking requiring [defendant] to purchase the properties from plaintiffs.” It is well settled that such a “taking can consist of either a permanent ouster of the owner, or a permanent interference with the owner’s physical use, possession, and enjoyment of the property, by one having condemnation powers” … . “In order to constitute a permanent ouster, defendant[‘s] conduct must constitute a permanent physical occupation of plaintiff’s property amounting to exercise of dominion and control thereof’ ” … .

Here, defendant met its burden on its cross motion with respect to the cause of action for inverse condemnation by establishing as a matter of law that any interference with plaintiffs’ property rights was not sufficiently permanent to constitute a de facto taking … . Greece Ridge, LLC v State of New York, 2015 NY Slip Op 06072, 4th Dept 7-10-15

 

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Parking Lot Not “Suitable” for Recreational Use Pursuant to General Obligations Law 9-103—Statutory Assumption of Risk Re: Riding a Bicycle in the Parking Lot Not Available

The Fourth Department determined Supreme Court properly denied defendant’s motion for leave to amend its answer to allege a “recreational use” affirmative defense. Plaintiff’s son was injured when his bicycle struck a depressed area in defendant’s parking lot. Defendant sought to allege plaintiff’s son assumed the risk of injury because the parking lot was covered by the recreational use statute, General Obligations Law 9-103. The Fourth Department, finding that the parking lot was not “suitable” for recreational use, explained the relevant analytical criteria:

We conclude that the court properly determined that defendant’s proposed amendment patently lacks merit inasmuch as the recreational use statute does not apply to the facts of this case as a matter of law. It is undisputed that plaintiff’s son was engaged in one of the recreational activities enumerated in section 9-103, i.e., bicycle riding, when he was injured. To establish applicability of the statute, however, defendant was also required to show that its property “was suitable for the recreational activity in which plaintiff[‘s son] was participating when the accident occurred” … . “Whether a parcel of land is suitable and the immunity [of the recreational use statute] available is a question of statutory interpretation, and is, therefore, a question of law for the Court” … . Suitability is established by showing that the subject property is ” (1) physically conducive to the activity at issue, and (2) of a type that is appropriate for public use in pursuing that activity as recreation’ ” … . “A substantial indicator that the property is physically conducive to the particular activity is whether recreationists have used the property for that activity in the past; such past use by participants in the [activity] manifests the fact that the property is physically conducive to it” … . Here, defendant failed to submit any evidence that the property had been used in the past by “recreationists” for bicycle riding. Moreover, under the circumstances of this case, we conclude that the subject property is not appropriate for public use in pursuing bicycle riding as a recreational activity … . Indeed, the Court of Appeals has made clear that recreational use immunity should apply only to property that “the Legislature would have envisioned as being opened up to the public for recreational activities” … . Here, defendant failed to establish that its employee parking lot comes within the purview of that standard. Sasso v WCA Hosp., 2015 NY Slip Op 06066, 4th Dept 7-10-15

 

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