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Bus Company’s Duty of Care Did Not Include Keeping Steps to the Bus Dry and Free of Snow During a Snow Storm

Reversing Supreme Court, the Second Department determined the defendant bus company could not be held liable for a slip and fall on wet steps on a bus during a snow storm:

“[A] common carrier is subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case” … . Here, contrary to the Supreme Court’s determination, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by showing that it did not breach any duty to the plaintiff under the circumstances that existed at the time of the accident … . Given the inclement weather conditions when the accident occurred, “it would be unreasonable to expect the [defendant] to constantly clean the steps of the subject bus” … . Batista v MTA Bus Co., 2015 NY Slip Op 05430, 2nd Dept 6-24-15

 

Defendant Entitled to Summary Judgment–No Notice of Wet Condition Where Plaintiff Fell

Reversing Supreme Court, the Second Department determined the defendant was entitled to summary judgment in a slip and fall case.  The defendant demonstrated it did not have actual or constructive notice of the condition (wet floor). An affidavit by a member of the maintenance crew stated that the area where plaintiff fell had been inspected 10 to 15 minutes before the fall and there had been no complaints about a wet condition. The court explained the relevant law:

The owner or possessor of property has a duty to maintain his or her property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … .

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it neither created nor had actual or constructive notice of the condition alleged by the plaintiff to have caused the accident. In support of its motion, the defendant relied upon, among other things, the affidavit of Charles Barber, a member of the maintenance crew at the subject store on the date of the accident. Barber averred that he had inspected the area where the plaintiff alleged that she fell approximately 10 to 15 minutes prior to the accident and observed no water in the area at that time. He further averred in his affidavit that at no point prior to the accident did he ever receive any complaints of any kind concerning the area where the plaintiff allegedly fell. Mehta v Stop & Shop Supermarket Co., LLC, 2015 NY Slip Op 05450, 2nd Dept 6-24-15

 

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Notice of Claim Timely Served by an Unauthorized Method Deemed Valid/Motion to Renew Based Upon Information Known at the Time of the Original Motion Properly Heard in Exercise of Discretion

The First Department determined the savings provision of General Municipal Law 50-e applied and a notice of claim which was timely served by an unauthorized method was valid.  The court noted that a motion court can exercise its discretion to hear a motion to renew which relies on information known but not raised at the time the original motion was made:

Although the motion was based on information that was available to plaintiff earlier, “courts have discretion to consider such evidence in the interest of justice” … .

Defendant moved for summary judgment on the ground that plaintiff’s notice of claim was not served within the 90-day period set forth in General Municipal Law § 50-e, and plaintiff had not timely moved for an extension of time to serve. Plaintiff contended that she qualified under either or both prongs of the “savings provision” under General Municipal Law § 50-e(3)(c), which provides that “[i]f the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant. . .be examined in regard to it, or if the notice is actually received by a proper person within the time specified by this section, and the public corporation fails to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received.”

Moreover, “[t]he purpose of a notice of claim is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence. The applicable statute should be applies flexibly so as to balance two countervailing interests: on the hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error. General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones” … .

Here, the record shows that plaintiff served a notice of claim on defendant on December 8, 2011 via regular mail, which did not comply with the requirement that service be completed in person or via registered or certified mail. However, defendant subsequently demanded that plaintiff appear for examinations pursuant to General Municipal Law § 50-h with regard to her claim. Under such circumstances, plaintiff’s service of the notice of claim is valid under the first prong of General Municipal Law § 50-e(3)(c). Person v New York City Hous. Auth., 2015 NY Slip Op 05417, 1st Dept 6-23-15

 

 

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Criteria for Liability for Acts of Independent Contractor and for Negligent Hiring of an Independent Contractor Explained (Criteria Not Met Here)

Plaintiff, who was working for the roofing contractor on a building damaged by fire, was asked by a salvager to help move a refrigerator. Plaintiff agreed and was injured while moving the refrigerator down some stairs.  The salvager was allowed to go through the building and pick out the items the salvager wanted (which included the refrigerator). Plaintiff sued the building owner (E & M). In finding the plaintiff did not have a cause of action against E & M, the First Department explained the relevant law with respect to liability for the acts of an independent contractor (the salvager) and negligent hiring of an independent contractor:

E & M established that even if it hired the salvager as an independent contractor, there is no basis to impose liability on it. “As a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work” … . Although “liability will attach where the employer is negligent in selecting, instructing or supervising the contractor, where the contractor is employed to do work that is inherently dangerous or where the employer bears a specific nondelegable duty'” …, these exceptions are inapplicable… . * * *

Plaintiff’s contention that issues of fact exist as to whether E & M or its principal were negligent in selecting the salvager, i.e. whether they failed to exercise reasonable care in ascertaining whether he was qualified to move a refrigerator down a flight of stairs, is also unavailing. “[A]n employer has the right to rely on the supposed qualifications and good character of the contractor, and is not bound to anticipate misconduct on the contractor’s part….” … . Thus, an employer “is not liable on the ground of his having employed an incompetent or otherwise unsuitable contractor unless it also appears that the employer either knew, or in the exercise of reasonable care might have ascertained, that the contractor was not properly qualified to undertake the work” … . “Cases finding employers liable for negligent hiring have done so only in very specific circumstances” … not present here. There is no competent proof that E & M knew or should have known of any propensity on the part of the salvager or his helper to engage in the conduct that allegedly caused the accident … . Furthermore, plaintiff has not shown that E & M had any reason to question the qualifications of the salvager, who E & M knew had been used by its plumber on a prior occasion, to move a refrigerator … . Moreover, there was no reason for E & M to suspect that the salvager would enlist an employee of the roofing contractor to assist him. Nelson v E&M 2710 Clarendon LLC, 2015 NY Slip Op 05391, 1st Dept 6-23-15

 

Ordinance Imposing a Duty Upon Abutting Property Owners to Keep Sidewalks in Good Repair Raised a Question of Fact whether a Defect Caused by a Tree Root Should Have Been Repaired by the Defendant—The Defect Was Not So Significant As to Allow a Determination of Defendant’s Liability as a Matter of Law

The Fourth Department determined the existence of an ordinance imposing upon abutting property owners the duty to maintain the sidewalk created a question of fact whether defendant breached that duty. Apparently the defect was caused by a root from a tree on village property which defendant alleged he had no authority to disturb. The ordinance, however did not include any exceptions to the duty to repair.  The defect was not of such significance that summary judgment on liability as a matter of law was warranted:

… “[I]t is well established that, as an abutting landowner, [defendant] is not liable for injuries sustained as the result of a defect in the sidewalk unless[, inter alia,] . . . there is a local ordinance charging [defendant] with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from [defendant’s] failure to do so” … . Here, in opposition to the motion, plaintiff submitted relevant portions of the General Code of the Village of Hamburg (Village), which charges landowners such as defendant with the duty to “repair, keep safe and maintain any sidewalk abutting [the landowner’s] premises,” and imposes liability on the landowner “for any injury or damage by reason of omission or failure to repair, keep safe, and maintain such sidewalk” (Village of Hamburg General Code § 203-26 [B]; see § 203-28 [A] [2]).

We conclude that, by submitting that local ordinance, plaintiff raised an issue of fact whether defendant breached the duty imposed on it to maintain the sidewalk abutting its property. Although defendant contends that the alleged defect in the sidewalk was created by a tree root that it had no authority to disturb because it originated from a tree on property owned and maintained by the Village, we note that the local ordinance contains no exceptions to the duty imposed on abutting landowners to maintain the sidewalk, even if the allegedly dangerous condition was created by a root extending from Village property. In any event, it cannot be said as a matter of law that defendant could not have repaired the alleged defect in the sidewalk without cutting the tree root that purportedly created it … .

We agree with defendant, however, that the court erred in granting that part of plaintiff’s cross motion for partial summary judgment on the issue of negligence against defendant, and we therefore modify the order accordingly. “Generally, a sidewalk defect presents an issue of fact for a jury . . . , unless . . . the defect is so trivial as to warrant disposition [in defendant’s favor] on summary judgment” … . Here, we cannot conclude that the alleged defect, as depicted in photographs included in the record, is of such significance that defendant may be held liable as a matter of law … . Shatzel v 152 Buffalo St., Ltd., 2015 NY Slip Op 05333, 4th Dept 6-19-15

 

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Court Properly Ordered Further Deposition of County Employee and the Deposition of the Commissioner of Public Works Based Upon Plaintiff’s Showing the Witness Previously Provided Did Not Have Sufficient Knowledge

The Fourth Department noted that the court did not abuse its discretion in ordering the further deposition of a county employee and the deposition of the Commissioner of Public Works concerning the maintenance of a section of the road where plaintiff’s-decedent’s car left the road and struck a pole.  The employee’s prior testimony was incomplete because he could not recall relevant information. And, although the county can determine who should be deposed on its behalf, the court can order the deposition of a specific witness where the plaintiff shows the witness previously produced did not have sufficient knowledge:

“A trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion” … . We note with respect to the employee that he admitted at his initial deposition that he could not recall specific details relevant to plaintiffs’ theory of the County’s liability without reviewing the documents that subsequently were produced by the County. We thus conclude that the court did not abuse its discretion in directing the further deposition of the employee concerning those documents.

We likewise conclude that the court did not abuse its discretion in directing the County to produce the Commissioner for a deposition. “Although a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition, a plaintiff may demand production of additional witnesses when (1) the officers or employees already deposed had insufficient knowledge or were otherwise inadequate, and (2) there is a substantial likelihood that the person sought for deposition possesses information which is material and necessary to the prosecution of the case” … . Here, the record establishes that the two employees previously produced by the County have at most a general understanding of the reconstruction project contemplated by the County with respect to the section of road where the accident occurred and the reasons that the reconstruction project was abandoned, while the Commissioner has peculiar and specific knowledge about that project and the decision-making process pursuant to which it was abandoned. We therefore conclude that plaintiffs met their burden of demonstrating that the employees previously produced by the County “did not possess sufficient knowledge of the relevant facts or [were] otherwise inadequate” … . Black v Athale, 2015 NY Slip Op 05355, 4th Dept 6-19-15

 

Pilot Assumed the Risk of a Take-Off from a Wet, Grass Field

The Fourth Department determined plaintiff-pilot’s complaint should have been dismissed because the pilot, injured attempting to take off from a grass field, assumed the risk associated with a take-off from a wet field.  The airport is a designated venue for the recreational activity of private aviation.  Therefore the recreational use of the airport was a qualifying activity under the doctrine of primary assumption of the risk. The pilot was aware of the wet conditions prior to his attempt to take off:

We agree with defendant that its airport is a designated venue for the recreational activity of private aviation and that plaintiff’s use thereof was in furtherance of his pursuit of that activity … . We thus conclude, as defendant contends, that plaintiff’s recreational use of defendant’s airport was a qualifying activity under the doctrine of primary assumption of the risk … . Primary assumption of the risk applies when a consenting participant in a qualified activity “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” …  . “[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 primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions… . “It is not necessary to the application of assumption of [the] 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” … .

Here, the undisputed facts establish that plaintiff, an experienced pilot, was well aware of the risk inherent in taking off from a soft, wet grass runway with the type of landing gear with which his aircraft was equipped. Plaintiff’s awareness of the risk was amply established by his admitted preflight concern about the condition of the grass runway, and by his personal inspection thereof generated in part by his encounter with wet and muddy conditions while towing his aircraft to the runway by motor vehicle. Bouck v Skaneateles Aerodrome, LLC, 2015 NY Slip Op 05300, 4th Dept 6-19-15

 

Defendant Sky-Diving Instructor’s Duty of Care (Re: Training) Did Not Extend to the Unforeseeable Conduct Which Resulted In the Plane Crash

Plaintiff was injured in a plane crash which occurred as the pilot was attempting to pull a skydiver back into the plane.  The hatch door opened unexpectedly on take-off and a skydiver, against the pilot’s instructions, stood up and attempted to pull the door closed. Plaintiff had completed a one-hour skydiving course offered by defendant prior to the flight.  Plaintiff alleged that defendant breached his duty to provide proper training for the pilot, instructors and other skydivers. The court determined defendant owed no duty of care to the plaintiff with respect to the unforeseeable conduct which occurred on the plane:

“The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors” … . In making such a determination, “the courts look to whether the relationship of the parties is such as to give rise to a duty of care . . . , whether the plaintiff was within the zone of foreseeable harm . . . and whether the accident was within the reasonably foreseeable risks” … . “[T]he law draws a line between remote possibilities and those that are reasonably foreseeable because [n]o person can be expected to guard against harm from events which are . . . so unlikely to occur that the risk . . . would commonly be disregarded’ ” … .

We conclude that defendant established as a matter of law that the plane crash at issue was not a reasonably foreseeable consequence of defendant’s alleged failure to provide adequate training. Although the risk may now readily be perceived with the benefit of hindsight, we conclude that the plane crash due to the hatch door opening and the response of the pro-rated skydiver was not “within the class of foreseeable hazards” associated with defendant’s alleged failure to provide proper training … . We thus conclude that defendant had “no cognizable legal duty to protect [plaintiff] against the injury-producing occurrence” …. . Tiede v Frontier Skydivers, Inc., 2015 NY Slip Op 05311, 4th Dept 6-19-15

 

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Construction at County Airport Was a Governmental Function—County is Therefore “Immune” from a Suit Alleging the Construction Caused a Highway White-Out Condition Which Resulted in Plaintiff’s-Decedent’s Death in a Collision

Plaintiffs alleged that construction by the defendant-county caused snow to blow across the highway leading to the “white-out” which resulted in plaintiff’s decedent’s death in a collision. The Fourth Department determined the county was immune from suit because the relevant construction was a governmental, not proprietary function, and the county did not owe a special duty to the plaintiffs:

… “[I]f the [municipal defendant] acted in a proprietary role, i.e., when its activities essentially substitute for or supplement traditionally private enterprises . . . , ordinary rules of negligence apply. If, however, the [defendant] acted in a governmental capacity, i.e., when its acts are undertaken for the protection and safety of the public pursuant to general police powers . . . , the court must undertake a separate inquiry to determine whether the [defendant] owes a special duty to the injured party. In the event that the plaintiff fails to prove such a duty, the [defendant] is insulated from liability” … . A municipal defendant can therefore establish entitlement to judgment as a matter of law by showing that its allegedly negligent acts were undertaken in a governmental rather than a proprietary capacity, and that it did not owe the plaintiff a special duty.

We conclude that defendants established on their motion that the construction of the tunnels and retaining wall was undertaken in a governmental capacity … , inasmuch as the construction was the result of defendants’ discretionary decision-making after defendants consulted with experts to determine how to make improvements to the Airport property in compliance with, inter alia, safety regulations of the Federal Aviation Administration … . We further conclude that plaintiffs failed to raise a triable issue of fact whether defendants owed a special duty to plaintiffs or were acting in a proprietary capacity … . Klepanchuk v County of Monroe, 2015 NY Slip Op 05323, 4th Dept 6-19-15

 

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Only an “Unexcused” Violation of a Provision of the Vehicle and Traffic Law Constitutes Negligence Per Se—Damages May Include Cost of Demolition of a Building Which Has Been Deemed a Safety Hazard

In the course of a decision finding questions of fact precluded summary judgment, the Fourth Department explained the doctrine of negligence per se as it relates to a violation of the Vehicle and Traffic Law, and the recoverable damages when property damage requires demolition of a building which was rendered a safety hazard.  The defendant-driver here struck plaintiff’s building which was then destroyed by fire.  The cost of demolition, which the town had ordered because the building was a safety hazard, exceeded the fair market value of the building prior to the accident. The court noted that the demolition costs could be recoverable damages. The court further noted that only the “unexcused” violation of the Vehicle and Traffic Law constitutes negligence per se.  Therefore the defendant’s guilty plea to a Vehicle and Traffic Law violation could be excused by the jury if the jury determined the driver acted to avoid an object in the road. In that situation, the violation would only constitute “some evidence” of negligence:

It is well settled that “the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se” … . Rather, it is the “unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se” … . If a trier of fact accepts as true the position that the driver swerved to avoid an object in the road, the jury may excuse the driver’s alleged negligence, in which case defendant would not have any vicarious liability for the accident … . * * *

It is well settled that the standard for assessing damages to property is the lesser of replacement cost or diminution in market value … . Here, it is undisputed that the cost of the required demolition exceeds the fair market value of the property before the accident. Defendant contends that plaintiffs’ damages are limited to the market value of the property before the accident, with no consideration of demolition costs, inasmuch as the full market value of the property before the accident is less than the repair or replacement cost. We agree with plaintiffs, however, that demolition costs are recoverable where the property to be demolished constitutes a “safety hazard beyond repair” … . There are also situations in which a property may be deemed to have a negative market value, i.e., where the cost to remediate the property exceeds the market value of the property … . Shaw v Rosha Enters., Inc., 2015 NY Slip Op 05305, 4th Dept 6-19-15

 

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