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In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence of a Theory of Liability Not Explicitly Referenced in the Complaint and Bill of Particulars

The Third Department determined evidence of a theory of liability that was not explicitly included in the pleadings and bill of particulars was not error. The theory was implicit in the pleadings and the defendants could not have been surprised by the related evidence. The court noted it would have been better had the plaintiffs moved to conform the pleadings to the evidence:

Generally, a party is limited to presenting evidence at trial that supports a cause of action or theory of recovery that was either pleaded in the complaint or asserted in the bill of particulars … . However, evidence concerning a specific theory or injury not mentioned in the bill of particulars may nonetheless avoid exclusion where such proof necessarily flows from the information conveyed in the pleadings and where the defendants should have been aware of the basis thereof… .

The contested theory of liability in this case is based on the allegedly erroneous interpretation of plaintiff’s February CT scan by Beatty (hereinafter referred to as the Beatty theory). It is worth noting that, because the complaint and bills of particulars do not contain an express articulation of the Beatty theory, the better practice certainly would have been for plaintiff to seek leave to amend his pleadings in advance of trial or at least have moved to conform the pleadings to the proof after the trial was underway. However, we nonetheless find that Supreme Court’s determinations allowing plaintiff to advance the Beatty theory at trial, including permitting plaintiff’s expert to offer testimony on the theory, do not constitute reversible error. In our view, the complaint— * * * which reference[s] the February CT scan as a basis for a departure from accepted medical practice — [was] sufficient to notify defendants of the Beatty theory and, as such, permit that theory of liability to be advanced at trial without prejudice. Simply put, we are unpersuaded by defendants’ position that they were not aware of the Beatty theory as a basis for a potential finding of medical malpractice. Boyer v Kamthan, 2015 NY Slip Op 05983, 3rd Dept 7-9-15

 

Defendant Should Have Been Awarded Summary Judgment in Rear-End Collision Case—Fact that Defendant’s Vehicle Was Double-Parked Was Not the Cause of the Accident

Reversing Supreme Court, the First Department determined the fact that defendant’s (Pepsi’s) vehicle was double-parked did not warrant denial of defendant’s summary judgment motion. The fact that the vehicle was double-parked was merely the condition or occasion for the occurrence of the accident, not the cause. Plaintiff’s claim that sunlight temporarily blinded him did not constitute a nonnegligent explanation for his striking the rear of the Pepsi vehicle:

In this rear-end collision case, even assuming that the Pepsi vehicle, hit from behind, was illegally double-parked, that fact, standing alone “does not automatically establish that such double-parking was the proximate cause of the accident” … . Here, the record shows that the double-parked vehicle, given the road conditions at the time of the accident, namely, the favorable weather, the time of day, and the relatively minimal amount of traffic on the road at the time, “merely furnished the condition or occasion for the occurrence of the event but was not one of its causes” … . Plaintiff’s proffered excuse for the accident, that sunlight temporary blinded the driver of the rear vehicle, does not constitute a nonnegligent explanation for the rear-end collision … . Barry v Pepsi-Cola Bottling Co. of N.Y., Inc., 2015 NY Slip Op 06034, 1st Dept 7-9-15

 

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Although the Elevator Maintenance Company May Have Been Negligent, Under “Espinal,” the Company Did Not Owe a Duty of Care to the Plaintiff—There Was No Evidence the Maintenance Company “Launched an Instrument of Harm,” the Only Available Theory of Liability (Re: Plaintiff) Which Could Have Arisen from the Maintenance Contract

The First Department, in a full-fledged opinion by Justice Saxe, determined an elevator maintenance company (The Elevator Man) did not owe a duty of care to the plaintiff who was injured when the elevator free-fell three stories in September 2010. The maintenance contract with the elevator maintenance company had been cancelled for non-payment, but the company had subsequently agreed to do, and had done, emergency repairs when called to do so. Although there was evidence the elevator maintenance company was negligent re: repairs done in early 2010, applying the “Espinal” criteria, the First Department held there was no evidence the maintenance company “launched an instrument of harm,” the only available theory of liability:

If the issue were limited to whether The Elevator Man was negligent, a question of fact would preclude summary judgment. However, the issue is not that simple.

“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]).

Where a contractor has entered into a contract to render services, it may only be held to have assumed a duty of care to nonparties to the contract in three situations:

“(1) where the contracting party, in failing to exercise reasonable care in the performance of his 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” (Espinal, 98 NY2d at 140 [internal citations omitted]).

To the extent plaintiff relies on the inspection performed by The Elevator Man on January 14, 2010 in which it gave the elevator a “Satisfactory” rating, despite a “Cease Use” violation that had been issued on November 1, 2009, The Elevator Man was subject to the maintenance contract then in effect. To the extent plaintiff argues that The Elevator Man was negligent in the work it performed on May 26, 2010, any duty The Elevator Man had toward him could not be based on the terminated 2009 maintenance agreement; nevertheless, The Elevator Man continued to be subject to a more limited contract with the manager of the parking facility, in which it agreed to respond to emergency calls, upon payment of an agreed fee.

We find the rule set forth in Espinal to apply here. It is conceded that of the three possibilities listed in Espinal, only the first could provide a basis for liability to plaintiff: “where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm'” (id. at 140). However, even accepting for purposes of this analysis that The Elevator Man negligently inspected the elevator on January 14, 2010 and negligently failed to correctly assess the condition of the elevator and necessary repair on May 26, 2010, it cannot be said to have launched a force or instrument of harm. That is, in failing to correctly inspect or repair the elevator, it did not create or exacerbate an unsafe condition. Medinas v MILT Holdings LLC, 2015 NY Slip Op 06044, 1st Dept 7-9-15

 

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Absence of a Safety Device Which Would Reduce the Functionality of a Table Saw is Not a Design Defect–Criteria Explained

The Second Department determined summary judgment should have been granted as a matter of law to the manufacturer of a table saw. Plaintiff alleged the absence of an interlock device which would not allow the saw to operate without a protective guard in place was a design defect.  However, it is settled that such an interlock device on a table saw renders the saw unusable for some cuts and, therefore, the absence of the device is not a design defect:

The definition of a design defect, for purposes of imposing products liability, is that “if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” … . “This standard demands an inquiry into such factors as (1) the product’s utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product’s potential danger that can reasonablely be attributed to the injured user, and (7) the manufacturer’s ability to spread the cost of any safety-related design changes” … . Liability attaches when an analysis of these factors leads one to conclude that “the utility of the product did not outweigh the risk inherent in marketing” it … .

An interlock on a table saw, which would prevent the operation of the table saw without the guard in place, could make the table saw unusable for certain cuts, thereby impairing its functionality … . Therefore, a theory of liability based upon an allegation that a table saw should have been designed with an interlock has been “explicitly rejected as a matter of law” … . Chavez v Delta Intl. Mach. Corp., 2015 NY Slip Op 05903, 2nd Dept 7-8-15

 

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Electricity-Supplier (Con Edison) Did Not Owe a Duty of Care to a Shareholder in an Apartment Cooperative Who Fell in a Common Area During a Power Outage/Plaintiff’s Lack of Knowledge of the Cause of His Fall Was Fatal to the Lawsuit

The Second Department determined the electricity-supplier, Con Edison, did not owe a duty of care to plaintiff, a shareholder in an apartment cooperative, who fell in a common area of the building during a power outage. In addition, the plaintiff’s lack of knowledge re: the cause of his fall was fatal to the lawsuit:

The Court of Appeals has held that an electricity-supplying utility “is not answerable to the tenant of an apartment building injured in a common area as a result of [the utility’s] negligent failure to provide electric service as required by its agreement with the building owner” (Strauss v Belle Realty Co., 65 NY2d 399, 405; see Milliken & Co. v Consolidated Edison Co. of N.Y., 84 NY2d 469). Contrary to the plaintiffs’ contention, the injured plaintiff’s status as a shareholder in the cooperative corporation that owned the building did not make him a party to the contract with Con Edison, such that Con Edison owed him a duty of care… . * * *

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Here, the injured plaintiff testified at his deposition that he did not know why he fell, did not know whether he tripped or slipped, and had no memory of the fall. When he was asked if he knew why he fell, the injured plaintiff testified: “That’s speculation. I don’t know.” In addition, the building defendants submitted the deposition testimony of two witnesses who stated that the injured plaintiff appeared to be intoxicated at the time of the accident. Thus, the building defendants demonstrated that it was just as likely that the accident was caused by some factor other than poor lighting conditions in the stairwell, such as a misstep, a loss of balance, or intoxication, and thus “any determination by the trier of fact as to causation would be based upon sheer conjecture” … . O’Connor v Metro Mgt. Dev., Inc., 2015 NY Slip Op 05921, 2nd Dept 7-8-15

 

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Criteria for Negligent Care of a Child by a Nonparent Explained—Effect on Proof Requirements of Amnesia Suffered by the Injured Party Noted

In concluding summary judgment dismissing the complaint was proper, the Second Department explained the criteria for negligent care of a child by a nonparent and noted the effect of amnesia suffered by the injured party on the plaintiff’s proof requirements:

“A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control. Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so” … . Here, in support of her motion for summary judgment, the defendant Joanne Williams submitted evidence sufficient to establish, prima facie, that under the circumstances, she adequately supervised the infant plaintiff … .

In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs contend that the infant plaintiff suffered from amnesia as a result of the subject accident and, thus, they are not held to as high of a degree of proof …, the plaintiffs are not relieved of the obligation to provide some proof from which negligence can reasonably be inferred … . Alotta v Diaz, 2015 NY Slip Op 05899, 2nd Dept 7-8-15

 

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Circumstantial Evidence Raised Question of Fact About Whether Respondents Were Responsible for the Placement of an Object Which Fell and Injured Plaintiff

The Second Department determined summary judgment in favor of the respondents should not have been granted.  Plaintiffs had raised a question of fact by producing circumstantial evidence that the respondents, not New York City Transit Authority (NYCTA) employees, were responsible for the placement of a “shoe paddle” in a subway car which fell and injured plaintiff. The court explained the criteria for circumstantial evidence in this context:

“To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'” … . “The law does not require that plaintiff’s proof positively exclude every other possible cause of the accident but defendant’s negligence” … . “Rather, [the plaintiff’s] proof must render those other causes sufficiently remote’ or technical’ to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . “A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant’s negligence than by some other agency” … .

Here, the respondents established their prima facie entitlement to judgment as a matter of law by proffering the testimony of two of their employees denying that they placed the shoe paddle in the subject door. In opposition, the plaintiffs raised a triable issue of fact by submitting the testimony from NYCTA employees, including the testimony of the cleaner of the subject train, that no NYCTA employee placed the shoe paddle in the door, and that the respondents were the only contractors present at the site during the relevant time period. The plaintiffs also submitted NYCTA records showing that as of 11:40 p.m., about three hours prior to the incident, all shoe paddles were in their holders and all doors were free and moving properly. Thus, the plaintiffs raised a triable issue of fact as to whether this circumstantial evidence gives rise to a rational inference that it was more likely or more reasonable that an employee of the respondents placed the shoe paddle in the subject door than an NYCTA employee … . Hernandez v Alstom Transp., Inc., 2015 NY Slip Op 05911, 2nd Dept 7-8-15

 

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Questions of Fact About Defendant’s Actual or Constructive Notice of Liquid on Floor—Question of Fact Whether Contract Food Service Launched and Instrument of Harm Such that the Food Service Contract Gave Rise to Tort Liability to Plaintiff

The First Department determined summary judgment should not have been granted to the defendants in a slip and fall case. The complaint alleged that there was liquid on the floor of a women’s homeless shelter operated by defendant Camba.  The complaint further alleged that plaintiff frequently observed liquid on the floor after defendant food service, Whitson’s, delivered prepared food. Plaintiff also alleged she had complained about the condition to Camba’s maintenance staff. The First Department found the affidavit of Camba’s employee did not demonstrate the absence of actual or constructive notice (no evidence of the cleaning schedule was presented).  The First Department also found there was a question of fact whether Whitson’s launched an instrument of harm, which would support tort liability for plaintiff’s fall arising from Whitson’s food service contract with Camba:

Camba failed to make a prima facie showing that it lacked constructive notice of the liquid on the floor. Although Camba’s employee testified that she completed her inspection of the building about an hour before the accident, and that it was her usual custom and practice to pass by the area where plaintiff claims she fell, she could not recall whether she inspected the accident location itself that afternoon when she made her rounds … . Her affidavit stating that she did not observe a slippery substance or liquid on the hallway floor during her daily rounds did not satisfy Camba’s burden of showing it had no actual or constructive notice of the dangerous condition alleged and that it did not exist for a sufficient length of time prior to the accident to permit Camba employees to discover and remedy it … . Camba also failed to present evidence regarding the shelter’s cleaning schedule, and Camba’s employee lacked personal knowledge regarding the shelter’s maintenance … .

Even if Camba had met its initial burden, the record shows that there exists a question of fact as to whether it had notice of a recurring condition. Plaintiff’s testimony that she frequently would see liquid leaking from Whitson’s Food’s delivery crates at the accident location, and that she complained to Camba’s maintenance staff about the liquid, is sufficient to raise a triable issue of fact as to a recurring condition … .

Whitson’s Food, which had a contract with Camba to provide cooked meals for the shelter, failed to make a prima facie showing that it did not launch a force or instrument of harm by dropping liquid on the floor when it delivered food to the shelter on the day of the accident … . The deposition testimony from an employee of Whitson’s Food was insufficient to show that Whitson’s Food did not cause or create the liquid condition, since he lacked personal knowledge as to whether the floor was clean after Whitson’s Food delivered the food … . Jackson v Whitson’s Food Corp., 2015 NY Slip Op 05889, 1st Dept 7-7-15

 

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Individual Condominium Owners Are Not Responsible for Conditions in the Common Elements of the Condominium, Which Are Under the Control of the Board of Managers—In a Case Stemming from a Slip and Fall in a Vestibule (a Common Element) the Individual Owners’ Motions for Summary Judgment Were Properly Granted

Plaintiff slipped and fell in a vestibule, one of the common elements of a condominium.  The common elements of a condominium are under the control of the board of managers, not the individual condominium owners.  Therefore the condominium owners’ motions for summary judgment were properly granted:

As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property … . “[C]ondominium common elements are solely under the control of the board of managers” … . Here, the defendants, moving separately, each established their prima facie entitlement to judgment as a matter of law by demonstrating that as individual unit owners of the condominium, they had no duty to maintain the vestibule where the accident occurred, as it was one of the condominium’s common elements … . In opposition, the plaintiff failed to raise a triable issue of fact as to, inter alia, whether the defendants created the alleged wet condition that caused the plaintiff to slip and fall … . O’Toole v Vollmer, 2015 NY Slip Op 05655, 2nd Dept 7-1-15

 

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Question of Fact Whether Out-of-Possession Landlord Relinquished Control of the Premises to the Extent that Its Duty to Maintain the Premises in a Reasonably Safe Condition Was Extinguished—Lease Allowed Landlord to Reenter to Inspect and Make Repairs and Improvements

The Second Department determined there were questions of fact whether an out-of-possession landlord (Marphil Realty) was liable for a dangerous condition (resulting in a fire). The lease gave the landlord the right to reenter during usual business hours in order to inspect the premises and to make repairs and improvements. Therefore there was a question of fact whether the landlord had relinquished complete control over the property such that its duty to maintain the property in a reasonably safe condition was extinguished:

“Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . “That duty is premised on the landowner’s exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others'” … . Accordingly, “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . However, an out-of-possession landlord may be liable for injuries occurring on the premises if “it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs” … . Yehia v Marphil Realty Corp., 2015 NY Slip Op 05670, 2nd Dept 7-1-15

 

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