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Patient’s Suicide Was Not a Foreseeable Consequence of Doctor’s Alleged Failure to Properly Diagnose and Treat Patient’s Abdominal Pain

The Third Department affirmed summary judgment granted to defendant doctor (Skezas).  Plaintiff alleged the doctor failed to properly diagnose and/or treat plaintiff’s decedent’s abdominal pain. Decedent was told by the doctor he may have cancer, which, if not treated, could be fatal within 6 to 12 months. The doctor set up an appointment for plaintiff’s decedent with a specialist.  Before seeing the specialist, plaintiff’s decedent committed suicide. The Third Department determined plaintiff’s decedent’s suicide was not a foreseeable consequence of the actions ascribed to the doctor:

“An intervening act will be deemed a superseding cause and will serve to relieve [a] defendant of liability when the act is of such an extraordinary nature or so attenuates [the] defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” … . Applying this rule to a person’s intentional act of taking his or her own life, negligent conduct can only support liability for another person’s suicide under certain circumstances and where suicide is a foreseeable consequence of such conduct … . Here, Skezas did not practice psychiatry, decedent was not confined to Skezas’ care and Skezas did not advise decedent to commit suicide. The possibility that decedent would choose to take his own life in the absence of any actual terminal cancer diagnosis and rather than taking advantage of the second medical opinion — regarding a diagnosis and/or pain management — from the specialist that Skezas had secured for decedent is not a foreseeable consequence of the alleged negligent acts … . Stein v Kendal At Ithaca, 2015 NY Slip Op 05246, 3rd Dept 6-18-15

 

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Indemnification Clause in Lease/Alteration Agreements Unenforceable—No Exception for Lessor’s Negligence

The Second Department determined an indemnification clause in lease/alteration agreements was unenforceable because it was not limited to the lessee’s acts or omissions and because it did not make exceptions for the lessor’s negligence (General Obligations Law 5-321):

Broad indemnification provisions … which are not limited to the lessee’s acts or omissions, and which fail to make exceptions for the lessor’s own negligence, are unenforceable pursuant to General Obligations Law § 5-321 where [the relevant agreements] were not negotiated at arm’s length by two sophisticated business entities… . Nolasco v Soho Plaza Corp., 2015 NY Slip Op 05164, 2nd Dept 6-17-15

 

Liability for a Defective or Dangerous Condition on Real Property Must Be Predicated Upon Ownership, Occupancy, Control, or Special Use of the Property—Here Defendant Demonstrated None of Those Factors Applied

The Second Department, finding that defendant’s motion for summary judgment in a slip and fall case was properly granted, noted that in order for a defendant to be liable for a dangerous or defective condition on real property the liability must be predicated “upon ownership, occupancy, control, or special use of that property …”.  Here no such factors were demonstrated (defendant denied the allegation that it acted as the property manager).  Reynolds v Avon Grove Props., 2015 NY Slip Op 05169, 2nd Dept 6-17-15

 

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Motion to Compel Plaintiff to Submit to a Psychological Test Should Have Been Granted—Plaintiff Placed Her Mental Condition In Issue and Did Not Demonstrate the Test Was Invasive or Harmful

Reversing Supreme Court, the Second Department determined the defendants’ motion to compel plaintiff to submit to the administration of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) should have been granted.  Plaintiff amended the bill of particulars to allege she suffered from post-traumatic stress disorder (stemming from the underlying car accident). Plaintiff placed her mental condition in issue, and there was no showing the MMPI-2 would be invasive or harmful:

Where the mental or physical condition of a party is in controversy, the party may be required to submit to a medical examination … . However, a plaintiff who places his or her physical or mental condition in controversy will not be required to undergo an examination or objective testing procedure which is invasive, painful, or presents the possibility of danger to life or health … .

Here, it is undisputed that the plaintiff’s mental condition was put into controversy by her service of the bill of particulars denominated a second supplemental bill of particulars, in which she alleged that she has post-traumatic stress disorder that was caused by the accident. In support of their motion, the defendants established, through the affidavit of a psychologist, that the MMPI-2 is a conventionally accepted noninvasive test utilized for the assessment of a diagnosis of post-traumatic stress disorder.

In opposition, the plaintiff failed to establish that subjecting herself to the MMPI-2 would be invasive or harmful to her health … . Peculic v Sawicki, 2015 NY Slip Op 05168, 2nd Dept 6-17-15

 

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Signed Consent Form Precluded Cause of Action for Assault and Battery (Re: a Hysterectomy)—Defendant Demonstrated the Allegation Plaintiff Did Not Consent to the Hysterectomy Was “Not a Fact At All”–Question of Fact Raised Re: the “Lack of Informed Consent” Cause of Action

The Second Department, over a partial concurrence/dissent, determined defendant was entitled to dismissal of the assault and battery cause of action, which was based on the allegation a hysterectomy was performed without plaintiff’s consent.  The evidence however demonstrated plaintiff signed a consent form, and thereby demonstrated that the “without consent” factual allegation was “not a fact at all.”  Plaintiff did, however raise a question of fact concerning the “lack of informed consent” cause of action. The court explained the elements of assault and battery in this context, the elements of a “lack of informed consent” cause of action, as well as how to handle a motion to dismiss for failure to state a cause of action which is accompanied by evidentiary submissions:

“When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one . . . [The motion] must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” … .

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact'” … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . Here, the evidence in the record upon which the Supreme Court relied established that “a material fact as claimed by the plaintiff” was “not a fact at all” … . Notwithstanding the plaintiff’s allegations and testimony that she never gave permission for the performance of a hysterectomy, the signed consent form clearly authorized such a procedure, and she admitted that she signed the consent form. Therefore, dismissal of the assault and battery cause of action was proper … .

“To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff’s position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3])…). Here the plaintiff’s deposition testimony indicates that she was not fully advised of the risks, benefits, and alternatives to the procedure or treatment, including the fact that one of the risks was a total hysterectomy and/or perforation of the bowel, nor was it established as a matter of law that if the plaintiff received full disclosure, she still would have consented to the procedure. Since the defendants’ submissions included the plaintiff’s deposition testimony, they failed to establish, prima facie, that there were no triable issues of fact with respect to the cause of action alleging lack of informed consent … . Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging lack of informed consent. Thaw v North Shore Univ. Hosp., 2015 NY Slip Op 05173, 2nd Dept 6-17-15

 

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Negligence and Proximate Cause Inextricably Interwoven—Verdict Finding that Defendant Was Negligent but Such Negligence Was Not the Proximate Cause of Plaintiff’s Injury Properly Set Aside as Against the Weight of the Evidence

The plaintiff-student was sexually assaulted at school.  The jury found the school was negligent in its supervision of its students, but that the negligence was not the proximate cause of plaintiff’s injury.  The Second Department determined the verdict was properly set aside as against the weight of the evidence.  The issues of negligence and proximate cause were inextricably interwoven, such that finding the negligence was not the proximate cause of injury was against the weight of the evidence:

“A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . ” A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'” … .

Under the circumstances of this case, the issues of negligence and proximate cause were inextricably interwoven, such that the jury’s finding that the defendants were negligent, but that their negligence was not a substantial factor in causing the infant plaintiff’s injuries, was contrary to the weight of the evidence … . Victoria H. v Board of Educ. of City of N.Y., 2015 NY Slip Op 05156, 2nd Dept 6-17-15

 

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Causes of Action Against City Alleging Negligence In Responding to a 911 Call and In Preparing for and Responding to a Snow Storm Which Blocked Roads Should Have Been Dismissed—Only Governmental Functions Were Involved and there Was No Special Relationship between the City and Plaintiffs’ Decedent

The Second Department determined the complaint against the city should have been dismissed under the doctrine of governmental immunity.  Plaintiffs alleged the city was negligent in responding to a 911 call for an ambulance and was negligent in preparing for and responding to a snow storm (which blocked roads). Because the relevant acts or omissions related to government functions, and because no special relationship existed between the city and plaintiffs’ decedent, the city was immune from suit. The Second Department provided a good explanation of the relevant law:

As a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services” … . When a negligence cause of action is asserted against a municipality, and the municipality’s conduct is proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties … . If it is determined that a municipality was exercising a governmental function, the municipality may not be held liable unless it owed a special duty to the injured party … . “A special duty’ is a duty to exercise reasonable care toward the plaintiff,’ and is born of a special relationship between the plaintiff and the governmental entity'” … . Insofar as relevant here, to establish a special relationship against a municipality which was exercising a governmental function, a plaintiff must show: “(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” … . * * *

A municipal emergency response system is a classic governmental, rather than proprietary, function … . Contrary to the plaintiffs’ contentions, the complaint fails to allege any facts tending to show knowledge by the defendants that inaction would lead to harm, or that there was any justifiable reliance on any promise made by the defendants. Accordingly, the complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the 911 call … .

Furthermore, the Supreme Court improperly denied that branch of the defendants’ motion which was to dismiss the cause of action alleging that the defendants failed to prepare for, and respond to, the snowstorm. A municipality is obligated to maintain the streets and highways within its jurisdiction in a reasonably safe condition for travel … . A municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers … . Under the circumstances presented here, the defendants’ snow removal operation on the public streets was a traditionally governmental function, rather than a proprietary function … . Moreover, the plaintiffs failed to sufficiently allege in their complaint the existence of a special relationship between the decedent and the defendants as to the defendants’ snow removal function … . Cockburn v City of New York, 2015 NY Slip Op 05146, 2nd Dept 6-17-15

 

Sole Proximate Cause of Plaintiffs’ Injuries Should Have Been Determined as a Matter of Law—Complaint Against Non-Negligent Driver (Whose Car Was Pushed into the Pedestrian-Plaintiffs by the Negligent-Driver’s Car) Should Have Been Dismissed

Reversing Supreme Court, the Second Department found that the proximate cause of the accident should have been determined as a matter of law and the complaint against the non-negligent driver should have been dismissed.  The negligent driver violated the Vehicle and Traffic Law by attempting to make a left turn and crossing the lane in which the non-negligent driver was travelling.  The non-negligent driver ‘s car collided with negligent driver’s car and then struck plaintiffs (pedestrians).  Here it was clear that the negligent-driver’s actions were the sole proximate of the plaintiffs’ injury as a matter of law:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “There can be more than one proximate cause of an accident” …, and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … . Velez v Mandato, 2015 NY Slip Op 05174, 2nd Dept 6-17-15

 

Question of Fact About Sequence of Rear-End Collisions Precluded Summary Judgment

The Second Department determined a question of fact had been raised about whether the middle driver in a three-car rear-end collision was negligent. Although the middle-car driver alleged she was struck from behind and pushed into the lead car, the third-car driver alleged the middle car struck the lead car before he struck the middle car:

Supreme Court erred in granting the motions of the plaintiff [lead car driver] and [the middle-car driver] for summary judgment. Based on the plaintiff’s account of the accident, those movants established, prima facie, their freedom from comparative fault and that [third-car driver] was negligent based on the presumption of negligence that arises from a rear-end collision with a stopped or stopping vehicle … . However, [third-car driver’s] affidavit, which recited that his vehicle only struck the [middle] vehicle after the [middle] vehicle had already collided with the lead vehicle, raised triable issues of fact as to the sequence of the collisions, whether [the middle-car driver] was at fault, and the proximate cause of the plaintiff’s alleged injuries …. . Gavrilova v Stark, 2015 NY Slip Op 05153, 2nd Dept 6-17-15

 

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Question of Fact Whether Failure to Provide Personal Ropes to Firefighters Gave Rise to a Claim Under General Municipal Law 205-a and Labor Law 27-a

The First Department, recalling and vacating its decision and order dated March 3, 2015, determined the defendants’ motion for summary judgment dismissing the plaintiff-firefighter’s action based upon General Municipal Law 205-a and Labor Law 27-a was properly denied. The action alleged the city failed to provide firefighters with personal ropes and, as a result, firefighters were forced to jump from windows without ropes (resulting in injury and death). Labor Law 27-a requires employers to provide a place of employment free from recognized hazards. A question of fact was raised whether the failure to issue personal ropes resulted from the city’s discretionary decision-making, and therefore is not subject to government-function immunity:

The motion court properly declined to dismiss the portion of plaintiffs’ General Municipal Law (GML) § 205-a claims predicated on an alleged violation of Labor Law § 27-a(3)(a)(1). The City unavailingly contends that Labor Law § 27-a(3)(a)(1) cannot provide a valid predicate for any General Municipal Law § 205-a claim. However, the statute, known as the Public Employee Safety and Health Act (PESHA), which imposes a general duty on an employer to provide employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees” (Labor Law § 27-a[3][a][1]), is sufficient since it is “a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Moreover, the City failed to “show that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff’s injuries” … . There is evidence, including testimony and an investigative report, that the failure to issue personal ropes to the firefighters contributed to the injuries and deaths suffered when the firefighters jumped from windows using either no safety devices or a single rope that had been independently purchased by one of the firefighters. The City is also not entitled to dismissal of these claims pursuant to governmental function immunity, since the evidence concerning the removal of existing personal ropes in 2000, and the failure to provide new ropes in the period of more than four years from then until the fire giving rise to these claims, raises issues of fact concerning whether the absence of ropes “actually resulted from discretionary decision-making — i.e., the exercise of reasoned judgment which could typically produce different acceptable results” … . Stolowski v 234 E. 178th St. LLC, 2015 NY Slip Op 05099, 1st Dept 6-16-15

 

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