You are here: / Negligence
, ,

Corporate Officer May Be Personally Liable for Torts Committed in the Performance of Corporate Duties/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Is Submitted) Explained

The Second Department determined defendant’s motion to dismiss for failure to state a cause of action was properly denied.  Plaintiff alleged he tripped and fell over a hole left when a for sale sign was removed. The defendant moved to dismiss alleging the property was owned by the corporation of which defendant was the sole shareholder.  The Second Department noted that an officer of a corporation may be personally liable for torts committed in the performance of corporate duties. The court explained its role in determining a motion to dismiss for failure to state a cause of action where documentary evidence is submitted: “When a defendant submits evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one … . “[U]nless 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, . . . dismissal should not eventuate… ‘. [quotations omitted] Orlando v New York Homes By J & J Corp., 2015 NY Slip Op 04104, 2nd Dept 5-13-15

 

Question of Fact Whether Property Owners Owed a Duty to Protect Plaintiff from an Assault During a Fair on the Premises

he Second Department determined there was a question of fact whether the defendants, who held a fair on their premises, were liable to plaintiff who was attacked by two teenage boys during the fair. There was evidence a security guard had been notified that a fight was about to break out and did nothing:

“While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” … . Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults … .

Here, the church defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the infant plaintiff’s injuries resulted from an unexpected and unforeseeable assault … . However, in opposition, the plaintiffs raised a triable issue of fact as to whether the assault of the infant plaintiff was unexpected and unforeseeable. The plaintiffs presented a transcript of the deposition testimony of the infant plaintiff’s girlfriend, who explained that, approximately 30 minutes before the subject incident, she spoke to a security guard at the fair and advised him that there was a “confrontation” and that it was “getting worse.” Bisignano v Raabe, 2015 NY Slip Op 04081, 2nd Dept 5-13-15

 

, ,

Criteria for Setting Aside a Verdict as Against the Weight of the Evidence Explained

The Second Department determined plaintiff’s motion to set aside the defense verdict as against the weight of the evidence was properly denied.  Plaintiff, a bicyclist, was injured when he struck the open door of defendant’s (Roche’s) vehicle.  Defendant testified the door was ajar, not fully open: “A jury verdict should be set aside as contrary to the weight of the evidence only if 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 … . [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view… . However, where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, because the only reasonable view of the evidence is that a defendant’s negligence was a proximate cause of the plaintiff’s injuries, that verdict must be set aside as contrary to the weight of the evidence … . In this case, it was within the jury’s province to credit Roche’s testimony that she did not open her car door into the plaintiff’s path. The jury reasonably could have concluded that Roche was negligent in some other respect—such as the positioning of her car or her act of leaving the door “slightly ajar”—but that, despite such negligence, the plaintiff should have been able to avoid the collision and, thus, his conduct was the sole proximate cause of the accident.” [quotations omitted] Membreno v Roche, 2015 NY Slip Op 04102, 2nd Dept 5-13-15

 

,

In Order for a Municipality to Be Liable for the Creation of a Dangerous Condition, the Dangerous Condition Must Result Immediately from the Negligent Act—Here the Allegation the Dangerous Condition Developed Over a Period of Years Was Not Sufficient

The Second Department noted that the “prior written notice” requirement (as a prerequisite for municipal liability for a dangerous condition) is independent of any actual or constructive notice of a defect.  Although there is an exception to the “prior written notice” requirement where the municipality created the defect through an affirmative act of negligence, that act of negligence must immediately result in the existence of a dangerous condition. It is not sufficient to allege that the defect developed over a period of years (here allegedly stemming from work done in 2008):

“A municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice” … . A defendant’s actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement … . Further, although an exception to the prior written notice requirement exists where the municipality created the defect through an affirmative act of negligence …, that exception “[is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition”… . DeVita v Town of Brookhaven, 2015 NY Slip Op 04086, 2nd Dept 5-13-15

 

Defect Was Trivial As a Matter of Law—Criteria Explained

The Second Department determined the slip an fall case should have been dismissed.  The defect was trivial as a matter of law: “… [P]roperty owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . There is no minimal dimension test or per se rule that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable … “. [internal quotations omitted]  Santacruz v Taco Bell of Am., LLC, 2015 NY Slip Op 04111, 2nd Dept 5-13-15

 

,

Owner of Animal Which Strays Can Be Liable in Tort for Related Motorcycle Accident

The Fourth Department determined plaintiff’s complaint should not have been dismissed.  Plaintiff’s decedent was killed when his motorcycle struck a cow which had wandered off defendant’s land:

The Court [of Appeals has] held that “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7)—is negligently allowed to stray from the property on which the animal is kept” … . Sargent v Mammoser, 2014 NY Slip Op 03372, 4th Dept 5-9-14

 

, ,

Allegations that Town Was Negligent in Maintaining a Sewer System Involve a Proprietary Function Subject to Ordinary Rules of Negligence

The Fourth Department determined plaintiff’s causes of  action against a town alleging negligent maintenance, as opposed to design, of a sewer system properly survived summary judgment.  Maintenance is a proprietary function of the town and is subject to ordinary negligence principles:

If the municipality 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 municipality 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” (id. at 425 [internal quotation marks omitted]), the court must undertake a separate inquiry to determine whether the municipality owes a special duty to the injured party … . In the event that the plaintiff fails to prove such a duty, the municipality is insulated from liability. Even in the event that the plaintiff proves such a duty, however, the municipality will not be liable if it proves that the alleged negligent act or omission involved the exercise of discretionary authority … .

With respect to municipal sewer malfunctions, it is well settled that a municipality’s design of a sewer system constitutes a governmental function …, while a municipality’s “operation, maintenance and repair of th[at] sewer system is a proprietary function, and thus the Town’s liability in that respect is not contingent upon the existence of a special relationship”… . Gilberti v Town of Spafford, 2014 NY Slip Op 03382, 4th Dept 5-9-14

 

, ,

Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether He Had Constructive Notice of the Presence of Lead Paint

In the context of a summary judgment motion, the Fourth Department determined the landlord did not meet his burden of demonstrating he did not have constructive notice of the presence of lead paint:

Where, as here, there is no evidence that the landlord had actual notice of the existence of a hazardous lead paint condition, plaintiff may establish that defendant had constructive notice of such condition by demonstrating that the landlord “(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” (Chapman v Silber, 97 NY2d 9, 15). Defendant conceded that he was aware that a young child lived in the subject premises, and we conclude that he failed to meet his burden on the four remaining Chapman factors… . Wood v Giordano, 2015 NY Slip Op 03984, 4th Dept 5-8-15

 

Question of Fact Whether It Was Foreseeable Children Would “Ride” an Unsecured Gate Resulting in Injury

The Fourth Department determined there was a question of fact whether it was foreseeable that children would swing on an unsecured gate to a cemetery (open to the public). The seven-year-old plaintiff was injured while “riding the gate.” Although there is nothing inherently dangerous about an unsecured gate, knowledge that children played in the cemetery raised a question of fact whether injury to a child was foreseeable:

“It is beyond dispute that landowners . . . have a duty to maintain their properties in [a] reasonably safe condition” … . “Consistent with that duty, the degree of care to be exercised must take into account the known propensity’ of children to roam and climb and play’ ” … . Indeed, “New York State courts have recognized the special propensities of children and the prevailing social policy of protecting them from harm’ . . . and have not deprived them of a right to compensation for injuries caused by the negligence of third parties . . . solely on account of their misuse of an instrument found on the defendant’s premises” … . “What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” … .

* * * “[A]t least once it is known that children commonly play around . . . an artificial structure [such as the gate], their well-known propensities . . . to climb about and play’ . . . create a duty of care on the part of a landowner to prevent foreseeable risks of harm that might arise out of those activities” … .

Given that, “as a matter of law, [ riding’ a gate] is not such an extraordinary’ form of play as to break the causal connection between the dangerous condition . . . and plaintiff’s injuries,” we conclude that there is a triable issue of fact whether “[i]t was a natural and foreseeable consequence of defendant’s failure to effectively secure the [gate] against access that young children would play [on it],” thereby resulting in injury … . Charles v Village of Mohawk, 2015 NY Slip Op 03975, 4th Dept 5-8-15

 

,

Injury While Trying to Pick Up a Fallen 3000 Pound Roll of Paper Was a Foreseeable Consequence of an Alleged Equipment Defect Which Caused the Roll to Fall

The Fourth Department determined the summary judgment motion of the defendants—manufacturers and modifiers of a pallet truck—was properly denied.  The complaint alleged the pallet truck and the roll cradle with which the pallet truck was modified were defective, causing a 3000 pound roll of paper to fall off the truck.  Plaintiff was severely injured while trying to lift the fallen roll.  The defendants’ arguments that any defects in the pallet truck and roll cradle were not the proximate cause of the injury, and the attempt to pick up the fallen roll was the superseding cause of the injuries, were rejected. The court determined the cause of the injury was within the class of foreseeable hazards associated with a fallen roll and the risk of the intervening act (lifting the fallen roll) was the same risk that renders the actor negligent:

“As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions” … . Where the cause of an accident is “within the class of foreseeable hazards that [a] duty exists to prevent, the [defendant] may be held liable, even though the harm may have been brought about in an unexpected way” … . We conclude that the hazard that caused plaintiff’s injury, i.e., the movement of the roll while it was being placed back in an upright position, was “within the class of foreseeable hazards” associated with a roll falling off the allegedly defective pallet truck …, and thus a jury “could rationally [find] that . . . there was a causal connection between [defendants’ alleged] negligence and plaintiff’s injuries” … . We thus reject the contention of defendants that the falling roll merely “furnished the occasion” for plaintiff’s accident.

We also reject the contention of defendants that the actions of plaintiff and his coworkers in attempting to upright the roll were a superseding cause of plaintiff’s injuries. “An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act is the very same risk which renders the actor negligent” … . As noted above, the risk of the roll falling while being uprighted is the same risk underlying plaintiffs’ allegations of negligence, and we conclude that the actions of plaintiff and his coworkers were not “of such an extraordinary nature” as to relieve defendants of liability … . Ard v Thompson & Johnson Equip. Co., Inc., 2015 NY Slip Op 03985, 4th Dept 5-8-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy