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Question of Fact About Whether Skater Assumed the Risk of a Collision with a Skating Guard Who May Have Acted Recklessly

The Second Department determined a skater may not have assumed the risk of a collision with a skating guard.  There was a question of fact about whether the skating guard had acted recklessly:

Voluntary participants in a sport or recreational activity “may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . Although collisions between skaters are a common occurrence, and thus an inherent risk to ice skating …, “participants do not consent to acts which are reckless or intentional” …, or to any “unassumed, concealed or unreasonably increased risks” … .

Here, the evidence submitted by the City in support of its motion failed to establish as a matter of law that the injury-causing event was a known, apparent, or reasonably foreseeable consequence of the plaintiff’s participation in the sport. The City’s submissions raised questions of fact as to whether the conduct of its employee, the skating guard who allegedly caused the plaintiff’s accident, was reckless or intentional and unreasonably increased the risk of a collision … . Kats-Kagan v City of New York, 2014 NY Slip Op 03235, 2nd Dept 5-7-14

 

Intentional Conduct Cannot Be the Basis for a Negligent Infliction of Emotional Distress Cause of Action

The Second Department determined a cause of action for negligent infliction of emotional distress cannot be based upon intentional conduct.  Plaintiff alleged he was attacked with a hammer by the defendant:

A cause of action to recover damages for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, “generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff’s physical safety, or causes the plaintiff to fear for his or her own safety” … . “Such a claim must fail, where, as here, no allegations of negligence appear in the pleadings'” … . Here the plaintiff’s allegations in the verified complaint that the defendant “deliberately and violently” attacked him with a hammer, while using racial and ethnic slurs, are premised on intentional conduct and not negligence. Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Santana v Leith, 2014 NY Slip Op 03251, 2nd Dept 5-7-14

 

NEGLIGENCE Plaintiff’s Inability to Identify the Precise Sidewalk Defect Which Caused Her Fall (In a Photograph) Did Not Warrant Summary Judgment to the Defendant—Plaintiff Testified She Tripped on a Bump in the Sidewalk

The First Department determined that plaintiff’s inability to identify the precise sidewalk defect over which she tripped did not warrant granting summary judgment to the defendant. Plaintiff testified her foot struck a bump in the sidewalk but she was unable to identify the defect in a photograph of the sidewalk. Under the circumstances the plaintiff was not required to identify the particular defect which caused her fall in order to avoid summary judgment. She was able to demonstrate a “nexus” between a defect and her fall:

At her deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff’s inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible … . Under the circumstances, plaintiff’s testimony was sufficient to demonstrate a causal “nexus” between a defect in the sidewalk in front of [defendant’s] property and her fall, and she was not required to prove “precisely which particular” defect in the sidewalk caused her to fall in order to avoid summary judgment … . Kovach v PJA, LLC, 2015 NY Slip Op 03931, 1st Dept 5-7-15

 

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Questions of Fact Raised About Whether Ambulance Driver Was Engaged in an Emergency Operation at the Time of the Accident, and If So, Whether the Ambulance Driver Was Reckless in Violation of Vehicle and Traffic Law 1104

The Second Department determined questions of fact existed about whether an ambulance driver (Stewart) was engaged in an emergency operation at the time of the accident and, if so, whether Stewart acted recklessly in violation of Vehicle and Traffic Law 1104:

Vehicle and Traffic Law § 114-b defines emergency operation as: “[t]he operation . . . of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency.” In the instant case, the plaintiff presented evidence that the radio call to which Stewart was responding was for the police to assist, and that Stewart sought to offer assistance in the form of “crowd control . . . until the police got there.” Under the circumstances presented here, we agree with the plaintiff that triable issue of fact is presented as to whether Stewart was operating the ambulance as part of an emergency operation as contemplated by the statute … .

We also find that the record presents factual issues as to whether Stewart’s conduct constituted reckless disregard. The “reckless disregard” standard requires proof that Stewart intentionally committed “an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” … . In the instant matter, the plaintiff submitted an affidavit from a nonparty witness that raised triable issues of fact as to whether the ambulance slowed down prior to entering the intersection at which the collision occurred. Although Stewart claimed that she was traveling five miles per hour through the subject intersection, the witness averred in his affidavit that Stewart was driving at a high rate of speed, without ever slowing down, on the wrong side of the road through a steady red signal. “Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact” … . Thus, triable issues of fact have been raised … . Torres v Saint Vincent’s Catholic Med Ctrs of NY, 2014 NY Slip Op 03256, 2nd Dept 5-7-14

 

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Suit Against Town by Representatives of Ambulance Personnel Killed in an Accident Prohibited by Volunteer Ambulance Workers’ Benefit Law/Question of Fact Whether Ambulance Driver Was Reckless (in Violation of Vehicle and Traffic Law 1104)

The Second Department determined the town was protected against a suit by representatives of ambulance personnel killed when the ambulance was involved in an accident.  Volunteer Ambulance Workers’ Benefit Law section 19 provides an exclusive remedy (much like the Workers’ Compensation Law) and thereby precluded the lawsuit against the town.  The Second Department also determined a question of fact had been raised about whether the ambulance driver was reckless.  Therefore suit against the driver was not precluded by Vehicle and Traffic Law 1104 which imposes a “reckless disregard” standard for causes of action against the drivers of emergency vehicles.  It is worth noting that the question of fact under the “reckless disregard” standard was found to exist in spite of a Department of Motor Vehicles hearing which determined the ambulance driver did not act recklessly.  Ryan v Town of Riverhead, 2014 NY Slip Op 03250, 2nd Dept 5-7-14

 

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Late Notice of Claim Can Be Allowed Even in Absence of Reasonable Excuse Where Defendants Had Actual Notice

The Second Department explained the criteria for determining whether to allow a late notice of claim, noting that the lack of a reasonable excuse does not necessarily require denial of the application where there is actual notice and an absence of prejudice:

The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the court … . Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense … . Neither the presence nor absence of any one factor is determinative … . The absence of a reasonable excuse is not necessarily fatal … . However, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance … .

Here, the City defendants had actual notice of the essential facts constituting the claim well within the 90-day period for serving a notice of claim. Bakioglu v Tornabene, 2014 NY Slip Op 03219, 2nd Dept 5-7-14

 

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Jury’s Finding that the Defendant Was Negligent but that the Negligence Was Not the Proximate Cause of the Accident Was Against the Weight of the Evidence—Motion to Set Aside the Verdict Should Have Been Granted—New Trial Ordered

The Third Department determined Supreme Court should have granted plaintiff’s motion to set aside the verdict.  Plaintiff was injured when her bicycle struck a recessed manhole cover.  Defendant construction company had placed barrels in the roadway to create a pedestrian walkway.  The placement of barrels served to direct users of the walkway toward the recessed manhole. The jury found the placement of the barrels negligent but further found that negligence was not the proximate cause of the accident.  The verdict was against the weight of the evidence because the only reason the placement of the barrels would be deemed negligent is that the barrels diverted traffic toward the recessed manhole:

“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” … . Further, we view the evidence in the light most favorable to the nonmoving party, defendant, and afford deference to the jury’s credibility determinations … . A “plaintiff’s own conduct may be a superceding cause which severs the causal connection between [the] defendant’s negligence and the injury [when] a plaintiff’s negligence [is] more than mere contributory negligence, which would be relevant in apportioning culpable conduct” … .

* * * The only theory presented at trial as to why such placement was negligent, as indicated in the jury instructions, was that it diverted traffic toward a dangerous recessed manhole cover. Given that the uncontested evidence was that plaintiff was diverted in just such a manner, no fair interpretation of the evidence “would support the conclusion that [plaintiff’s] conduct was so extraordinary or unforeseeable as to make it unreasonable to hold defendant[] responsible for the resulting damages” … . Therefore, Supreme Court erred in denying plaintiff’s motion to set aside the verdict. Durrans v Harrison & Burrowes Bridge Constructors, Inc., 2015 NY Slip Op 03896, 3rd Dept 5-7-15

 

Doctor Who Allegedly Wrongfully Prescribed Narcotics for a Drug Addict Who Shot Plaintiff’s Decedent in an Attempt to Steal Narcotics from a Pharmacy Did Not Owe a Duty of Care to Plaintiff’s Decedent

The Second Department determined the duty to protect persons from the criminal acts of others did not extend to plaintiff’s decedent.  Plaintiff sued a doctor who operated a pain management clinic, alleging that the doctor operated a “pill mill” and wrongfully provided drugs to a drug addict,  The drug addict shot plaintiff’s decedent during a robbery of a drug store in an attempt to steal narcotics. The court noted that there are situations in which a defendant exercises sufficient control to prevent harm to others. Here, however, in the absence of such control, the doctor owed no duty of care to plaintiff’s decedent:

“The question of whether a defendant owes a duty of care to another person is a question of law for the courts” … .

Generally, “[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm” … . Further, “there is no duty to control the conduct of third persons to prevent them from causing injury to others,’ even where, as a practical matter, the defendant could have exercised such control” … .

… Courts have imposed a duty of care “where there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons” that courts have identified a duty to exercise such control … . Thus, courts have imposed a duty to control the conduct of others “where there is a special relationship: a relationship between [the] defendant and [the] third person whose actions expose [the] plaintiff to harm such as would require [the] defendant to protect the plaintiff from the conduct of others” … .

The Supreme Court erred in denying [the doctor’s] motion to dismiss the complaint insofar as asserted against him for failure to state a cause of action. [The doctor] did not owe a duty to the decedent or to the general public because no special circumstances existed. The decedent was a stranger to [the shooter] and a member of the general public, not a member of “a determinate and identified class” … . Malone v County of Suffolk, 2015 NY Slip Op 03811, 2nd Dept 5-6-15

 

Bar Patron Was Beaten to Death by Other Patrons—Defendants (Bar and Premises Owners) Were Unable to Demonstrate the Attack Was Not Foreseeable and their Negligence Was Not the Proximate Cause of the Attack—Defendants’ Summary Judgment Motion Properly Denied

The Second Department determined there were questions of fact whether a bar patron could have been protected from harm.  “The plaintiff’s decedent was assaulted by other patrons of a lounge on premises leased by the defendant Bartini’s Pierre, Inc., also known as Station Bar Corp., doing business as Bartini’s Lounge, and owned by the defendant Reiner & Keiser Associates (hereinafter together the appellants).” The appellants were not able to demonstrate prima facie that the attack was not foreseeable, that the attack could not have been prevented, that the appellants’ negligence was not the proximate cause of the attack, or that reasonable security measures to guard against criminal acts by third persons were taken:

  “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, 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 appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them. In support of their motion, the appellants submitted the deposition testimony of a witness to the incident, who testified that, shortly before the incident, he noticed the decedent being restrained by a security guard, but was not aware of the events which led the security guard to restrain the decedent. The witness testified that the security guard then proceeded to escort the decedent out of the premises, during the course of which the decedent was severely beaten by other patrons, resulting in his death. This evidence failed to demonstrate, prima facie, that the attack upon the decedent was not foreseeable, that the appellants lacked the opportunity to prevent the attack, or that any negligence on the appellants’ part was not a proximate cause of the incident … . The appellants also failed to demonstrate, prima facie, that they took reasonable security measures against foreseeable criminal acts of third parties … . Walfall v Bartini’s Pierre, Inc., 2015 NY Slip Op 03830, 2nd Dept 5-6-15

 

Transit Authority Not Liable Under the Emergency Doctrine As a Matter of Law

The Second Department determined the defendant New York City Transit Authority was not liable to the plaintiff as a matter of law under the emergency doctrine.  Plaintiff was a passenger in the Transit Authority’s vehicle when defendant Franco allegedly backed out of a driveway at a high rate of speed (to get over a snow bank) into the path of the Transit Authority’s vehicle. “The common-law emergency doctrine ‘recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency’  … . ‘Although the existence of an emergency and the reasonableness of the response to it generally present questions of fact, those issues may in appropriate circumstances be determined as a matter of law”…”. Majid v New York City Tr. Auth., 2015 NY Slip Op 03809, 2nd Dept 5-6-15

 

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