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Knowledge that Water Will Be Tracked In Is Not Constructive Knowledge of a Dangerous Condition—Property Owner Is Not Required to Cover All of the Floor with Mats or Continuously Mop Up Tracked-In Rain

In reversing Supreme Court and granting summary judgment to the defendant, the Second Department noted that knowledge that water might be tracked in when it rains was not sufficient to demonstrate constructive knowledge of a dangerous condition:

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the allegedly dangerous condition of accumulated water on the floor upon which the plaintiff slipped and fell, or have actual or constructive notice of the condition … . In opposition, the plaintiff failed to raise a triable issue of fact. The defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from tracked-in rain … . Moreover, “[a]; general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition” … . Sarandrea v St Charles School, 2014 NY Slip Op 03999, 2nd Dept 6-4-14

 

School Not Liable for Three-Year-Old’s Failure to Get Off the Bus After Arrival at the School—Child Had Not Yet Entered the Orbit of the School’s Authority—Although School Voluntarily Undertook the Duty to Determine the Whereabouts of Absent Students, the Parents Were Not Aware of that Policy and Therefore Could Not Have Relied On It

The Second Department reversed Supreme Court and dismissed the complaint against a private school.  The infant plaintiff, a three-year-old with special needs, was left on the bus which transported him to school for six hours.  The Second Department determined the child had not yet entered the “orbit of” the school’s authority.  In addition, although the school voluntarily undertook to determine the whereabouts of absent children, there was no showing the child’s parents were aware of the policy:

A school’s duty to its students is dependent on its physical custody of those students (see Stephenson v City of New York, 19 NY3d 1031, 1033). Custody ceases when the student has passed out of the “orbit of” the school’s “authority” … . Here, it is undisputed that Nicholas never passed into the physical custody of the school, as he never left the bus. * * *

Voluntary conduct may give rise to liability, even if there would otherwise be no duty to act, if “the defendant’s affirmative action adversely affected the plaintiff and the defendant failed to act reasonably”… . In order for a party to be negligent in the performance of an assumed duty, however, the plaintiff must have known of and detrimentally relied upon the defendant’s performance, or the defendant’s actions must have increased the risk of harm to the plaintiff … . Arroyo v We Transp Inc, 2014 NY Slip Op 03965, 2nd Dept 6-4-14

 

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Circumstances When Hospital May Be Liable for Actions of Non-Employee Doctor Explained

The Second Department determined the defendant hospital was not liable for the alleged negligence of a doctor (Berlingieri) who was not a hospital employee.  In the course of the decision, the court explained when a hospital may be liable for the actions of a non-employee doctor:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . An exception to this general rule exists where a plaintiff seeks to hold a hospital vicariously liable for the alleged malpractice of an attending physician who is not its employee where “a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . Thus, in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice “was an independent contractor and not a hospital employee” …, and that “the exception to the general rule did not apply” … . In this case, the hospital met that burden by demonstrating that Berlingieri was not a hospital employee, and that [plaintiff] sought treatment from a particular physician, Joanow, went to the hospital at Joanow’s direction, and was in fact treated by Joanow and a medical team that he assembled shortly after her admission … .

A plaintiff may rebut a hospital’s prima facie showing by raising a triable issue of fact as to whether the hospital can be held vicariously liable for the malpractice of an attending physician who is not under its employ pursuant to a theory of “apparent or ostensible agency” … . To support a viable claim based upon ostensible agency, a plaintiff must set forth facts sufficient to support the conclusion that the hospital engaged in some misleading conduct upon which the plaintiff reasonably relied when the plaintiff decided to accept medical services from the hospital … . There is no evidence that [plaintiff] was misled by the hospital into believing that Berlingieri was a member of its staff, and the record does not reflect any other allegation by [plaintiff] that she believed there to be an employment relationship between Berlingieri and the hospital, and that she thereupon accepted his services in reliance upon such a relationship … . Muslim v Horizon Med Group PC, 2014 NY Slip Op 03991, 2nd Dept 6-4-14

 

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To Succeed In a Legal Malpractice Action Stemming from Representation in a Criminal Matter, the Plaintiff Must Have a Colorable Claim of Actual Innocence—Elements of Legal Malpractice in this Context Explained

The Second Department determined defendant-attorney’s motion for summary judgment dismissing the legal malpractice complaint should have been granted.  Plaintiff, when represented by defendant-attorney, was convicted of sex offenses. The conviction was overturned on “ineffective assistance of counsel” grounds.  Plaintiff was acquitted upon retrial. In the legal malpractice action, the plaintiff was unable to prove the element of causation.  Defendant-attorney demonstrated plaintiff’s conviction was not due solely to defendant-attorney’s conduct, but was based in part on plaintiff’s “guilt,” in that her children provided graphic testimony alleging sexual abuse. To succeed in a legal malpractice action stemming from a criminal matter, the plaintiff must at least have a colorable claim of actual innocence.  In addition, the nonpecuniary damages sought by the plaintiff (psychological injury due to her incarceration) are not recoverable in a legal malpractice action.  The Second Department explained the elements of legal malpractice in this context (stemming from representation in a criminal case):

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . In the civil context, this Court has held that a plaintiff in a legal malpractice action “need prove only that the defendant-attorney’s negligence was a proximate cause of damages” … . However, in a legal malpractice action such as this one, arising from representation in a criminal matter, the “plaintiff must have at least a colorable claim of actual innocence” …, and the plaintiff ultimately bears the unique burden to plead and prove that his or her “conviction was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” … . ” To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements'” … . Dawson v Schoenberg, 2015 NY Slip Op 04603, 2nd Dept 6-3-15

 

Slippery Dock Was an Open and Obvious Condition—Landowner Had No Duty to Protect Against the Condition

Plaintiff was injured when he stepped on a dock from a boat.  Plaintiff alleged the dock was slippery. The Second Department determined Supreme Court should have granted defendant’s motion for summary judgment because a landowner has no duty to protect against an open and obvious condition:

A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . Here, the defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law … . “[A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incident to the nature of the property, and that could be reasonably anticipated by those using it” … . A slippery condition on a dock is necessarily incidental to its nature and location near a body of water … . Mossberg v Crow’s Nest Mar. of Oceanside, 2015 NY Slip Op 04618, 2nd Dept 6-3-15

 

Abutting Property Owners Not Liable for Falls in Sidewalk Tree Wells (NYC)

The Second Department noted that, pursuant to the New York City Administrative Code, abutting property owners are not responsible for falls within city-owned tree wells (within sidewalks). Defendant’s motion for summary judgment should have been granted:

The [defendant] argued that it could not be held liable under § 7-210 of the Administrative Code of the City of New York (hereinafter the Administrative Code), which imposes tort liability on abutting property owners for the failure to maintain city-owned sidewalks in a reasonably safe condition, because the plaintiff fell in a tree well, which is not considered to be part of a sidewalk for purposes of Administrative Code § 7-210. The Supreme Court denied the motion.

A tree well does not fall within the definition of “sidewalk” as that term is defined by section 7-210 of the Administrative Code and thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … .

Here, the [defendant] established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff fell in a tree well, not any part of the surrounding sidewalk, and that it had no duty to maintain the tree well, as that tree well was owned by the City of New York … . In opposition, the plaintiff failed to raise a triable issue of fact. Newkirk v City of New York, 2015 NY Slip Op 04620, 2nd Dept 6-3-15

 

Doctrine of Primary Assumption of Risk Applies to Informal Game of Catch on a Paved Handball Court

The First Department determined the doctrine of primary assumption of risk applied where plaintiff tripped on the raised, cracked, uneven edge of a sidewalk adjacent to the paved handball court where he was playing catch with a friend:

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with the construction of the playing surface, including risks involving less than optimal conditions .. . “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” … .

The assessment of awareness must take place against a particular plaintiff’s skill and experience … . Here, the 26-year-old plaintiff was familiar with the risks inherent in the sport of football, such as the risk of falling while running to catch a ball. He had been to Jerome Playground South to play football or baseball at least 15 times previously and was generally aware of defects in the park. Although plaintiff alleges that he did not see the particular defect that caused him to trip before he fell, cracks in the concrete were visible to a person walking by and nothing covered or concealed the open and obvious condition. Given these circumstances, the primary assumption of risk doctrine is applicable “because plaintiff was involved in an athletic activity at a designated venue and was aware of the perfectly obvious risk of playing on the cracked court”… . Latimer v City of New York, 2014 NY Slip Op 03954 1st Dept 6-3-14

 

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Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial—No Prejudice to Defendant

The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer’s specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs’ motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” … . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial … . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” … .

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice …, failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner … . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15

 

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Doctor Did Not Have a Duty to Disclose an Email from a Non-Physician Representative of the Implant Manufacturer Which Indicated Plaintiff Might Not Be a Good Candidate for the Implants

The First Department, over a dissent, determined summary judgment had been properly granted to the defendants in a medical malpractice action.  The court found that the doctor was not required to provide the plaintiff with an email from a non-physician representative of the implant manufacturer stating that plaintiff might not be an ideal candidate for the implant because the implants require “good tissue support:”

Plaintiff … failed to rebut defendants’ showing that she was properly informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits, by tendering expert testimony proving the insufficiency of the information … disclosed to her … .

There is no basis in the law for the dissent’s conclusion that [the doctor] had a duty to disclose to plaintiff the email from the manufacturer’s representative in response to her general query. The dissent mistakenly equates that representative’s conclusory email with a product’s written manufacturer warning or a consulting doctor’s opinion. Ramos v Weber, 2014 NY Slip Op 03943, 1st Dept 5-3-14

 

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Res Ipsa Locquitur Doctrine Not Available Where Multiple Defendants Did Not Have Concurrent Control Over the Alleged Malpractice, i.e., Leaving Surgical Packing in the Wound

The Second Department determined the hospital defendants and the defendant rehabilitation facility (Parker) were entitled to summary judgment in a case where surgical packing was left in the wound.  The surgeon was not an employee of the hospital and there were no allegations hospital staff negligently followed the surgeons instructions.  The court explained why the doctrine of res ipsa loquitur did not apply to the hospital defendants and the defendant rehabilitation facility:

The plaintiff relies on the doctrine of res ipsa loquitur to relieve him of the burden of proving which defendant had been negligent and when. Although res ipsa loquitur may be utilized where more than one defendant may have been in control …, the responsible defendants must share exclusive control of the instrumentality causing injury. Here, neither the hospital defendants nor Parker were acting jointly or concurrently with each other. They did not have concurrent control of the surgical packing that allegedly caused the injury. The treatment here was performed by different entities at different times in different locations. This is not a situation where several physicians participated in a single surgical procedure and, as a result, have the burden to “explain their actions and conduct in the operating room wherein plaintiff was injured” … . Accordingly, under these circumstances, the plaintiff’s reliance upon the doctrine of res ipsa loquitur in opposition to the motion is misplaced, inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisite elements of the doctrine … . Buesko v Gordon, 2014 NY Slip Op 03969, 2nd Dept 6-4-14

 

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