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Question of Fact Whether Movie Theater Breached Its Duty to Protect Patrons from Assault

The Second Department determined defendant movie theater’s motion for summary judgment was properly denied.  Plaintiffs were assaulted at the theater.  Depositions revealed there had been four or five similar incidents at the theater and one of the plaintiffs screamed for help throughout the 15-to-20-minute assault:

A property owner must act in a reasonable manner to prevent harm to those on its premises, which includes a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so … . However, “the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … . Solomon v National Amusements, Inc., 2015 NY Slip Op 04306, 2nd Dept 5-20-15

 

Tractor-Trailer Veered Into Oncoming Lane Striking Bus/Emergency Doctrine Required Dismissal of Complaint Against Bus Company and Driver as a Matter of Law/Lessor of Trailer Protected Against Vicarious Liability by Graves Amendment/Negligent Entrustment Cause of Action Against Lessor of Trailer Dismissed as a Matter of Law (No Special Knowledge Use of Trailer by Lessee Would Render It Unreasonably Dangerous)

A tractor trailer suddenly veered into oncoming traffic and struck a bus owned by one of the defendants, Schoolman.  The Second Department determined the emergency doctrine precluded, as a matter of law, the suit against the bus company and the driver of the bus (Zimmardi). The court also determined the company which leased the trailer, EMH,  was protected from vicarious liability by the Graves Amendment, and was not liable, as a matter of law, under a negligent entrustment theory. The leasing company had no special knowledge of a use of the trailer by the lessee that would render the use of the trailer unreasonably dangerous:

Here, Schoolman established its prima facie entitlement to judgment as a matter of law dismissing the complaints … by demonstrating that its driver, Zimmardi, was faced with an emergency situation not of his own making when the truck suddenly veered into his lane of traffic, and that he acted reasonably in the context of that emergency … . * * *

EMH established its prima facie entitlement to judgment as a matter of law in connection with the vicarious liability causes of action by demonstrating, prima facie, that the Graves Amendment (49 USC § 30106) applied to shield it from liability for the plaintiffs’ injuries by virtue of its status as a commercial lessor of motor vehicles that was free from negligence in maintaining the subject vehicle (see Castillo v Amjack Leasing Corp., 84 AD3d 1297, 1297-1298; Graham v Dunkley, 50 AD3d 55, 57-58). Further, EMH established its prima facie entitlement to judgment as a matter of law dismissing the negligent entrustment causes of action insofar as asserted against it by demonstrating that it did not possess special knowledge concerning a characteristic or condition … that rendered the use of the leased vehicle … unreasonably dangerous … . Pacelli v Intruck Leasing Corp, 2015 NY Slip Op 04292, 2nd Dept 5-20-15

 

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Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained—Criteria for Motion to Dismiss Based on Documentary Evidence Explained—Pleading Requirements for Legal Malpractice Explained

In finding the legal malpractice complaint properly survived motions to dismiss, the Second Department explained the criteria for a motion to dismiss for failure to state a cause of action where documentary evidence is submitted (question is whether plaintiff has a cause of action, not whether one has been stated, affidavits considered to remedy defects in complaint), the criteria for a motion to dismiss founded on documentary evidence (documents must utterly refute allegations in complaint), the elements of legal malpractice, and the adequacy of damages allegations in a legal malpractice complaint (cannot be conclusory or speculative but plaintiff not obligated to show it actually sustained damages) :

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026…). Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … .

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law… .

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained … . A plaintiff must plead “actual[,] ascertainable damages” resulting from the attorney’s negligence … . Conclusory or speculative allegations of damages are insufficient… . However, “[a] plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred” … . Randazzo v Nelson, 2015 NY Slip Op 04299, 2nd Dept 5-20-15

 

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A Police Report of a Vehicle Accident Involving Respondent’s Employee Was Not Sufficient to Alert Respondent to the Facts Underlying Petitioner’s Claim—Petition to File Late Notice of Claim Properly Denied

The Second Department determined the petition to file a late notice of claim was properly denied because there was no showing the respondent school district was aware of the facts underlying the claim, there was no showing the school district was not prejudiced by the two-month delay, and there was no showing of an adequate excuse for the delay.  The petitioner argued that a police report describing a vehicle accident provided notice of the facts to the school district. But the report indicated only that respondent’s employee was involved in the accident, which was not sufficient to establish respondent’s knowledge of the facts of plaintiff’s claim:

For a police accident report to serve as sufficient notice to the public corporation, the public corporation must have been “able to readily infer from that report that a potentially actionable wrong had been committed by the [employee of] the public corporation” … . A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim … . The petitioners’ contention that the respondent had actual knowledge of their claim solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit … . Matter of Thill v North Shore Cent. School Dist., 2015 NY Slip Op 04332, 2nd Dept 5-20-15

 

Question of Fact Whether Embankment Near a Stream Was an “Open and Obvious” Dangerous Condition at 3 a.m.

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants (property owners).  Plaintiff, who had been invited onto the property, fell off an embankment near a stream and fractured his ankle.  Plaintiff was among a group who had gathered around a bonfire in an area which had been used for that purpose by defendants.  The fall took place at 3 a.m.  The Second Department determined there was a question of fact whether the dangerous condition was open and obvious (because it was dark):

“A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . “The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff’s presence on the property” …. “Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain” … .

However, a landowner does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous … . Moreover, the question “of whether a condition is hidden or open and obvious is generally for the finder of fact to determine” …, although, in a proper case, a condition may be found open and obvious as a matter of law. Nonetheless, whether a condition is open and obvious “cannot be divorced from the surrounding circumstances,” and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured … . Barone v Risi, 2015 NY Slip Op 04265, 2nd Dept 5-20-15

 

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School Employee’s After-Hours Inappropriate Behavior Involving a Student Was Not Proximately Caused by Negligent Supervision/Retention of the Employee or Negligent Supervision of the Student on the Part of the School District

The Second Department reversed Supreme Court and granted the defendant school district’s motion to dismiss the complaint.  The school’s marching band director, Perna, engaged in inappropriate communications with plaintiff’s child, KS, a student who was in the marching band.  The communications by computer and cell phone took place off school grounds after hours.  The Second Department determined the band director’s after-hours behavior was not proximately caused by negligent retention or supervision of Perna or negligent supervision of KS:

Because the inappropriate conduct by Perna toward KS, the plaintiff’s child, occurred after school hours and off school grounds by means of their personal computers and cellular phones, the causes of action alleging negligent retention and supervision cannot provide a basis for liability against the appellants. Although KS first met Perna through the marching band, KS’s injuries were not proximately caused by any negligent retention or supervision by the appellants … . In opposition, the plaintiff failed to raise a triable issue of fact.

Additionally, the Supreme Court should have granted that branch of the appellants’ motion which was for summary judgment dismissing so much of the complaint as alleged negligent supervision of KS, since the appellants established, prima facie, that the wrongful acts occurred outside of the school grounds … and, in opposition, the plaintiff failed to raise a triable issue of fact. MS, etc. v Arlington Cent. School Dist., 2015 NY Slip Op 04290, 2nd Dept 5-20-15

 

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Release Null and Void Under the General Obligations Law–Plaintiff Paid a Fee to Participate in the Basketball Game In Which He Was Injured

Plaintiff paid a fee to participate in a basketball league and signed a release of liability.  He was injured during a game when his hand went through the glass of a door behind a basketball hoop. The defendants sought permission to amend their answer to assert the defense of release and Supreme Court allowed the amendment. The Second Department determined the motion for leave to amend the answer should have been denied because the affirmative defense was “patently devoid of merit.” General Obligations Law 5-326 nullifies any such release where the owner or operator of a sports facility charges a fee for use of the facility. Falzone v City of New York, 2015 NY Slip Op 04273, 2nd Dept 5-20-15

[General Obligations Law 5-326 provides: “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”]

 

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A Conditional Judgment May Be Rendered On the Issue of Contractual Indemnity—The Party Seeking Contractual Indemnity Must Be Free from Negligence

Plaintiff was injured at a construction site when he fell from a ladder. The construction manager commenced a third-party action against the general contractor seeking contractual indemnification in the event the construction manager is liable to the plaintiff,. The Second Department noted that a ” ‘court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed’ … . The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability …”. Arriola v City of New York, 2015 NY Slip Op 04079, 2nd Dept 5-13-15

 

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A Request for an Admission Which Goes to the Heart of the Litigation Is Improper—Defendant Should Have Been Allowed to Withdraw Its Admission that Its Employee Was Acting Within the Scope of His Employment When a Vehicle Accident Occurred

The Second Department determined Supreme Court should have allowed defendant to withdraw admissions made in response to a notice to admit. Plaintiff was involved in an accident with a vehicle driven by an employee of defendant, Islip Pizza.  In response to a notice to admit, the defendant stated that the employee was acting in the scope of his employment at the time of the collision. Because defendant’s liability, under the doctrine of respondeat superior, depended entirely on whether the employee was acting within the scope of his employment, the admission went to the heart of the matters at issue. A request for an admission which deals with an ultimate conclusion is improper (CPLR 3123 (a)). Defendant should have been allowed to withdraw it (CPLR 3123 (b)):

Under CPLR 3123(a), a party may serve upon another party a written request that it admit, among other things, “the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry” (CPLR 3123[a]). The legislative policy underlying CPLR 3123(a) is to promote efficiency in the litigation process by “eliminat[ing] from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper” … . Furthermore, under CPLR 3123(b), a court may at any time permit a party to amend or withdraw any admission “on such terms as may be just” (CPLR 3123[b]…).  Altman v Kelly, 2015 NY Slip Op 04076, 2nd Dept 5-13-15

 

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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

 

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