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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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Question of Fact Whether County Had Constructive Notice of Pothole Which Injured Bicyclist

The Second Department determined a question of fact had been raised about whether the county had constructive notice of a pothole. Plaintiff was injured when his bicycle struck the pothole. Although the county did not have written notice of the defect, the Highway Law (section 139[2]) provides that a county may be liable for a defective highway condition if the county has constructive notice of it. Plaintiff’s expert opined the pothole had existed for four months prior to the accident:

Notwithstanding the existence of a prior written notice statute, a County may be liable for an accident caused by a defective highway condition where the County has constructive notice of the condition (see Highway Law § 139[2]…). Here, the County submitted the deposition testimony of a County employee who stated that he inspected the roadway where the fall is alleged to have occurred every Monday through Friday until the week before the accident, and did not observe any potholes. This was sufficient to establish, prima facie, that the County lacked constructive notice of the alleged defect … . However, in opposition to the County’s motion, the plaintiff submitted the affidavit of an expert who inspected the subject roadway and opined that the defect was in existence for at least four months prior to the accident. This affidavit was sufficient to raise a triable issue of fact as to whether the County had constructive notice of the alleged defect by virtue of the fact that it existed for so long a period that it should have been discovered and remedied in the exercise of reasonable care and diligence … . Rauschenbach v County of Nassau, 2015 NY Slip Op 03818, 2nd Dept 5-6-15

 

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Supervision, Even If Inadequate, Could Not Have Prevented Injury Caused by the Sudden, Unanticipated Act of Another Student—Summary Judgment to Defendant Properly Granted

The First Department determined that plaintiff’s injury on the playground could not have been prevented by supervision. Therefore the alleged inadequate supervision was not a proximate cause of the injury. Plaintiff was injured when he hit a pole while running away from another student. The court noted that the board of education, not the city, is the proper party.  The city is a separate legal entity not responsible for the torts of the board:

As to the claim against the Board, it is well settled that

“[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another. A teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances … .

“Even if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained” … . ” Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'” … . Thus, “[a]n injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

Here, even assuming that plaintiff could demonstrate that the supervision during the gym class was inadequate, the Board established a prima facie case for summary judgment by demonstrating that the accident was the result of a series of sudden and spontaneous acts and that any lack of supervision was not the proximate cause of the infant plaintiff’s injury … . Jorge C. v City of New York, 2015 NY Slip Op 03772, 1st Dept 5-5-15

 

Res Ipsa Loquitur Doctrine Can Apply to an Elevator Maintenance Company Even Where there Is No Proof the Company Had Actual or Constructive Notice of Elevator Misleveling

The First Department, in a full-fledged opinion by Justice Gische, over a two-justice partial dissent, determined that an elevator maintenance company could be liable for a fall allegedly caused by misleveling of an elevator under the doctrine of res ipsa loquitur, even though there was no evidence the elevator maintenance company had actual or constructive notice of the problem. The plaintiff’s allegations of the misleveling, coupled with the settled principle that elevator misleveling does not occur in the absence of negligence, raised a question of fact under the res ipsa loquitur criteria:

Res ipsa loquitur permits a fact finder to infer negligence based upon the sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant’s exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff’s part … . If a plaintiff establishes these elements, then the issue of negligence should be given to a jury to decide … .

Res ipsa loquitur does not create a presumption of negligence; rather it is a rule of circumstantial evidence that allows the jury to infer negligence … . A defendant is free to rebut the inference by presenting different facts or otherwise arguing that the jury should not apply the inference in a particular case … . Notice of a defect is inferred when the doctrine applies and the plaintiff need not offer evidence of actual or constructive notice in order to proceed … . Thus, while there is no proof of actual or constructive notice in this case, res ipsa loquitur can still support plaintiff’s claim … . Ezzard v One E. Riv. Place Realty Co., LLC, 2015 NY Slip Op 03791, 1st Dept 5-5-15

 

Spectator Watching People Sledding Assumed the Risk of Being Struck

The Fourth Department determined plaintiff assumed the risk of injury when she stood at the bottom of a hill to watch people sledding down the hill.  The court noted that in a suit against participants in a sport, a spectator is held to have assumed the risks inherent in the activity, including the risk of being struck:

To establish the defense, “a defendant must show that [the] plaintiff was aware of the defective or dangerous condition and the resultant risk, although it is not necessary to demonstrate that [the] plaintiff foresaw the exact manner in which his [or her] injury occurred” … . … [I]n a suit against participants in [an applicable activity], a spectator generally will be held to have assumed the risks inherent in the [activity], including the specific risk of being struck’ ” … . For instance, it has been held that a spectator at a baseball game assumes the risk of being struck by a foul ball … .

Here, we similarly conclude that, by standing on the side of the hill while watching other people sledding, plaintiff assumed the risk of being struck by a sled. Savage v Brown, 2015 NY Slip Op 03638, 4th Dept, 5-1-15

 

Question of Fact Whether Defendants Assumed a Duty of Reasonable Care When Escorting Elderly Plaintiff to His Car at Night

The Third Department determined a question of fact had been raised about whether defendants assumed a duty of reasonable care when escorting the elderly plaintiff to his car at night.  Plaintiff tripped and fell while being escorted by a hospital security guard after plaintiff had been treated at the hospital.  Plaintiff asked for the escort:

Plaintiffs did …raise a factual issue as to whether defendants assumed a duty of reasonable care regarding the escort provided. Under the assumed duty theory, “the question is whether defendant[s’] conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant[s] done nothing” … . While there was conflicting proof, on this cross motion by defendants for summary judgment we “must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof” … . Plaintiff characterized the lighting conditions when he was ready to leave the emergency room as “pitch black,” prompting him to ask for assistance. The security guard who was summoned had previously escorted people from the emergency room to off-premises parking and thus was familiar with conditions in the area. Plaintiff kept a hand on his wife’s shoulder as they walked assisting his stability. Although the security guard had a flashlight, he did not turn it on and did not walk next to plaintiffs. Plaintiff recalled that, just before he fell, he stated to the security guard that he could barely see because of the darkness, but the guard made a gesture ostensibly indicating that it was safe to proceed and, as plaintiff did so, he immediately stepped into the crack or depression and fell. Accepting such proof and the reasonable inferences therefrom, a jury could conclude that plaintiff would have proceeded more cautiously had he not relied on an individual familiar with the area who apparently gestured for him to continue despite the poor visibility … . Giglio v Saratoga Care Inc, 2014 NY Slip Op 02994, 3rd Dept 5-1-14

 

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Manufacturers Responsible for Packaging a Product Owed a Duty to Plaintiff Injured When the Packaging Failed Under Negligence, Strict Products Liability and Contractual Theories

Plaintiff was injured when the packaging of a product failed. The product was manufactured pursuant to a contract between plaintiff’s employer and one manufacturer, ABS. ABS contracted with a second manufacturer, Keystone, to nickel-plate the product.  Both manufacturers were responsible for aspects of the product’s packaging.  The Fourth Department determined that the manufacturers’ motions for summary judgment were properly denied. Both owed a duty to plaintiff under negligence and strict products liability theories. In addition, ABS owed a duty to the plaintiff as a third-party beneficiary of the contract with plaintiff’s employer. And Keystone owed a contractual duty to the plaintiff as well because, although there was no third-party beneficiary relationship, Keystone had launched an instrument of harm.  Filer v Keystone Corp., 2015 NY Slip Op 03628, 4th Dept 5-1-15

 

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