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Criteria for Common Carrier Liability for Injury Caused by a Sudden Stop Explained (Not Met Here)

In affirming the grant of summary judgment to the defendant transit authority, the Second Department explained the circumstances under which a common carrier may be liable for injuries to a passenger caused by a sudden stop:

To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of ‘jerks and jolts commonly experienced in city bus travel’… . Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent … . There must be ‘objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant’ … . In seeking summary judgment dismissing the complaint, … common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent … .  Alandette v New York City Tr. Auth., 2015 NY Slip Op 03113, 2nd Dept 4-15-15

 

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Village Not Liable for Failure to Place a Crossing Guard at a Particular Intersection—Placement of Crossing Guards Is a “Discretionary,” Not “Ministerial,” Government Action—No Liability Absent Special Relationship to Plaintiff

Infant plaintiff was struck by a car as he was crossing a street after leaving school.  There was no crossing guard at the intersection where infant plaintiff was struck, but there were crossing guards at nearby intersections.  The Second Department determined that the placement of crossing guards was a “discretionary,” not a “ministerial” action.  “[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result … “.  The municipality (village) was not liable absent a special relationship with the infant plaintiff apart from a duty to the general public:

“Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . ” [D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . The assignment of crossing guards to intersections falls within the definition of a discretionary function … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that its actions were discretionary. Although the Village had assigned crossing guards to certain intersections near the school, its decision not to post a crossing guard at the subject intersection does not give rise to liability on the part of the Village … . McCants v Hempstead Union Free School Dist., 2015 NY Slip Op 03136, 2nd Dept 4-15-15

 

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Failure to Submit Lease to Show No Contractual Obligation to Remove Ice And Snow Precluded Summary Judgment to Defendant Out-of-Possession Landlord—Evidence First Submitted in Reply Papers Properly Not Considered

The Second Department determined defendant out-of-possession landlord was not entitled to summary judgment in a slip and fall case because it did not submit the lease and therefore did not demonstrate the absence of any obligation to remove ice and snow.  The court noted that it could not consider evidence presented for the first time in reply papers:

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . Here, the plaintiff did not allege that the landlord’s duty was statutory or based on a course of conduct. Thus, to prevail on its motion, [defendant] was required to demonstrate, prima facie, that it had not retained control over the premises, or that it had no contractual duty to remove snow and ice from the area where the plaintiff allegedly slipped and fell. [Defendant] failed to sustain this burden because it failed to submit a copy of the lease between it and the entity that was the tenant of the subject premises at the time of the accident … .  Poole v MCPJF, Inc., 2015 NY Slip Op 03142, 2nd Dept 4-15-15

 

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Failure to State in the Notice of Claim that Defendant Created the Icy Condition on the Sidewalk, or that the Condition Was the Result of Defendant’s Negligence, Required Dismissal of the Complaint

The Second Department determined summary judgment dismissing the complaint in a slip and fall case was appropriate because the notice of claim did not set forth the legal theory upon which the suit was based:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim, and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality (see General Municipal Law § 50-e[1][a]…). While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, the notice of claim must at least adequately apprise the defendant that the claimant would seek to impose liability under a cognizable theory of recovery … . Moreover “a party may not add a new theory of liability which was not included in the notice of claim” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that the notice of claim made no allegations that the ice patch on which the plaintiff slipped and fell was created by its snow removal operation, or existed by virtue of its negligence … . Steins v Incorporated Vil. of Garden City, 2015 NY Slip Op 03149, 2nd Dept 4-15-15

 

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Criteria for Respondeat Superior (Scope of Employment) Liability Succinctly Explained

The Second Department determined summary judgment was properly denied to the defendant employer.  The employee was test driving a competitor’s car in connection with his job at a Mercedes dealership when the employee was involved in an accident.  The Second Department determined the employer failed to demonstrate the employee was not acting within the scope of his employment at the time of the accident.  The court explained the relevant law:

Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment” … . “An employer, however, cannot be held vicariously liable for its employee’s alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business at the time of the incident … . Zwibel v Midway Automotive Group, 2015 NY Slip Op 03154, 2nd Dept 4-15-15

 

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Owners of Single Family Residence Not Liable for Defects in Abutting Sidewalk

In affirming the grant of summary judgment to the defendants who owned a single family residence abutting the allegedly defective sidewalk where plaintiff fell, the Second Department explained the relevant New York City law:

[Defendants] demonstrated that they were exempt from liability pursuant to Administrative Code of the City of New York § 7-210(b) for their alleged failure to maintain the sidewalk abutting their property by establishing that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of N.Y. § 7-210[b]…).  Further, they established, prima facie, that they could not be held liable for the plaintiff’s alleged injuries under common-law principles. ‘Absent the liability imposed by statute or ordinance, an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use’… . Shneider v City of New York, 2015 NY Slip Op 03148, 1st Dept 4-15-15

 

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A Party Alleging Fraudulent Inducement to Enter a Contract May Both Seek to Avoid Terms of the Contract (Here a Jury-Waiver Clause) and Rely on the Contract in Defense of Breach of Contract Allegations/Criteria for Negligent Misrepresentation Cause of Action Explained in Some Depth (Criteria Not Met Here)

The First Department, over a dissent, determined a party claiming it was fraudulently induced to enter a contract is entitled to a jury trial despite the jury-trial waiver in the contract. Because a party alleging fraudulent inducement can either seek rescission or stand on the contract and seek damages, the party may both seek to avoid terms in the contract (here the jury-waiver clause) and rely on the contract as a defense to breach of contract allegations. The court also found that the counterclaim for negligent misrepresentation was properly dismissed because the existence of a confidential or fiduciary or other special relationship (approaching privity), which would justify reliance on representations, was not demonstrated.  The criteria for negligent misrepresentation was described in some depth:

…[A]contractual jury waiver provision is inapplicable to a fraudulent inducement cause of action that challenges the validity of the underlying agreement … . …  In cases where the fraudulent inducement allegations, if proved, would void the agreement, including the jury waiver clause, the party is entitled to a jury trial on the claim … .

…”[A] defrauded party to a contract may elect to either disaffirm the contract by a prompt rescission or stand on the contract and thereafter maintain an action at law for damages attributable to the fraud” … . As a result, a party alleging fraudulent inducement that elects to bring an action for damages, as opposed to opting for rescission may, under certain circumstances, still challenge the validity of the agreement … .

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“A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information” … . In commercial cases “a duty to speak with care exists when the relationship of the parties, arising out of contract or otherwise, [is] such than in morals and good conscience the one has the right to rely upon the other for information” … . Reliance on the statements must be justifiable, and “not all representations made by a seller of goods or a provider of services will give rise to a duty to speak with care” (id.). “Rather, liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified” (id.). In order to impose tort liability in a commercial case, “there must be some identifiable source of a special duty of care” … . …[A] special duty will be found “if the record supports a relationship so close as to approach that of privity” … . Generally, however, an arm’s-length business relationship between sophisticated parties will not give rise to a confidential or fiduciary relationship that would support a cause of action for negligent misrepresentation … . J.P. Morgan Sec. Inc. v Ader, 2015 NY Slip Op 03071, 1st Dept 4-14-15

 

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Application to File Late Notice of Claim Should Have Been Granted—Plaintiff Was Incapacitated for Months and the City Contributed to the Delay by Failing to Respond to Freedom of Information Requests

Reversing Supreme Court, the First Department determined plaintiff’s application for leave to file a late notice of claim in a slip and fall case should have been granted.  Plaintiff was incapacitated by her injuries for months and did not unreasonably delay in making the application after she retained counsel.  Counsel had difficulty determining the owners of the construction site in issue, of which the city was one, and the city contributed to the delay by failing to respond to plaintiff’s freedom of information requests:

Under these circumstances, where the City contributed to the delay, and the motion was made within the one-year and ninety-day statute of limitations (see CPLR 217-a; see also General Municipal Law § 50-e[5]), the City cannot argue that petitioner unduly delayed in making the motion, or that it did not acquire essential knowledge of the facts underlying petitioner’s claim within a reasonable time after the expiration of the 90-day period for filing a timely notice of claim … . Matter of Rivera v City of New York, 2015 NY Slip Op 03029, 1st Dept 4-9-15

 

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The Breach of Contract Cause of Action Which Was Based Upon Clauses Which Merely Stated the Common Law Standard of Care for Professionals Was Duplicative of the Professional Malpractice Cause of Action and Should Have Been Dismissed/Proper Measure of Damages for Negligent/Defective Building Design Is the Cost of Remediation

Plaintiff hospital alleged that the seismic retrofit of one of the hospital buildings would not operate as intended and sued the architectural firm which designed the retrofit under breach of contract and professional malpractice theories.  Plaintiff prevailed on both causes of action in a non-jury trial. The Third Department determined Supreme Court should have dismissed the breach of contract cause of action because it was duplicative of the professional malpractice cause of action. The only relevant clauses in the contract held the architectural firm to the common law standard for professionals.  Breach of those clauses, therefore, duplicated the professional malpractice cause of action. The Third Department affirmed the professional malpractice verdict and the award of damages, 1.7 million, which reflected the cost of remediation:

The contract does contain two clauses regarding defendant’s performance. They provide that defendant’s “services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the [w]ork,” and “shall be provided . . . in a manner consistent with the standards of care and skill exhibited in its profession for projects of this nature, type and degree of difficulty.” These provisions simply incorporate into the contract the common-law standard of care for a professional. “Making such ordinary obligations express terms of an agreement does not remove the issue [of a violation thereof] from the realm of negligence . . ., nor can it convert a malpractice action into a breach of contract action” … . Inasmuch as a breach of contract cause of action based on the violation of these particular contract provisions would be duplicative of a professional malpractice cause of action, Supreme Court should have dismissed plaintiff’s breach of contract cause of action. * * *

We reject defendant’s contention that plaintiff’s proposed amount of damages constitutes economic waste. The proper measure of damages due to the defective design of a building is the cost to remedy the defect, unless such amount is “grossly and unfairly out of proportion to the good to be attained” by fixing the building … . The defects here were not trivial, but were substantial as to the seismic function of the building, such that plaintiff was entitled to damages in the amount necessary to remediate the defects … . Mary Imogene Bassett Hosp. v Cannon Design, Inc., 2015 NY Slip Op 03016, 3rd Dept 4-9-15

 

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Allegations of Abuse of a Student by a School Bus Monitor Raised Questions of Fact Re: Negligent Supervision of the Student, Negligent Supervision and Training of the Monitor, and Whether the Monitor Was Acting Within the Scope of Her Employment

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment should not have been granted.  The complaint alleged a school bus monitor physically and mentally abused plaintiffs’ son, a student with severe mental disabilities.  The court determined the school did not establish it was unaware of the monitor’s propensity for the alleged misconduct (there was evidence of prior complaints). For that reason, the causes of action for negligent supervision of plaintiffs’ son and negligent supervision and training of the monitor should not have been dismissed. The court further determined the school did not demonstrate the actions taken by the monitor were within the scope of her employment, so the cause of action for negligent supervision and training of the monitor was viable.  The court noted that a negligent supervision and training cause of action would be precluded if the employee were shown to have acted within the scope of her employment, but suit under a “respondeat superior” theory would be possible:

Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable … .

Contrary to the Supreme Court’s determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor’s] propensity to engage in the misconduct alleged. ***

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs’ second cause of action insofar as it alleged negligent supervision and training of [the monitor]. A necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury … . * * *

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training”.  … [T]he school defendants did not establish, prima facie, that [the monitor] was acting within the scope of her employment during the alleged incidents. Consequently, the plaintiffs were not precluded from claiming that the school district was negligent in its supervision and training of [the monitor]. Timothy Mc. v Beacon City School Dist., 2015 NY Slip Op 02942, 2nd Dept 4-8-15

 

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