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Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether He Had Constructive Notice of the Presence of Lead Paint

In the context of a summary judgment motion, the Fourth Department determined the landlord did not meet his burden of demonstrating he did not have constructive notice of the presence of lead paint:

Where, as here, there is no evidence that the landlord had actual notice of the existence of a hazardous lead paint condition, plaintiff may establish that defendant had constructive notice of such condition by demonstrating that the landlord “(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” (Chapman v Silber, 97 NY2d 9, 15). Defendant conceded that he was aware that a young child lived in the subject premises, and we conclude that he failed to meet his burden on the four remaining Chapman factors… . Wood v Giordano, 2015 NY Slip Op 03984, 4th Dept 5-8-15

 

Question of Fact Whether It Was Foreseeable Children Would “Ride” an Unsecured Gate Resulting in Injury

The Fourth Department determined there was a question of fact whether it was foreseeable that children would swing on an unsecured gate to a cemetery (open to the public). The seven-year-old plaintiff was injured while “riding the gate.” Although there is nothing inherently dangerous about an unsecured gate, knowledge that children played in the cemetery raised a question of fact whether injury to a child was foreseeable:

“It is beyond dispute that landowners . . . have a duty to maintain their properties in [a] reasonably safe condition” … . “Consistent with that duty, the degree of care to be exercised must take into account the known propensity’ of children to roam and climb and play’ ” … . Indeed, “New York State courts have recognized the special propensities of children and the prevailing social policy of protecting them from harm’ . . . and have not deprived them of a right to compensation for injuries caused by the negligence of third parties . . . solely on account of their misuse of an instrument found on the defendant’s premises” … . “What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” … .

* * * “[A]t least once it is known that children commonly play around . . . an artificial structure [such as the gate], their well-known propensities . . . to climb about and play’ . . . create a duty of care on the part of a landowner to prevent foreseeable risks of harm that might arise out of those activities” … .

Given that, “as a matter of law, [ riding’ a gate] is not such an extraordinary’ form of play as to break the causal connection between the dangerous condition . . . and plaintiff’s injuries,” we conclude that there is a triable issue of fact whether “[i]t was a natural and foreseeable consequence of defendant’s failure to effectively secure the [gate] against access that young children would play [on it],” thereby resulting in injury … . Charles v Village of Mohawk, 2015 NY Slip Op 03975, 4th Dept 5-8-15

 

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Injury While Trying to Pick Up a Fallen 3000 Pound Roll of Paper Was a Foreseeable Consequence of an Alleged Equipment Defect Which Caused the Roll to Fall

The Fourth Department determined the summary judgment motion of the defendants—manufacturers and modifiers of a pallet truck—was properly denied.  The complaint alleged the pallet truck and the roll cradle with which the pallet truck was modified were defective, causing a 3000 pound roll of paper to fall off the truck.  Plaintiff was severely injured while trying to lift the fallen roll.  The defendants’ arguments that any defects in the pallet truck and roll cradle were not the proximate cause of the injury, and the attempt to pick up the fallen roll was the superseding cause of the injuries, were rejected. The court determined the cause of the injury was within the class of foreseeable hazards associated with a fallen roll and the risk of the intervening act (lifting the fallen roll) was the same risk that renders the actor negligent:

“As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions” … . Where the cause of an accident is “within the class of foreseeable hazards that [a] duty exists to prevent, the [defendant] may be held liable, even though the harm may have been brought about in an unexpected way” … . We conclude that the hazard that caused plaintiff’s injury, i.e., the movement of the roll while it was being placed back in an upright position, was “within the class of foreseeable hazards” associated with a roll falling off the allegedly defective pallet truck …, and thus a jury “could rationally [find] that . . . there was a causal connection between [defendants’ alleged] negligence and plaintiff’s injuries” … . We thus reject the contention of defendants that the falling roll merely “furnished the occasion” for plaintiff’s accident.

We also reject the contention of defendants that the actions of plaintiff and his coworkers in attempting to upright the roll were a superseding cause of plaintiff’s injuries. “An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act is the very same risk which renders the actor negligent” … . As noted above, the risk of the roll falling while being uprighted is the same risk underlying plaintiffs’ allegations of negligence, and we conclude that the actions of plaintiff and his coworkers were not “of such an extraordinary nature” as to relieve defendants of liability … . Ard v Thompson & Johnson Equip. Co., Inc., 2015 NY Slip Op 03985, 4th Dept 5-8-15

 

Tenant’s Common Law Duty to Keep Sidewalk on the Premises Safe Applies Even Though Another Party Agreed to Maintain the Sidewalk in Its Lease

The First Department noted that a tenant has a common law duty to keep a sidewalk on the leased premises safe, even if another party is obligated to maintain the sidewalk in its lease. Plaintiff slipped and fell on ice on the sidewalk:

It is well established that a tenant owes a common-law duty of reasonable care to maintain the demised premises in a reasonably safe condition, independent of any obligation that might be imposed by the existence of a lease … . The fact that nonparty C.L.B. #6 Inc. (CLB#6) was required to maintain the sidewalk under its lease with the landlord is irrelevant to CLB’s common-law duty to maintain the demised premises … . Additionally, whether a gas station was also a tenant of the premises is also irrelevant to CLB’s duty … . Because CLB never produced the lease between itself and CLB#6, which might reflect whether the subject sidewalk was part of the demised premises, it failed to establish prima facie that it owed no duty to maintain the subject sidewalk … . Williams v Esor Realty Co, 2014 NY Slip Op 03343, 1st Dept 5-8-14

 

1/2 to 3/4 Inch Defect in Sidewalk Not Trivial As a Matter of Law

In denying defendant’s motion for summary judgment on the ground that the 1/2 to 3/4 defect in the sidewalk (which extended across two adjoining slabs) where plaintiff tripped and fell was trivial, the Fourth Department explained the relevant criteria: “[W]hether a dangerous or defective exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Although “in some instances . . . the trivial nature of the defect may loom larger than another element[,] . . . [a] mechanistic disposition of a case based exclusively on the dimension of the [pavement] defect” is inappropriate … . Thus, a determination whether a particular defect is actionable requires examination of “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . Greco v City of Buffalo, 2015 NY Slip Op 03966, 4th Dept 5-8-15

 

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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

 

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There Is No Blanket Prohibition Against Relying on the Doctrine of Res Ipsa Loquitur in a Medical Malpractice Case

In affirming the denial of summary judgment to the defendant in a medical malpractice case, the Third Department noted that plaintiff is not precluded from relying on the doctrine of res ipsa loquitur in a medical malpractice action.  Here it is was alleged the improper insertion of an IV damaged a nerve: “While the proof adduced at trial ultimately may be insufficient to establish the required elements of res ipsa loquitur …, thereby rendering the submission of such a charge to the jury unwarranted …, there is no blanket prohibition upon invoking this doctrine in the context of a medical malpractice action … .  Weeks v St. Peter’s Hosp., 2015 NY Slip Op 03909, 3rd Dept 5-7-15

 

Allegation Plaintiff Driver Stopped Suddenly for No Reason Raised a Question of Fact About Whether the Driver Who Struck Plaintiff’s Vehicle from Behind Was Negligent

The Second Department determined defendant driver (Catania) whose vehicle struck plaintiff’s vehicle from behind had raised a question of fact about whether there was a non-negligent explanation for the collision.  Defendant alleged plaintiff stopped suddenly for no reason:

The Supreme Court erred in granting the plaintiff’s motion for summary judgment on the issue of liability. Although the plaintiff’s affidavit in support of the motion demonstrated that his vehicle was struck in the rear, thus raising an inference of Catania’s negligence, the plaintiff’s submissions, which included a transcript of Catania’s deposition testimony, revealed a triable issue of fact as to whether Catania had a nonnegligent explanation for the collision. Catania testified at his deposition that his vehicle was stopped at a traffic light at a distance of approximately eight feet behind the plaintiff’s vehicle. When the light changed to green, Catania maintained a safe distance between the two vehicles, but the plaintiff came to an abrupt stop for no apparent reason when there was no pedestrian or vehicular traffic in front of it, and the two vehicles collided. Under these circumstances, a triable issue of fact exists… . Fernandez v Babylon Mun Solid Waste, 2014 NY Slip Op 03230, 2nd Dept 5-7-14

 

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

 

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