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Questions of Fact Re: Whether Municipality Created the Dangerous Condition Thereby Negating the Written-Notice Requirement

The Second Department determined questions of fact existed whether the village created the dangerous sidewalk condition, thereby eliminating the written-notice prerequisite to a lawsuit:

A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies … . Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … .

Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition … . The Village failed to do so. Monaco v Hodosky, 2015 NY Slip Op 02735, 2nd Dept 4-1-15

 

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Written Notice Prerequisite to Suit Against County Did Not Apply to Plaintiff’s Being Struck by a Traffic Signal Cable While Walking on a Sidewalk

The Second Department determined the written notice requirement for liability did not apply.  Plaintiff alleged she felt an electric shock and was struck by an cable as a nearby traffic signal was being worked on:

…[T]he plaintiff was not required to show that they received prior written notice of the alleged condition pursuant to Nassau County Administrative Code § 12-4.0(e). This provision requires prior written notice of any defective or dangerous “sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter.” Here, the condition that allegedly caused the injury is an electrical condition involving a traffic signal, or a traffic signal box and related cable. The subject Nassau County Administrative Code provision does not require prior written notice of that condition … . Moreno v County of Nassau, 2015 NY Slip Op 02736, 2nd Dept 4-1-15

 

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City Properly Held Liable for Failure to Address Excessive Speeding on Road Where Infant Plaintiff Was Struck—A Proprietary, Not a Governmental, Function Was Involved—The Doctrine of Qualified Immunity Did Not Apply Under the Facts

In upholding the jury’s finding the city liable for not addressing excessive speeding on the road where infant plaintiff was struck by a car and seriously injured, the Second Department explained the city’s liability for proprietary versus governmental functions and the inapplicability of the qualified immunity doctrine:

When a negligence cause of action is asserted against a municipality, the court must first decide whether the municipal entity was engaged in a proprietary function or was acting in a governmental capacity at the time the claim arose … . If the municipality’s activities are proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties … . By contrast, if the municipality was exercising a nondiscretionary governmental function, it will not be held liable unless it owed a “special duty” to the injured party … .

Here, the plaintiffs alleged, among other things, that the City was negligent in that it received numerous complaints that vehicles were speeding and racing along the entire length of Gerritsen Avenue, but completely failed to conduct a proper and adequate study of this speeding problem, and failed to implement a reasonable plan to control or resolve the dangerous condition presented on the roadway. Since a municipality’s duty to keep its roads and highways in a reasonably safe condition is proprietary in nature …, the City’s contention that it cannot be held liable under the plaintiffs’ theory absent the existence of a “special duty” to the infant plaintiff must be rejected … .

The City’s argument that the causes of action asserted against it must be dismissed because it is entitled to immunity is also without merit. In the field of traffic design engineering, a municipality is accorded qualified immunity from liability arising out of its highway planning decisions … . The doctrine of qualified immunity, however, will only apply where the municipality has conducted a study which ” entertained and passed on the very same question of risk'” … as was alleged by the plaintiff. Indeed, a municipality may be held liable if, “after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition” … . Moreover, after a municipality implements a traffic plan, “it is under a continuing duty to review its plan in the light of its actual operation'” … . * * *

Considering the testimony and documentary evidence presented, there was a rational process by which the jury could have found that the City had notice that excessive speeding along the length of Gerritsen Avenue created a dangerous condition and that the City failed, in response to the complaints it received, to conduct a study which ” entertained and passed on [this] very same question of risk'” … posed by excessive speeding along Gerritsen Avenue. As such, the doctrine of qualified immunity does not apply … . Turturro v City of New York, 2015 NY Slip Op 02754, 2nd Dept 4-1-15

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Defect Properly Deemed Trivial as a Matter of Law

The Second Department determined a 1/2 inch depression was properly deemed trivial as a matter of law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial as a matter of law, the court must examine all 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” … .

* * * The evidence submitted by the moving parties—including the plaintiff’s testimony describing the depression in the asphalt abutting the metal plate as being one-half inch deep—established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable… . Palladino v City of New York, 2015 NY Slip Op 02737, 2nd Dept 4-1-15

 

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Town Failed to Show Routine Inspection of Sewer System—Summary Judgment in Sewer-Backup Case Properly Denied

The Second Department determined the town was not entitled to summary judgment in a case alleging the failure to maintain the town’s sewer system.  The court explained the relevant analytical criteria:

A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” … . However, a municipality “is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature”… . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no ” notice of a dangerous condition,'” and that “it regularly inspected and maintained the subject sewer line” … .

Here, the defendant Town …, failed to establish, prima facie, that it regularly inspected and maintained the subject sewer lines … . The evidence submitted by the Town in support of its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it demonstrated that the subject sewer lines had not been inspected more recently than approximately 19 months prior to the date of the sewage backup into the plaintiffs’ residence … . Under these circumstances, the Town failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 2015 NY Slip Op 02719, 2nd Dept 4-1-15

 

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No Liability to Third Party Stemming from Contract to Install a Sign

The Second Department determined the plaintiff’s verdict in a slip and fall case was properly set aside.  Plaintiff tripped on a sign that had fallen and was covered by snow.  The evidence did not demonstrate the sign company (Everlast) “launched an instrument of harm” so as to trigger tort liability in favor of a third party arising from a contract.  The analytical criteria were explained:

” [A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party'” … . The Court of Appeals has recognized three exceptions to this rule …, only one of which is pertinent to this case. Under that exception, a party who enters into a contract to render services may be liable in tort to a third party “where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm'” … .

Here, there was no rational process by which the jury could have found that Everlast launched a force or instrument of harm … . In that respect, there was no direct evidence that Everlast was negligent in installing the sign seven months before the accident. Further, there was no rational process by which the jury could have found in favor of the plaintiff based upon circumstantial evidence, since the plaintiff failed, as a matter of law, to demonstrate that it was “more likely or more reasonable that the alleged injury was caused by the defendant’s negligence than by some other agency” … . Robinson v Limoncelli, 2015 NY Slip Op 02745, 2nd Dept 4-1-15

 

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Tenant Has Duty to Keep Premises Reasonably Safe

The Second Department noted that a tenant (TJX) has an obligation to keep the premises safe even if the landlord agreed in the lease to keep the premises in good repair.  Here it was alleged that water dripping from a fire escape resulted in an icy area on the abutting sidewalk where plaintiff fell:

“A tenant has a common-law duty to remove dangerous or defective conditions from the premises it occupies, even though the landlord may have explicitly agreed in the lease to maintain the premises and keep them in good repair” … . Here, TJX failed to establish, prima facie, that it had no duty to maintain the fire escape in a reasonably safe condition … . Sellitti v TJX Cos., Inc., 2015 NY Slip Op 02748, 2nd Dept 4-1-15

 

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City Immune from Liability for Actions of Police Engaged in a Governmental Function–No Special Relationship with Plaintiff

The Second Department determined the police officers were engaged in a governmental function and there was no special relationship between the city and the plaintiff. The city was therefore immune from liability.  Plaintiff called the police when he saw someone (Moran) enter a residence.  When the police arrived plaintiff accompanied them to the residence.  Moran ran from the house and punched plaintiff. Plaintiff’s lawsuit alleged the police failed to protect him:

…[T]he officers’ conduct during the incident constituted a governmental function … . “Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created” … . Therefore, the City cannot be held liable unless there existed a special relationship between it and the plaintiff … . “The elements of this special relationship are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Here, the City made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that no such special relationship existed which would give rise to a duty of care to the plaintiff individually … . The evidence submitted by the City demonstrated that the police officers were performing their general duty to the public at large by responding to a call regarding a completed crime, and in the course of the investigation, made no promises to the plaintiff, in word or action, that gave rise to an affirmative duty of care running to the plaintiff personally. In opposition, the plaintiff failed to raise a triable issue of fact. Philip v Moran, 2015 NY Slip Op 02742, 2nd Dept 4-1-15

 

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Criteria for Liability for Lead Paint Exposure Described

Reversing Supreme Court, the Second Department determined defendants in a lead paint case failed to demonstrate they did not have notice of the dangerous condition.  The court explained the relevant criteria:

Under New York common law, a landowner “has a duty to maintain his or her premises in a reasonably safe condition” … . “[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” … . Constructive notice of a hazardous lead-based paint condition may be established by proof “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” … . Greene v Mullen, 2015 NY Slip Op 02729, 2nd Dept 4-1-15

 

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Plaintiff’s Allegations of Injuries in the Bill of Particulars Were Not So Broad as to Constitute a Waiver of the Physician-Patient Privilege for Plaintiff’s Entire Medical History

The Fourth Department determined plaintiff’s allegations of injuries in the bill of particulars was not so broad as to place plaintiff’s entire medical history in controversy:

In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy” … . Indeed, that waiver ” does not permit wholesale discovery of information regarding [plaintiff’s] physical and mental condition’ ” … . Contrary to defendants’ contention, the allegations in the bill of particulars that plaintiff sustained “serious and permanent injuries, including: toxic keratitis; bilateral corneal abrasions; severe bilateral photophobia; impaired vision; decrease in vision; need for corneal transplants; loss of enjoyment of life; disability; and pain and suffering” “do not constitute such broad allegations of injury’ that they place plaintiff’s entire medical history in controversy” … . The court properly conducted an in camera review to redact irrelevant information …, and properly limited disclosure to the “conditions affirmatively placed in controversy” … . Reading v Fabiano, 2015 NY Slip Op 02634, 4th Dept 3-27-15

 

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