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Plaintiff, a Pedestrian, Was Injured When a Traffic Sign Struck by a Car Broke Off and Hit Her—County Owed Plaintiff a Duty to Properly Install the Sign—Question of Fact Raised Whether Improper Installation of a “Break Away” Sign Was a Proximate Cause of the Plaintiff’s Injuries

The Fourth Department determined the County had a duty to properly install traffic signs and that duty extended to plaintiff, a pedestrian severely injured when a traffic sign broke off and hit her after the sign post was struck by a car. The court further determined that a question of fact had been raised about whether any negligence in installing the sign was a proximate cause of plaintiff’s injuries:

“The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors” … . “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract … . An exception applies where the contracting party has ” entirely displaced the other party’s duty to maintain the premises safely’ ” … . Here, we conclude that the County’s duty to plaintiff arose from its comprehensive agreement with the City inasmuch as, pursuant to that agreement, the County has entirely displaced the City in fulfilling the City’s duty to be responsible for traffic signs … . Specifically, the County had a duty to properly reinstall the sign in October 1999, including using proper materials, installing the sign’s post at the appropriate depth in the ground on a proper base, and placing the sign at the required distance from the roadway. Moreover, that duty “extend[ed] to noncontracting individuals[, such as nearby pedestrians,] reasonably within the zone and contemplation of the intended [traffic engineering] services” encompassed by the County’s agreement with the City … .

…”[I]t is well settled that there may be more than one proximate cause of [an] accident” … . …[P]laintiff’s … expert raised an issue of fact … . Plaintiff’s expert opined in his opposing affidavit that the County improperly installed a breakaway signpost and that the accident would not have occurred but for that improper installation. Plaintiff’s expert also opined that the County’s negligence in installing the sign was a substantial factor in causing plaintiff’s injuries. Specifically, he opined that, had the sign been properly placed, it would not have struck plaintiff because its placement one foot above the ground created a risk that the sign would become a high-flying projectile if hit, rather than bending or projecting closer to the ground. We conclude that the court properly denied the County’s motion because the submission of conflicting expert opinions “present[ed] issues of credibility to be determined by the trier of fact” … . Honer v McComb, 2015 NY Slip Op 02662, 4th Dept 3-27-15

 

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Despite Broad General Language, the Release Applied Solely to the Property-Damage Claim Referenced In It and Not to Plaintiff’s Personal Injury Action

The Fourth Department determined Supreme Court should not have dismissed a complaint based upon a release signed by the plaintiff. The release related only to the particular property damage claims referenced in the document—despite broad prefatory language:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained in a motor vehicle accident. She had previously commenced an action in Rochester City Court seeking $4,741.04 for property damage to her vehicle. In consideration of that sum, plaintiff signed a release in favor of, inter alia, defendant Zacharey A. Taylor (defendant), releasing him from “all actions, causes of action . . . claims and demands whatsoever” that plaintiff “ever had” against defendant “from the beginning of the world to the day of the date of this RELEASE. And more particularly for any and all property damage claims as a result of [the subject] motor vehicle accident.”

We conclude that Supreme Court erred in granting defendant’s motion to dismiss the complaint against him in the instant action pursuant to CPLR 3211 (a) (5) based upon the release. “The meaning and scope of a release must be determined within the context of the controversy being settled” … , and “a release may not be read to cover matters which the parties did not desire or intend to dispose of” … . “Moreover, it has long been the law that where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby” … . Here, viewing the release in the context of the controversy being settled and in light of the specific reference to plaintiff’s property damage claims, we conclude that the parties intended that plaintiff release only such property damage claims … . Corzatt v Taylor, 2015 NY Slip Op 02621, 4th Dept 3-27-15

 

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Questions of Fact Raised Whether Plaintiff’s Infant-Daughter’s Physical and Mental Deficiencies Were Caused by Inadequate Medical Treatment Prior to and During Birth, Despite Indications Plaintiff’s Daughter Was Born Healthy

The First Department, in a full-fledged opinion by Justice Acosta, reversed Supreme Court and denied defendant’s motion for summary judgment in a medical malpractice case.  The First Department laid out in great detail the plaintiff-mother’s experts’ opinions about the causes of the her infant-daughter’s (Kailen’s) mental and physical deficiencies and determined questions of fact had been raised about the adequacy of medical treatment prior to and during Kailen’s birth, in spite of indications of Kailen’s good health at the time of birth:

A defendant in a medical malpractice action establishes prima facie entitlement to summary judgment by showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff’s alleged injuries … . Once a defendant meets that burden, the plaintiff must rebut the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged … .

Generally, “the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants” … . To defeat summary judgment, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … .

Here, in opposition to defendant’s motion for summary judgment, plaintiff raised triable issues of fact as to both departure from good and accepted medical practice and causation. * * *

Contrary to defendant’s assertion, plaintiff’s medical evidence was sufficient to defeat summary dismissal of the complaint. Defendant’s argument that plaintiff’s experts failed to rebut its contention that, in the absence of any signs or symptoms of permanent neurological injury at or near the time of Kailen’s birth, there is no medical basis for connecting her current condition with the “circumstances of the labor and delivery,” is unavailing. Dr. Adler’s assertions that brain injuries at the time of birth can be diagnosed based on observations over time contradict defendant’s contention. In addition, a report prepared by Dr. Joseph Carfi, dated March 21, 2012, based on his physical examination of Kailen, and medical records, including those from defendant and the Center for Congenital Disorders, notes that Kailen was diagnosed at the Center for Congenital Disorders on May 23, 1996, when she was five months old, with microcephaly, and mild developmental delay. By 2012, she suffered significant mental retardation with developmental delays and lack of age appropriate personal independence. Her impairments are permanent and preclude her from living alone as an adult. Thus, although Kailen had excellent Apgar scores and otherwise appeared normal at birth, plaintiff nonetheless raised triable issues of fact as to causation … . Anyie B. v Bronx Lebanon Hosp., 2015 NY Slip Op 02576. 1st Dept 3-26-15

 

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Plaintiff’s Motion to Appoint a Temporary Administrator after Defendant’s Death Properly Denied—Relevant Law Explained

In affirming the denial of plaintiff’s motion to appoint a temporary administrator after the defendant in a lead-paint action had died, the Second Department explained the relevant law:

“If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties” (CPLR 1015[a]…). “A motion for substitution may be made by the successors or representatives of a party or by any party” (CPLR 1021…). “Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent” … .

In most instances a personal representative appointed by the Surrogate’s Court should be substituted in the action to represent the decedent’s estate … . However, in the event no such representative exists, an appropriate appointment may be made by the Supreme Court and that individual may be substituted in place of the decedent … . Indeed, “[t]he Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and may do so to avoid delay and prejudice in a pending action” … . The determination of whether to exercise its authority to appoint a temporary administrator is committed to the sound discretion of the Supreme Court, and will not be disturbed by this Court so long as the determination does not constitute an improvident exercise of discretion … .

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion, inter alia, to appoint a temporary administrator (see CPLR 1015[a]…). Although in most instances the personal representative of the decedent’s estate should be substituted, here, the plaintiff failed to demonstrate what steps she had taken to secure the appointment of a personal representative in the appropriate Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible … . Furthermore, the plaintiff did not contend that this action, which is based on events occurring nearly 20 years ago, was trial-ready … . Under the circumstances presented here, the plaintiff failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice. Lambert v Estren, 2015 NY Slip Op 02454, 2nd Dept 3-25-15

 

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Plaintiff Struck by Sled—Village Immune from Liability Under General Obligations Law

The Second Department determined the lawsuit against a village was properly dismissed.  Plaintiff was standing at the bottom of a hill when struck by someone who was sledding.  The hill had long been used for sledding:

The defendant (village) established as a matter of law that it was immune from liability pursuant to General Obligation Law § 9-103, which applies “to private as well as government landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities” …, including undeveloped areas of public parks (see Myers v State, 11 AD3d 1020, 1021). This statute also applies to a person who is injured when other individuals engaged in an enumerated recreational activity collide with the injured plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact … . Vannatta v Village of Otisville, 2015 NY Slip Op 02469, 2nd Dept 3-25-15

 

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Question of Fact Whether Board of Education Liable for Negligent Supervision of Violent Student

The Second Department determined questions of fact existed re: whether the school had notice of a student’s propensity for violent behavior.  The student allegedly held plaintiff partially outside a fourth-floor window at the school. The court noted that the city was not a proper party to the suit:

“Schools 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” … . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Actual or constructive notice to the school of prior similar conduct generally is required, and “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence” … . A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained … .

Here, in support of their motion for summary judgment, the defendants failed to establish, prima facie, that the Board of Education lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the injury … . The defendants’ motion papers reflect the existence of triable issues of fact as to whether the Board of Education had knowledge of the offending student’s dangerous propensities arising from his involvement in other altercations with classmates in the recent past … . Thus, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action sounding in negligent supervision insofar as asserted against the Board of Education.  Mathis v Board of Educ. of City of New York, 2015 NY Slip Op 02459, 2nd Dept 3-25-15

 

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County Has a Duty to Protect Jail Inmates from the Foreseeable Assaults by Other Inmates

The Fourth Department explained the law concerning when a municipality may be liable for an assault by one inmate (in county jail) upon another.  The court also noted that, absent a local law to the contrary, the county may not be held vicariously liable for the actions of the county sheriff or sheriff’s deputies:

We agree with plaintiff … that the court erred in granting defendant’s motion and dismissing the complaint in its entirety on the ground that it owed no duty of care to plaintiff, who was being held in jail on a pending criminal charge at the time of the assaults. It is well settled that “[a] municipality owes a duty to inmates in correctional facilities to safeguard them from foreseeable assaults [by] other inmates” … . “[T]his duty does not render the municipality an insurer of inmate safety, and negligence cannot be established by the mere occurrence of an inmate assault . . . Rather, the scope of the [municipality’s] duty to protect inmates is limited to risks of harm that are reasonably foreseeable’ ” … . We therefore modify the order… by … reinstating that part of the first cause of action alleging that defendant breached the duty it owed to plaintiff to protect him from foreseeable assaults committed by other inmates. Villar v County of Erie, 2015 NY Slip Op 02229, 4th Dept 3-20-15

 

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No Notice of Claim Requirement for Suit Against Sheriff/Sheriff Can Be Liable for Negligently Training and Supervising Deputies/Whether Sheriff Entitled to Governmental Immunity Cannot Be Decided at the Pleading Stage

The Fourth Department determined no notice of claim need be filed in an action by an inmate against the county sheriff.  The court further determined the sheriff has a duty to keep prisoners safe, the sheriff can be liable for negligently training and supervising deputies who work at the jail, and the factual question whether the sheriff is entitled to governmental immunity could not be decided at the pleading stage:

Service of a notice of claim upon a public corporation is not required for an action against a county officer, appointee, or employee unless the county “has a statutory obligation to indemnify such person under [the General Municipal Law] or any other provision of law” (General Municipal Law § 50-e [1] [b]) and, here, Erie County has no statutory obligation to indemnify defendant. Plaintiff “was not required to file a notice of claim naming [defendant] in his official capacity prior to commencing” an action against defendant … .

We further conclude that the court erred in determining that defendant owed no duty of care to plaintiff. Pursuant to Correction Law § 500-c, a sheriff has a “duty to receive and safely keep’ prisoners in the jail over which he has custody” …, and plaintiff’s first cause of action is based on an alleged violation of that duty to him. A sheriff may also be held liable for negligent training and supervision of the deputy sheriffs who worked in the jail …, which forms the basis of plaintiff’s second cause of action.

We reject defendant’s contention that the court properly determined that he is immune from liability because his alleged negligence arises from discretionary acts for which he is entitled to governmental immunity. In the context of this CPLR 3211 motion, the issue whether defendant’s alleged acts of negligence “were discretionary and thus immune from liability is a factual question which cannot be determined at the pleading stage’ ” … . Villar v Howard, 2015 NY Slip Op 02232, 4th Dept 3-20-15

 

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Fraud Action Based Upon Statements of Opinion Properly Pled/Negligent Misrepresentation Not Properly Pled–No Allegation of Privity or Privity-Like Relationship

In an action stemming from defendant-investment-ratings-agency’s high rating of worthless residential-mortgage-backed securities, the Fourth Department determined the complaint properly pled a fraud cause of action, even though based upon statements of opinion. The court further determined the negligent misrepresentation cause of action was deficient in that privity or a privity-like relationship was not alleged:

Although statements of opinion generally are not actionable in a fraud cause of action …, defendant correctly recognizes that statements of opinion may nevertheless be actionable as fraud if the plaintiff can plead and prove that the holder of the opinion did not subjectively believe the opinion at the time it was made and made the statement with the intent to deceive … . As one court has explained, a fraud claim based on an expression of opinion “is actionable in an appropriate case not because the opinion is objectively’ wrong. Rather, in an appropriate case it is actionable because the speaker either did not in fact hold the opinion stated or because the speaker subjectively was aware that there was no reasonable basis for it . . . In the first instance, the speaker will have lied as to his or her subjective mental state. In the second, he or she implicitly would have represented that there was a reasonable basis for the statement of opinion, knowing that the implicit representation was false” … . Here, we agree with defendant that its credit ratings were statements of opinion, not fact … , but we conclude that plaintiff adequately pleaded that defendant did not believe its opinions when it issued the ratings. Plaintiff set forth in detail the reasons why defendant was aware that the ratings were inflated, including its allegation that defendant failed to follow its own policies and procedures in determining the ratings. * * *

To establish a claim for negligent misrepresentation based on the allegedly inaccurate credit ratings, plaintiff must allege that “(1) the [defendant] must have been aware that the [ratings] were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party . . . was intended to rely; and (3) there must have been some conduct on the part of the [defendant] linking [it] to that party . . . , which evinces the [defendant’s] understanding of that party[‘s] . . . reliance” … . “The indicia, while distinct, are interrelated and collectively require a third party claiming harm to demonstrate a relationship or bond with the once-removed [defendant] sufficiently approaching privity’ based on some conduct on the part of the [defendant]’ ” … .

The complaints here failed to plead that a special or privity-like relationship existed between plaintiff and defendant … . M&T Bank Corp. v McGraw-Hill Cos., Inc., 2015 NY Slip Op 02372, 4th Dept 3-20-15

 

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Cheerleader Assumed the Risk of Practicing with an Injured Teammate

The Fourth Department determined plaintiff’s daughter assumed the risk of practicing with a teammate who had a sprained ankle.  It was alleged that the injured teammate, because of the injury, held on to plaintiff’s daughter too long before throwing her into the air, which in turn caused plaintiff’s daughter to be injured:

It is well settled that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . We have previously held that cheerleading is the type of athletic endeavor to which the doctrine of assumption of the risk applies … . That doctrine does not, however, shield defendants from liability for exposing participants to unreasonably increased risks of injury … . * * *

We agree with defendant that the daughter’s practicing with the teammate while knowing that the teammate had an injured ankle is analogous to a cheerleader practicing without a mat …, or to an athlete playing on a field that is in less than perfect condition … . We therefore conclude that defendant established as a matter of law that this action is barred by the doctrine of assumption of risk, and plaintiff failed to raise an issue of fact … . Jurgensen v Webster Cent. Sch. Dist., 2015 NY Slip Op 02377, 4th Dept 3-20-15

 

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