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School Failed to Demonstrate Assault on Student Was Unforeseeable—Summary Judgment Properly Denied

The Second Department determined the defendant school district was not entitled to summary judgment because it failed to demonstrate the alleged assault on another student was unforeseeable:

“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, the third-party acts could reasonably have been anticipated … .

Here, in support of that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision, the District failed to establish, prima facie, that the alleged assault was an unforeseeable act or that it had no actual or constructive notice of prior conduct similar to the subject incident … . Cruz v Brentwood Union Free Sch Dist, 2015 NY Slip Op 01604, 2nd Dept 2-25-15

 

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“Independent Contractor Rule”

The Second Department noted the general rule that one who hires an independent contractor will not be liable for the contractor’s negligence:

“As a general rule, one who hires an independent contractor may not be held liable for the independent contractor’s negligent acts” … . Here, the defendant established, prima facie, that the alleged negligence was committed solely by an independent contractor and that, by reason of the above-described “independent contractor rule,” it could not be held liable … Braun v Star Community Publ Group LLC, 2015 NY Slip Op 01599, 2nd Dept 2-25-15

 

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“To a Reasonable Degree of Medical Probability” Properly States the Standard for Expert Opinion on Proximate Cause

The Second Department noted that it was sufficient that the expert stated there was “a reasonable degree of medical probability” plaintiff’s injury was caused by the accident:

The usual language is “to a reasonable degree of medical certainty,” but the phrase “degree of medical certainty” has been deemed sufficient (see Matott v Ward, 48 NY2d 455, 459). In Matott, the Court of Appeals held that the relevant inquiry is “whether it is reasonably apparent’ that the doctor intends to signify a probability supported by some rational basis'” (id. at 461 …). Here, the phrase “reasonable degree of medical probability” satisfied that standard. It should also be noted that that language is the statutory standard in New Jersey for determining if there is sufficient evidence of serious injury to sue for noneconomic loss (NJ Stat § 39:6A-8[a]…). Further, [the expert] explained the foundation for his opinion, noting that the plaintiff initially appeared at an early stage of his condition immediately after the accident, and that his condition progressed thereafter … . Thus, his opinion was supported by a rational basis … . Kahvejian v Pardo, 2015 NY Slip Op 01612, 2nd Dept 2-25-15

 

Summary-Judgment Proof Requirements for a Defendant in a Slip and Fall Case Explained (Again)–Not Met Here

The Second Department, reversing Supreme Court, again stated the summary-judgment proof requirements for a defendant in a slip and fall case:

In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition … . To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it … . To meet its burden on the issue of constructive notice, a defendant “must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice … . Arcabascia v We”re Assoc Inc, 2015 NY Slip Op 01595, 2nd Dept 2-25-15

 

Owner of Restaurant Not Liable for Parking-Lot Assault on Plaintiff by Another Patron

In finding summary judgment should have been granted to the defendant bar/restaurant, the Second Department explained the analytical criteria re: liability for the assault by one patron upon another.  A verbal dispute erupted inside the restaurant and plaintiff was struck as the dispute continued in the parking lot:

“Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property” … . “However, 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” … .

The defendant established his prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action with evidence demonstrating that he could not have reasonably prevented the unforeseeable and unexpected assault upon the injured plaintiff … . Hegerty v Tracy, 2015 Slip Op 001415, 2nd Dept 2-18-15

 

Parking Lot Concrete Wheel Stop Not a Dangerous Condition

The Second Department noted that a concrete wheel stop in a Costco parking lot is “open and obvious” and is not a dangerous condition.  Costco leased the parking lot from the out-of-possession owner:

While Costco had a duty to maintain the premises in a reasonably safe manner … , there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally ” [a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm'” … .

Here, Costco established its prima facie entitlement to judgment as a matter of law by showing that the wheel stop over which the plaintiff tripped and fell, which was cement-colored in contrast to the color of the pavement to which it was affixed, was not an inherently dangerous condition and was readily observable by those employing the reasonable use of their senses … . Miller v Costco Wholesale Corp, 2015 NY Slip Op 01429, 2nd Dept 2-18-15

Defendant Did Not Demonstrate the Absence of Constructive Notice of the Condition Alleged to Have Caused Plaintiff to Fall–Defendant Therefore Not Entitled to Summary Judgment

The Second Department determined defendant in a slip and fall case was not entitled to summary judgment because it did not demonstrate its lack of constructive notice of the condition (glass debris):

A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant’s employees to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendants did not proffer any evidence demonstrating when the area where the plaintiff fell was last cleaned or inspected prior to the plaintiff’s accident and, thus, failed to eliminate all triable issues of fact with regard to their contention that they lacked constructive notice of the glass debris … . The defendants’ failure to establish their prima facie entitlement to judgment as a matter of law required the denial of their motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Santiago v HMS Host Corp, 2015 NY Slip Op 01437, 2nd Dept 2-18-15

 

Property Owner and Snow Removal Contractor Should Have Been Awarded Summary Judgment in Snow/Ice Slip and Fall Case—Analytical Criteria Explained

The Second Department determined the defendant property owner and defendant snow-removal contractor should have been awarded summary judgment in a slip and fall case.  The court outlined the criteria for both causes of action:

” A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence'” … . Thus, to establish its prima facie entitlement to judgment as a matter of law, a property owner defendant moving for summary judgment is required to establish, prima facie, that it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall … . Here, … [the property owner] … established its prima facie entitlement to judgment as a matter of law by submitting the transcripts of the deposition testimony of … a maintenance supervisor, and … the snow removal contractor, which established, prima facie, that [the property owner] did not have actual or constructive notice for a sufficient length of time to discover and remedy the ice condition which allegedly caused the plaintiff to fall… . * * *

“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” … . “However, in Espinal v Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, or (3) where the contracting party has entirely displaced another party’s duty to maintain the subject premises safely” … .

Here, the plaintiff alleged [the snow-removal contractor] created the dangerous condition that caused her to slip and fall and, thus, launched a force or instrument of harm. In support of its motion, [the contractor] established, prima facie, that it did not create the allegedly dangerous condition which caused the plaintiff’s fall … . In opposition …, the plaintiff and [the property owner] failed to raise a triable issue of fact as to whether [the contractor] created or exacerbated the alleged hazardous condition … . The affidavit of the plaintiff’s expert as to the origin of the hazardous condition was speculative and conclusory and, thus, insufficient to defeat a motion for summary judgment … . Scott v Avalonbay Communities Inc, 2015 NY Slip Op -1438, 2nd Dept 2-18-15

 

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Criteria for Common Law Indemnification Explained (Not Met Here)—Property Owner Could Not Seek Indemnification from Independent Contractor Re: Dangerous Condition on the Property

In the context of a personal injury action based upon a dangerous condition, the Second Department explained the criteria for common law indemnification.  Here the dangerous condition was on property built by an independent contractor, Ambrosio, and owned by Wincoma.  Wincoma did not demonstrate it met the criteria for seeking indemnification from Ambrosio:

“The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “If . . . an injury can be attributed solely to negligent performance or nonperformance of an act solely within the province of [a] contractor, then the contractor may be held liable for indemnification to an owner” … . A party that has actually participated in the wrongdoing is not entitled to indemnification … .

Here, the record demonstrates that Wincoma, the owner of the property where the subject incident occurred, had actual and constructive notice of the allegedly defective condition which caused the plaintiff’s injuries … . Moreover, the record shows that the injury cannot be attributed solely to the negligent performance or non-performance of an act solely within the province of Ambrosio, which was an independent contractor … . Ambrosio built the subject structure approximately one year prior to the accident, the structure was built pursuant to specifications provided by Wincoma, and the record shows that those specifications were not “patently defective” … . Consequently, Wincoma could not be entitled to common-law indemnification from Ambrosio for any damages that may be assessed against it in this action … . Rappel v Wincoma Homeowners Assn, 2015 NY Slip Op 01434, 2nd Dept 2-18-15

 

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Jury’s Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff’s Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged

The Second Department noted that the issue whether the jury’s conclusion that the school district negligently supervised students who assaulted plaintiff but that the negligent supervision was not the proximate cause of plaintiff’s injuries was not preserved for appeal because no objection to the verdict was raised before the jury was discharged.  The court further noted that the jury’s conclusion was based upon a fair interpretation of the evidence (and therefore did not constitute an inconsistent verdict):

The plaintiffs contend that the jury verdict finding that the defendant … School District … negligently supervised certain students who assaulted the plaintiff …, but that such negligence was not a proximate cause of his injuries, is inconsistent and contrary to the weight of the evidence. Since the plaintiffs did not raise the issue of the claimed inconsistent jury verdict before the jury was discharged, that issue is not preserved for appellate review … . Contrary to the plaintiffs’ further contention, the jury verdict was not against the weight of the evidence. The jury’s finding that, while the School District negligently supervised these students, such negligence was not a proximate cause of [plaintiff’s] injuries, was based on a fair interpretation of the evidence… . LaMacchia v City of New Rochelle, 2015 NY Slip Op 01422, 2nd Dept 2-18-15

 

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