You are here: / Negligence
, ,

Pulling Into Traffic Without Activating Lights and Siren Did Not Constitute Reckless Disregard for the Safety of Others

The Third Department determined the vehicle accident was not the result of “reckless disregard for the safety of others” (vehicle and Traffic Law 1104) on the part of a police officer responding to an emergency.  Apparently the officer (Derkowski) had just began a pursuit and was pulling into traffic without his lights or siren activated when the collision occurred:

Derkowski intended to pursue a fleeing suspect in his patrol car, a pursuit that gained additional urgency when he spotted the suspect driving north on Lafayette Street (cf. Muniz v City of Schenectady, 38 AD3d at 991). Prior to turning onto the street in order to follow the suspect, Derkowski looked in both directions to ensure that no traffic was coming. His view of the southbound lane was obscured, however, by several illegally parked vehicles. Derkowski then turned left onto the street and collided with plaintiff. Derkowski did not activate his emergency lights or siren prior to turning, and plaintiff testified that it did not appear that Derkowski had his headlights on. Inasmuch as the pursuit had just commenced and Derkowski checked for oncoming traffic before turning, his failure to have lights and sirens on constituted nothing more than “a momentary lapse in judgment not rising to the level of ‘reckless disregard for the safety of others'” … . Rouse-Harris v City of Schenectady Police Dept, 2015 NY Slip Op 00591, 3rd Dept 1-22-15

 

,

Supreme Court Should Not Have Ordered a Unified (Liability and Damages) Trial–Criteria Explained in Some Depth

The Second Department determined Supreme Court should not have granted plaintiff’s motion for a unified trial on liability and damages because the plaintiff had not demonstrated that the nature of his injuries had an important bearing on the issue of liability. Plaintiff, who was driving a golf cart,  was injured when he allegedly swerved to avoid defendant’s on-coming golf cart.  The court explained the relevant analytical criteria in some depth:

“In furtherance of convenience or to avoid prejudice [a] court . . . may order a separate trial of any claim, or of any separate issue” (CPLR 603). Furthermore, “[a] court may determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue” (CPLR 4011). These statutory provisions simply confirm that “the broad common-law powers of New York judges over conduct in their own courtrooms have been continued and have not been eliminated or impinged upon by any of the explicit CPLR provisions.”… .

“Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” (22 NYCRR 202.42[a]…). “As a general rule, questions of liability and damages in a negligence action represent distinct and severable issues which should be tried and determined separately” … .

“The decision whether to conduct a bifurcated trial rests within the discretion of the trial court, and should not be disturbed absent an improvident exercise of discretion” (…see CPLR 603, 4011). Unified trials should only be held “where the nature of the injuries has an important bearing on the issue of liability” … . However, even where a trial is bifurcated, some evidence of injuries may nevertheless be admitted, in the trial court’s discretion, to establish liability at the liability phase of the trial, so long as such evidence is probative of liability and accompanied by “an appropriate limiting instruction” … .

Accordingly, when exercising its discretion in deciding whether to conduct a unified trial or a bifurcated trial, a court should determine whether the nature of the alleged injuries is probative of the issue of liability and, furthermore, should also evaluate the relative importance of such evidence to the parties’ dispute … . In addition, the probative value of such evidence to the issue of liability and its centrality to the parties’ dispute should be weighed against the degree to which the gravity of such injuries will likely engender sympathy for the plaintiff and thereby pose a risk of prejudice to the defendant … . Patino v County of Nassau, 2015 NY Slip Op 00509, 2nd Dept 1-21-15

 

, ,

Defendant’s Motion for a Judgment as a Matter of Law, Made Prior to the Close of Plaintiff’s Case, Was Premature and Should Not Have Been Granted Irrespective of the Improbability of Plaintiff’s Ultimate Success

The Second Department determined Supreme Court should not have granted defendant’s motion for a judgment as a matter of law, which was made (and granted) before plaintiff had completed putting in his case.  Plaintiff fell from a ladder at a work site and alleged a violation of Labor Law 200 and common-law negligence:

Prior to the close of the plaintiff’s case, the Supreme Court granted the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, concluding that there was no evidence of a dangerous condition at the work site. The Supreme Court thereafter entered judgment in favor of the defendants and against the plaintiff dismissing the complaint. …

The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. “A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Schultz v Hi-Tech Constr & Mgt Serv Inc, 2015 NY Slip OP 00521, 2nd Dept 1-21-15

 

,

Question of Fact Whether Licensed Driver Properly Supervised Young Driver with a Learner’s Permit

In an automobile collision case, the Second Department determined defendant’s motion for summary judgment was properly denied because a question of fact had been raised about whether defendant properly supervised the young driver who held a learner’s permit. The court explained the relevant law:

The learner-driver with a permit “may only operate a motor vehicle while under the immediate supervision and control of a duly licensed driver” (…see Vehicle and Traffic Law § 502[5][a][ii]). A licensed driver “is under a duty to use general or reasonable care in the instruction and supervision of the learner-driver” …, and also must “take necessary measures to prevent negligence on the part of the driver with the learner’s permit” … . Mejia v Kennedy, 2015 NY Slip Op 00504, 2nd Dept 1-21-15

 

Inference of Defendant’s Negligence Was Not “Inescapable”—Summary Judgment Should Not Have Been Granted to Plaintiff Pursuant to the Doctrine of Res Ipsa Loquitur

The Second Department reversed Supreme Court’s grant of summary judgment to the plaintiff based upon the doctrine of res ipsa loquitur.  Plaintiff was struck by a box which fell from a shelf in a retail store.  The evidence submitted by the plaintiff did not make the inference of defendant’s negligence “inescapable:”

“The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident” … . Since “the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent . . . res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment . . . even if the plaintiff’s circumstantial evidence is unrefuted” … . “[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment” … . “That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … .

Here, the plaintiffs’ submissions on the issue of res ipsa loquitur were insufficient to establish, prima facie, their entitlement to judgment as a matter of law on the issue of liability. The plaintiffs did not establish, by sufficiently convincing circumstantial proof, “that the inference of defendant’s negligence is inescapable” … . Hoeberlein v Bed Bath & Beyond, 2015 NY Slip Op 00497, 2nd Dept 1-21-15

 

,

Defendants Not Liable for Assault by a Contractor-Security Guard—No Showing Defendants Were Aware of Security Guard’s Propensity for Violence—Security Guard’s Actions Were Outside the Scope of Employment

The Second Department reversed Supreme Court finding that summary judgment should have been granted to defendants (a residential facility for the elderly/disabled and a related management company) in an action stemming from an assault by a contractor/security guard.  The evidence did not demonstrate defendants knew or should have known of the contractor’s propensity for violence and the contractor had acted outside the scope of employment:

“[A] party may be held liable for a contractor’s negligence under theories of negligent hiring, negligent retention, and negligent supervision” … . To hold a party liable under theories of negligent retention and negligent supervision, “a plaintiff must establish that the party knew or should have known of the contractor’s propensity for the conduct which caused the injury” … . Here, the appellants demonstrated, prima facie, that they did not know or have reason to know of Lewis’s alleged propensity for violence… . The appellants also demonstrated, prima facie, that they were not vicariously liable for the conduct of Lewis under the doctrine of respondeat superior, since Lewis’s alleged acts were not part of his job and were not incidental to the furtherance of the appellants’ business … . Robert v BHAP Hous Dev Fund Co, 2015 NY Slip Op 00520, 2nd Dept 1-21-15

 

Marching Band Director Did Not Assume the Risk of Injury Caused by a Defect in the Roadway

The Second Department determined the doctrine of primary assumption of risk was not available where the plaintiff, the music director of a marching band, was injured by a defect in the roadway where the band was marching.  The court noted that extending the assumption of risk doctrine to persons using streets or sidewalks would constitute an unwarranted diminution of the duty to keep sidewalks and streets reasonably safe:

The doctrine of primary assumption of the risk is inapplicable in this case. It cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County … . “[E]xtension of the doctrine [of primary assumption of the risk] to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of landowners–—both public and private–—to maintain their premises in a reasonably safe condition” … . Behr v County of Nassau, 2015 NY Slip Op 00485, 2nd Dept 1-21-15

 

,

Grassy Area Where Plaintiff Fell Was Not Part of a Highway or a Sidewalk–Prior Written Notice of the Defect (to the Town) Not Required

The Third Department determined the town’s requirement that it be provided with written notice of a defect before the town can be held liable for a related slip and fall did not apply to the grassy area where plaintiff fell:

Where, as here, a municipality has enacted a prior written notice provision (see Code of the Town of Clifton Park § 176-1 [A]), “a plaintiff may not bring a civil action against [the] municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given” … . Hence, in order to prevail upon its motion for summary judgment dismissing the complaint, the Town was required to establish as a matter of law that the grassy area in question constituted — insofar as is relevant here — either a highway, a sidewalk or a site that serves the same “functional purpose” as a highway or sidewalk… .

To be sure, a highway “encompasses the associated shoulders, guardrails, embankments, retaining walls and culverts” (…see Highway Law § 2 [4]…). As relevant here, whether the land adjacent to a highway is paved or otherwise improved does not determine its status as a shoulder; rather, the inquiry is whether the area in question creates “a general right of passage for the traveling public” … . Here, the Town failed to establish that the grassy area where plaintiff fell was designed or intended to provide a general right of passage; further, it is readily apparent from the photographs contained in the record on appeal that the grassy area where plaintiff’s accident occurred is too far removed from the edge of Old Route 146 to be considered an adjacent shoulder or to otherwise fall within the definition of a highway … .

We reach a similar conclusion with respect to whether the grassy area may be deemed to fall within the definition of a sidewalk. In this regard, “a grass strip between the sidewalk and the pavement of the road [indeed] is part of the sidewalk” … . Here, however, the grassy area depicted in the relevant photographs does not lie between a sidewalk and a roadway and, contrary to the Town’s contention, the mere fact that plaintiff and her son were traversing the grassy area to access the nearby parking lot (owned by Northway 9 Associates) does not render this area the functional equivalent of a sidewalk … . Cieszynski v Town of Clifton Park, 2015 NY Slip Op 00423, 3rd Dept 1-15-15

 

,

Question of Fact About Whether ATV Driven with Owner’s Permission Based Upon Owner’s Restrictions on Use of the ATV

The Third Department determined a question of fact had been raised about whether an all terrain vehicle (ATV) was being operated with the owner’s consent at the time of a collision (a requirement for vicarious liability–Vehicle and Traffic Law 2411).  The owner claimed only his grandson had permission to operate the ATV and operation of the ATV on a public highway was not permitted by him.  The accident occurred when the ATV was driven by someone other than the owner’s grandson (with the grandson’s permission) on a public highway.  The grandson was driving an ATV which had just been damaged in an accident and they were using the public highway to return to the off-road trails:

Although [the owner] and his grandson both confirm that the restrictions regarding where the ATV could be operated had been imposed, when the “the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury” … . Here, the testimony of [the owner] is self-interested and his grandson–who is not a party–has no interest of his own in contradicting his grandfather’s position. Under these circumstances, we are persuaded that the grandson’s alleged directions and assurances to [the driver of the ATV] could imply, when viewed in the light most favorable to plaintiffs, [the owner’s] restrictions were flexible and had been lifted under the circumstances. Accordingly, the issue of implied permission should be determined by a jury … .

Sepsi v Watson, 2015 NY Slip Op 00414, 3rd Dept 1-15-15

 

Photographs Demonstrated Defect Was “Trivial” and Not Actionable

In a slip and fall case, the Second Department reversed Supreme Court and dismissed the complaint, finding the defect “trivial:”

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 … . There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable … . 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” … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” .. .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the “clump” that allegedly caused her to trip and fall. The evidence, and in particular the photographs, 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 … . Adler v QPI-VIII. LLC, 2015 NY Slip OP 00320, 2nd Dept 1-14-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy