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Strict Products Liability Cause of Action Against Forklift Manufacturer Properly Dismissed Due to Owner’s Disabling Safety Switch/Question of Fact Whether Plaintiff Was a Special Employee of the Owner of the Forklift (Which Would Limit Plaintiff’s Recovery to Workers’ Compensation)

Plaintiff was injured by a forklift which continued running when he was out of the driver’s seat because the safety switch (which would have automatically shut the forklift off when the driver left the seat) had been disabled by the owner of the forklift.  The Fourth Department determined the strict products liablity cause of action against the manufacturer of the forklift was properly dismissed because the safety switch had been disabled. But the negligence cause of action against the owner of the forklift, Nuttall Gear, should not have been dismissed.  Nuttal Gear argued plaintiff was its special employee and therefore Workers’ Compensation was the exclusive remedy.  The Fourth Department determined there was a question of fact about whether plaintiff was a special employee. It was not clear that Nuttal Gear supervised plaintiff’s work:

We conclude that the court properly granted the motions of the products liability defendants. As the Court of Appeals has recently made clear, ” a manufacturer, who has designed and produced a safe product, will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe’ ” … . Here, the products liability defendants established as a matter of law that the forklift was not defectively designed by establishing that, when it was manufactured and delivered to Nuttall Gear, it had a safety switch that would have prevented plaintiff’s accident, and a third party thereafter made a substantial modification to the forklift by disabling the safety switch. The burden thus shifted to plaintiffs to raise an issue of fact, and they failed to meet that burden … . Contrary to plaintiffs’ contention, the affidavit of their expert, a professional engineer, does not raise a triable issue of fact.

We agree with plaintiffs, however, that the court erred in granting the motion of the Nuttall Gear defendants for summary judgment dismissing the complaint against them, and we therefore modify the order accordingly. It is well settled that “a general employee of one employer may also be in the special employ of another, notwithstanding the general employer’s responsibility for payment of wages and for maintaining workers’ compensation and other employee benefits” … . “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another . . . General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … . Although the determination of special employment status is “usually a question of fact,” such a determination “may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . * * *

It appears from the record that the only person who had contact with plaintiff at Nuttall Gear was Mark Moscato, who himself was a general employee of SPS [plaintiff’s employer]. The Nuttall Gear defendants have not identified a single person, other than Moscato, who told plaintiff what to do or how to do it.  Verost v Mitsubishi Caterpillar Forklift Am Inc, 2014 NY Slip Op 0008, 4th Dept 1-2-15

 

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Tenant In “Adjacent Property” May Be Responsible for Maintenance of a Sidewalk Where the Sidewalk is Subject to Special Use by the Tenant as Part of a Driveway

In perhaps the most thorough treatment of the theories of liability for a dangerous condition on a city sidewalk ever written, the Fourth Department explained the potential liability of the various abutting and “adjacent” property owners/tenants of the area where plaintiff slipped and fell.  Only the discussion of the “special use” by tenants (Bison) of “adjacent property” is excerpted here:

“Where a sidewalk is adjacent to but not part of the area used as a driveway, the plaintiff bears the burden of proof on a motion for summary judgment of showing that the special use of the sidewalk contributed to the defect . . . However, if the defect is in the portion of the sidewalk used as a driveway, the abutting landowner, on a motion for summary judgment, bears the burden of establishing that he or she did nothing to either create the defective condition or cause the condition through the special use of the property as a driveway” … . The same principle applies to a commercial tenant of property where the driveway constitutes a special use by the tenant … .

While the area of the dangerous condition is in a City right-of-way that falls within the extended lot line boundaries of the property owned by Seneca One, we conclude that the Bison defendants, as lessors of the “adjacent property,” may nevertheless still be liable if there is evidence that they had “access to and ability to exercise control over the special use [driveway]” … . We conclude that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control that special use driveway … and, further, failed to establish as a matter of law “that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway” … . Indeed, based on the evidence submitted by the Bison defendants in support of their motion, it is reasonable to conclude that the “driveway apron was constructed and exclusively used for the benefit of [the Bison defendants’ leased] property” … . The only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison Baseball. We thus conclude that the court properly denied their motion seeking to dismiss the negligence claims asserted against the Bison defendants insofar as those claims were based on their special use of the driveway … . Capretto v City of Buffalo, 2015 NY Slip Op 00055, 4th Dept 1-2-15

 

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Release Which Specifically Refers to a Particular Incident Relates Solely to that Incident—Where Terms of the Release Are Unambiguous, Extrinsic Evidence Will Not Be Considered

The Fourth Department determined that a release unambiguously related solely to a particular slip and fall on a particular day and did not bar an action based upon a subsequent slip and fall:

…[T]he release stated that defendant, in exchange for providing plaintiff with the agreed-upon settlement amount, was “released and forever discharged . . . from all manner of actions, causes of action, suits, . . . claims and demands whatsoever” that plaintiff “ever had, now has or which [her] successors and assigns, heirs, executors or administrators, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of those present . . . More specifically, for injuries sustained in a slip and fall incident which occurred on June 3, 2009, in the City of Lackawanna, County of Erie and State of New York.” Defendant made payment on the settlement and filed a copy of the stipulation of discontinuance in November 2012.

“It is well settled that a general release is governed by principles of contract law’ … and that, where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement’ … . Moreover, “[i]t 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’ … . Thus, “[w]here, as here, [a] release . . . contain[s] specific recitals as to the claims being released, and yet [contains] . . . an omnibus clause to the effect that the releasor releases and discharges all claims and demands whatsoever which he [or she] . . . may have against the releasee . . . , the courts have often applied the rule of ejusdem generis[, i.e., “of the same kind or class” (Black’s Law Dictionary 594 [9th ed 2009])], and held that the general words of a release are limited by the recital of a particular claim” … .

Here, we conclude that the language of the release is unambiguous in specifying that the only claims discharged thereby are those arising from the injuries plaintiff allegedly sustained in the first slip and fall accident … . Contrary to defendant’s further contention that we should consider extrinsic evidence purportedly demonstrating that the parties intended the settlement to cover both matters, “[i]t is well settled that, where the language of a release is clear and unambiguous, effect will be given to the intention of the parties as indicated by the language employed and the fact that one of the parties may have intended something else is irrelevant” … . Abdulla v Gross, 2015 NY Slip Op 00036, 4th Dept 1-2-15

 

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Seizure of Claimant’s Computers Pursuant to a Warrant Did Not Give Rise to Conversion, Negligent Misrepresentation and Constitutional Tort Causes of Action—Elements of Those Causes of Action Explained

The Fourth Department reversed the Court of Claims and dismissed causes of action for conversion and negligent misrepresentation stemming from the seizure of claimant’s computers pursuant to a judicial warrant.  The court noted that the seizure pursuant to the authority of the warrant precluded the conversion cause of action and the absence of privity between the claimant and the investigators who said the computers would be promptly returned precluded the negligent representation cause of action. Alternate ways to seek return of the computers (an application to County Court and an Article 78 proceeding if the application were denied) precluded the constitutional tort cause of action:

An actionable “conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . Here, a search warrant specifically authorized law enforcement to “search for and seize” six categories of items, including “[a]ll computers and computer storage media and related peripherals, electronic or computer data.” Claimants have never challenged the validity of the search warrant. Moreover, the unchallenged warrant placed no time limit on the retention of the items seized, and the authorization to “seize” the computers was not terminated until County Court ordered the property returned following Boerman’s guilty plea. We therefore conclude that defendant’s exercise of control over the computers did not constitute conversion inasmuch as it had the proper authority to exercise such control … .

The tort of “negligent misrepresentation requires [a claimant] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information’ ” … . We agree with defendant that, as a matter of law, there can be no “privity-like relationship” between an investigator and the target of his or her investigation … . Indeed, the relationship between investigator and target is the opposite of a “special position of confidence and trust” in which one party might justifiably rely upon the ” unique or specialized expertise’ ” of the other party … . Thus, as defendant correctly contends, the negligent misrepresentation claim fails as a matter of law … .

Even assuming, arguendo, that the initial seizure or continued detention of claimants’ computers violated the Search and Seizure Clause of the State Constitution (art I, § 12), we conclude that “no . . . claim [for constitutional tort] will lie where the claimant has an adequate remedy in an alternate forum” … . Here, claimants could have raised their constitutional arguments in an application to County Court seeking the return of their computers … or, if such motion were denied, in a CPLR article 78 proceeding seeking relief in the nature of mandamus or prohibition … . LM Bis Assoc Inc v State of New York, 2015 NY Slip Op 00007, 4th Dept 1-2-15

 

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Jury Verdict Finding Defendant’s Negligence Was Not the Proximate Cause of the Accident Should Not Have Been Set Aside—Criteria for Setting Aside a Verdict As Against the Weight of the Evidence Explained

The Fourth Department determined the trial court should not have set aside a verdict on the ground that it was against the weight of the evidence.  Plaintiff, a pedestrian, had been struck by a car driven by defendant.  The jury concluded the driver was negligent but the driver’s negligence was not the proximate cause of the accident:

“A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” … . “A jury finding that a party was negligent but that such negligence 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’ ” … . Where, however, “a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .

Here, the jury could have reasonably found from the evidence that plaintiff was not crossing the street in the crosswalk; that it was a dark, rainy evening; and that plaintiff emerged in defendant’s lane of travel from between stopped vehicles. The jury could also reasonably have found that, although defendant was negligent in, for example, the manner in which she approached the intersection before turning left, such negligence was not a proximate cause of the collision with plaintiff after she made the turn. Thus, “the finding of proximate cause did not inevitably flow from the finding of culpable conduct,” and the verdict therefore is not against the weight of the evidence … . Amorosi v Hubbard, 2015 NY Slip Op 00110, 4th Dept 1-2-15

 

Although Elevator Company Which Agrees to Maintain Elevator May Be Liable to an Injured Passenger, Here the Passenger Was Unable to Raise a Question of Fact About the Company’s Notice of a Potential Problem

The Second Department determined Supreme Court should have granted the elevator company's motion for summary judgment. Plaintiff alleged he was injured when the elevator suddenly stopped between floors but was unable to raise a question fact whether the elevator company had notice of the problem which caused the elevator to stop:

“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” … . Nouveau established its prima facie entitlement to judgment as a matter of law by showing that it did not have actual or constructive notice of an ongoing condition that would have caused the elevator to abruptly stop, and that it did not fail to use reasonable care to correct a condition of which it should have been aware … .

In opposition, the plaintiff failed to raise a triable issue of fact as to whether a prior problem with the elevator provided notice of the specific defect that allegedly caused the elevator to stop on the date of the subject incident. In addition, the affidavit of the plaintiff's expert was conclusory, lacking in foundation, and speculative … . Further, the plaintiff could not rely on the doctrine of res ipsa loquitur because he failed to demonstrate that the accident was one that would not ordinarily occur in the absence of someone's negligence … . Reed v Nouveau El Indus Inc, 2014 NY Slip Op 09116, 2nd Dept 12-31-14


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Supervision of Student Could Not Have Prevented Injury

In finding that the school's duty to supervise was not the proximate cause of the student's injuries, the Second Department explained the relevant law.  Here, the student tripped and fell after stepping on the straps of his book bag as he left the school:

Schools are under a duty to supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . ” Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students'” … . Moreover, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury … . Goldschmidt v City of New York, 2014 NY Slip Op 09103, 2nd Dept 12-31-14


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In an Action Stemming from an Automobile Accident, Having Granted a Default Judgment, Supreme Court Should Not Have Directed Plaintiff to Accept a Late Answer and Allowed Discovery Re: Damages–A Defaulting Defendant Is Not Entitled to Discovery

The Second Department determined Supreme Court, having granted plaintiff's motion for a default judgment on liability in an automobile-accident case, should have also granted plaintiff's motion for an inquest on damages.  Supreme Court should not have ordered plaintiff to accept a late answer and allowed discovery on damages:

Having granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants on the issue of liability, the Supreme Court should have directed an inquest on damages. Since serious injury “is decidedly an issue of damages, not liability” …, the plaintiff will be required to present prima facie proof at the inquest that she sustained a serious injury. However, while the defendants are “entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages” …, they may not conduct discovery with respect to the issue of damages, since defaulting defendants forfeit the right to discovery … . Rudra v Friedman, 2014 NY Slip Op 09117, 2nd Dept 12-31-14


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Procedure Under Civil Rights Law for Disclosure of Police Personnel Records Described

The Second Department determined plaintiff was entitled to the audiotapes of interviews of police officers which were attached to a report about a high-speed chase that resulted in the death of plaintiff's decedent.  Plaintiff's decedent was killed when the vehicle the police were chasing crashed into plaintiff's decedent's house:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action.” However, Civil Rights Law § 50-a, which codifies the standards for the disclosure of police personnel records …, provides that a police officer's “personnel records, used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). Prior to issuing such an order, the court is obligated to conduct an in camera review of the requested file, “and make a determination as to whether the records are relevant and material in the action before” it, and, upon such a finding “the court shall make those parts of the record found to be relevant and material available to the persons so requesting” (Civil Rights Law § 50-a[3]).

Here, the order dated March 22, 2013, indicated that the Supreme Court had reviewed “the reports sought . . . and all documentation annexed thereto” before concluding that there was “relevant and material” information contained therein (emphasis added). Accordingly, the plaintiff met his burden for compelling disclosure pursuant to Civil Rights Law § 50-a, and the court properly directed the County to disclose the IAB report. However, we perceive no reason why the plaintiff should have been denied access to the audiotapes of the interviews which were identified in the attachments to the IAB report … . The plaintiff should be permitted to hear the actual interviews of the officers regarding the accident, and not only read the IAB report's summaries thereof, since the interviews were the main source material for the IAB report and were incorporated by reference therein … .

“The party opposing disclosure carries the burden of demonstrating that the requested information falls squarely within the exemption'” … . The County has not offered any explanation as to why the audiotapes should not be discoverable, especially since it has already disclosed all of the other source material identified in the attachments to the IAB report. Calhoun v County of Suffolk, 2014 NY Slip Op 09095, 2nd Dept 12-31-14


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Once the Jury Found Defendant’s Negligence Was Not a Substantial Factor in Causing Plaintiff’s Injuries, the Jury Should Not Have Continued to Deliberate, Make Findings of Comparative Negligence and Apportion Damages—Jury’s Continued Deliberations Were Superfluous—New Trial Not Necessary

The First Department determined a new trial was not necessary where the jury went on to assess comparative fault and damages after finding defendant's negligence was not a substantial factor in causing the plaintiff's injuries.  The jury should have stopped deliberating at that point:

The verdict sheet in this personal injury action instructed the jurors to determine (1) whether defendant was negligent, and (2) if so, whether defendant's negligence was a substantial factor in causing plaintiff's injuries. The jurors found that defendant was negligent, but that his negligence was not a substantial factor in causing plaintiff's injury. The verdict sheet instructed that if the jurors answered the second question in the negative, they should cease deliberations and report their verdict. The jurors, however, continued deliberating and determined that plaintiff was also negligent; that plaintiff's negligence was a substantial factor in causing his own injury; that plaintiff was 95% at fault, and defendant was 5% at fault; and that plaintiff was entitled to $200,000 in damages.

This case is controlled by Pavlou v City of New York (21 AD3d 74 [1st Dept 2005], affd 8 NY3d 961 [2007]), a Labor Law case in which the plaintiff was injured due to a damaged crane hoist. In Pavlou, the jurors determined that the City (the owner of the construction site) was negligent under the Industrial Code, but that its negligence was not a substantial factor in causing the plaintiff's injury. The jury also found that the crane manufacturer was not negligent (id. at 75). The verdict sheet instructed that upon making these findings, the jurors were to stop deliberations. The Pavlou jury, however, went on to find the third-party defendant-employer negligent for operating a damaged crane; the jury then apportioned the employer's degree of fault and fixed the amount of damages (id. at 81). This Court held that the plaintiff was not entitled to a new trial as against the City, stating, “[T]he jury should not have apportioned [the employer's] liability . . . or fixed the amount of damages, once it determined that the violation of the Industrial Code was not a proximate cause and that the crane manufacturer was not negligent. The fact that the jury attempted such an award was a superfluous act that does not require a new trial” (id. at 76). The Court of Appeals affirmed (8 NY3d 961 [2007]).

The same reasoning as in Pavlou applies here. Once the jurors determined that defendant's negligence was not a substantial factor or proximate cause (see PJI 2:70, Proximate Cause — In General; see also PJI 2:36) of plaintiff's injuries, they should not have attempted to assess plaintiff's own negligence and to fix damages. That they did so was a superfluous act that [*2]does not require a new trial. Alcantara v Knight, 2014 NY Slip OP 09030, 1st Dept 12-30-14


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