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Questions of Fact Raised About Whether Student Assumed the Risk of Injury from Indoor Soccer Practice–Relevant Law Discussed In Some Depth

The Second Department reversed Supreme Court's grant of summary judgment to the school finding that questions of fact had been raised about whether plaintiff-student assumed the risk of injury.  Because it was raining, soccer practice was held indoors.  As part of the indoor practice, plaintiff was asked to sprint down a hallway and was told the loser in each pair of sprinters would be required to run laps up and down stairs.  Plaintiff was injured when she was unable to stop after passing the finish line and struck her head on the wall just beyond the finish line:

The doctrine of primary assumption of risk is not a defense based on a plaintiff's culpable conduct, but, rather, is a measure of the defendant's duty of care to participants in certain types of athletic or recreational activities … . “Under this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk'” … . “Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed him [or her] by others, the plaintiff's consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist” … .

“As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, there is no dispute that the infant voluntarily participated on her school's soccer team, a sponsored athletic activity.

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … .

“…[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” … . * * *

…”[T]the primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . “[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … .

“[A] board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” … . Braile v Patchogue Medford School Dist of Town of Brookhaven, 2014 NY Slip OP 08949, 2nd Dept 12-24-14

 

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Questions of Fact Re: Whether School Owed Duty of Care to Student Struck by a Car While Playing Tag Five Minutes Before School Began and Whether a Breach of that Duty Proximately Caused the Injury

The First Department determined there were issues of fact raised concerning the school's duty to the plaintiff, an eighth grade student, after he was discharged from a school bus five minutes before school began.  The student was struck by a car when he darted or was pushed into the street while playing tag:

Although the driver of the car was not negligent in causing the accident …, the record presents issues of fact as to whether defendant [board of education] owed a duty of care to protect the infant plaintiff from traffic hazards after he was discharged by the school bus in front of the school, five minutes before the school day would begin …, and whether that duty was breached by the school's failure to provide adequate safety measures, such as traffic barricades, proximately causing the injury … . Mamadou S v Feliciano, 2014 NY Slip OP 08909, 1st Dept 12-23-14

 

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Negligent Training and Supervision Causes of Action Properly Survived Summary Judgment/Lawsuit Stemmed from Sexual Contact Between an Employee of Defendant Residential Facility and Plaintiff, Who Was 14 Years Old

In a case stemming from an employee's (Williams') sexual contact with the plaintiff, a 14-year-old resident of defendant Berkshire Farm Center and Services for Youth, the Third Department determined the negligent training and supervision causes of action properly survived summary judgment:

In order to succeed on a claim of negligent training and supervision of an employee, it must be demonstrated that the employer “knew or should have known of the employee's propensity for the conduct which caused the injury” … and that the allegedly deficient supervision or training was a proximate cause of such injury … . In support of its motion seeking the dismissal of plaintiff's negligent training and supervision claims, defendant presented testimony from its employees — including those who assumed supervisory positions — indicating that there were no prior indicia or reports of any inappropriate conduct by Williams toward the youths residing in the detention facility and that the news of the incident with plaintiff came as a complete surprise … . * * *

…Review of the testimony of defendant's employees reveals that there was a general reluctance on the part of several staff members to report policy violations to supervisors or register complaints regarding staff conduct. Two staff members, in particular, testified that the director was not responsive to reports of improper conduct and she disregarded staff concerns regarding, among other things, scheduling male counselors to work alone during overnight shifts while there were female residents — some of whom were characterized as highly sexually active — in the facility. One staff member testified that he was aware of an incident in which Williams told plaintiff that she was “sexy” as she was returning to her room in a towel after having taken a shower, but he did not confront Williams or report it to his supervisors. Other evidence exists evincing Williams' propensity to engage in inappropriate contact with youths in the facility, including one occasion where it was discovered that a female resident had written Williams' phone number on a slip of paper. Rather than make a comprehensive inquiry about the matter, defendant limited its investigation to questioning the female and Williams. Despite the nature of the incident, defendant's director denied having any concerns about Williams' interaction with the residents. Other testimony by staff members described Williams as a counselor who appeared to relish having authority over the children and he acted aggressively toward them and without apparent concern for their interests. Specifically, one counselor averred that he observed Williams tell a female resident that he would “be with her” under different circumstances and that, although this staff member reported the exchange to a supervisor, Williams was not disciplined. Other complaints to supervisors regarding Williams' improper conduct appear to have gone unaddressed, causing one counselor to opine during his deposition that such reports “went in one ear and out the other.” Viewing this evidence, as well as counselor testimony that defendant did not test or otherwise ensure that its staff members were knowledgeable and compliant with its written policies and instructional materials, in a light most favorable to plaintiff, we find that material issues of fact preclude summary judgment on these causes of action … . Hicks v Berkshire Farm Ctr & Servs for Youth, 2014 NY Slip Op 0889, 3rd Dept 12-18-14

 

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Sheriff’s Deputy’s Driving During an Emergency Operation Did Not Rise to the “Reckless Disregard” Standard for Liability

The Third Department determined summary judgment was properly granted in favor of the sheriff's department because the conduct of the sheriff's deputy (Curry) involved in the vehicle accident did not meet the “reckless disregard” standard for vehicles involved in “emergency operations.”  The accident happened when the deputy made a U-turn because he noticed a police officer who appeared to be “having trouble with” a detained suspect:

“Vehicle and Traffic Law § 1104 (a) exempts the drivers of authorized emergency vehicles from the requirements of certain traffic laws when they are 'involved in an emergency operation'” … . This statutory qualified immunity “precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness” … . By statute, “[e]very . . . police vehicle” is an “authorized emergency vehicle” within the meaning of Vehicle and Traffic Law § 1104 (a) and (b) (Vehicle and Traffic Law § 101 [emphasis added]), and the fact that Curry's police vehicle was unmarked does not compel a contrary conclusion (see Vehicle and Traffic Law § 101…), although it may be relevant to the inquiry into whether he acted recklessly … .

We further find that Curry was exempt from certain traffic laws because he was engaged in an “emergency operation” (Vehicle and Traffic Law §§ 114-b, 1104 [a]…). Specifically, among other privileges, Curry was entitled to “[d]isregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104 [b] [4]) and to “[s]top” his vehicle regardless of other traffic laws (Vehicle and Traffic Law § 1104 [b] [1]). Thus, while U-turns were not permitted at this location, Curry was permitted to stop or slow his vehicle in traffic and to make a U-turn, provided he did not act recklessly … . The evidence is undisputed that Curry, having acted to assist an officer who appeared to be having trouble with a detained suspect, was undertaking an “emergency operation.”  Jones v Albany County Sheriff's Dept, 2014 NY Slip Op 08895, 3rd Dept 12-18-14

 

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Elevator Company Which Agrees to Keep Elevator in a Safe Operating Condition May Be Liable to Injured Passenger

The Second Department reversed Supreme Court finding an elevator company which agreed to maintain an elevator in a safe condition may be liable to an injured passenger:

“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” … . Here, the defendant submitted maintenance records for the subject elevator, including work tickets for a period of approximately one year preceding the plaintiff’s accident and a “callout report,” which indicated that approximately six months before the accident, the defendant was called to repair the alarm bell. The defendant also submitted the plaintiff’s deposition transcript, wherein he testified that, prior to his accident, there were times when the alarm bell and strobe light did not activate and that two other individuals had been struck on the head by the gate prior to his accident. Thus, the defendant’s submissions failed to establish, prima facie, that it did not have actual or constructive notice concerning the defective operation of the elevator’s gate, alarm bell, and strobe light … . Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion should have been denied regardless of the sufficiency of the plaintiff’s opposition papers … . Papapietro v Knoe Inc, 2014 NY Slip Op 08817, 2nd Dept 12-17-14

 

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In the Absence of Allegations in the Pleadings Supporting an “Espinal” Exception to the Rule that Tort Liability to Third Persons Does Not Arise from a Contract, No Question of Fact Was Raised About a Duty Owed by the Defendant to the Plaintiff

The Second Department determined the complaint in a slip and fall case was properly dismissed.  There apparently was a contract between the defendant cleaning services company, One-A, and plaintiff’s employer.  Plaintiff slipped and fell on a wet floor. The court explained the Espinal criteria for tort liability to third parties arising from a contract and then found that, because plaintiff was not a party to the cleaning-services contract, the cleaning-services company did not owe her a duty of care:

Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party … . Nonetheless, the Court of Appeals has recognized three exceptions to this general rule: (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; and (3) where the contracting party has entirely displaced another party’s duty to maintain the premises safely … . As part of its prima facie showing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff’s bill of particulars … . Here, given the allegations in the complaint and the plaintiff’s bill of particulars, One-A established its prima facie entitlement to judgment as a matter of law simply by offering sufficient proof that the plaintiff was not a party to its contract to clean the floor of the premises, and that it thus owed her no duty of care … . In opposition, the plaintiff failed to raise a triable issue of fact … . Glover v John Tyler Eters Inc, 2014 NY Slip Op 08809, 2nd Dept 12-17-14

 

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Although Plaintiff Could Not Identify the Cause of Her Fall, A Question of Fact Was Raised Re: the Cause by Circumstantial Evidence

The Second Department determined that, although the plaintiff was unable to identify the cause of her fall, she was able to raise a question of fact about the cause from circumstantial evidence:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall … . However, that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury … .

Here, the defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her accident without engaging in speculation … . However, in opposition, the plaintiff raised a triable issue of fact, inter alia, through circumstantial evidence, as to whether the cause of her fall was a cracked and/or unlevel condition on the defendants’ driveway … . Buglione v Spagnoletti, 2014 NY Slip Op 08801, 2nd Dept 12-17-14

 

Although There Was Evidence the Plaintiff Failed to Yield the Right-of-Way, There Was a Triable Question of Fact Whether Defendant Could Have Taken Steps to Avoid the Collision

The Second Department reversed Supreme Court finding that, although there was evidence failed to yield the right-of-way in violation of Vehicle & Traffic Law 1142 (a), defendant (Tiao) failed to demonstrate the absence of comparative fault on his part:

A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (see Vehicle and Traffic Law § 1141…). Moreover, a driver is negligent where he has failed to see that which through proper use of his senses he should have seen … . At the same time, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … . “There can be more than one proximate cause of an accident” …, and the issue of comparative fault is generally a question for the jury to decide … . Thus, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault … .

In support of their motion, the defendants relied upon, inter alia, the deposition transcripts of the plaintiff and Tiao. While the defendants submitted evidence that the plaintiff failed to yield the right-of-way to their vehicle in violation of Vehicle and Traffic Law § 1142(a), their submissions in support of their motion failed to establish Tiao’s freedom from comparative fault and that the plaintiff’s violation was the sole proximate cause of the accident… . Tiao recalled at his deposition that, prior to entering the intersection, when he was about five to eight feet therefrom, he observed the plaintiff’s vehicle stopped at the stop sign on 72nd Street. Thereafter, he testified that three to four seconds elapsed between his seeing the plaintiff’s vehicle initially and the collision. Tiao did not testify as to the movement of the plaintiff’s vehicle from the point he initially observed it to the point of impact between the vehicles, and he admitted that he could not recall where he was looking at the point of impact. He further admitted that he did not take any evasive action to avoid the impact with the plaintiff’s vehicle in the intersection. Based on Tiao’s testimony, the defendants failed to eliminate all triable issues of fact as to whether Tiao took reasonable care to avoid the collision with the plaintiff’s vehicle in the intersection… . Arias v Tiao, 2014 NY Slip Op 08796, 2nd Dept 12-17-14

Similar issue and result in Canales v Arichabala, 2014 NY Slip Op 08803, 2nd Dept 12-17-14

 

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Complaint Can Not Be Deemed a Late Notice of Claim/Application to File a Late Notice of Claim Can Not Be Granted After the Statute of Limitations Has Run/City Is Not Required to Plead the Failure to File a Notice of Claim as a Defense/Participation in Discovery Did Not Preclude the City from Moving to Dismiss Based Upon Plaintiff’s Failure to File a Notice of Claim (After the Statute of Limitations Had Run)

The Second Department reversed Supreme Court’s determination that the complaint be deemed a late notice of claim against the city in a slip and fall case.  The court noted that Supreme Court did not have the power to accept the complaint as a late notice of claim, did not have the power to grant an application to file a late notice of claim after the statute of limitations had passed, the city was under no obligation to plead the absence of a notice of claim as a defense, and the city was not precluded from raising the defense by participating in discovery:

Here … the Housing Authority … was “under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement” … . “Furthermore . . . participation in pretrial discovery did not preclude [it] from raising the untimeliness of the notice of claim” … . In short, there is no evidence in the record demonstrating that the Housing Authority engaged in any misleading conduct which would support a finding of equitable estoppel … . Furthermore, there is no indication in the record that the plaintiff relied upon any alleged act or omission of the Housing Authority or that such reliance caused the plaintiff to change her position to her detriment or prejudice … . Accordingly, the Supreme Court should have granted the Housing Authority’s motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to serve a timely notice of claim, and denied that branch of the plaintiff’s cross motion which was to deem the complaint to be a late notice of claim and to deem it to have been timely served nunc pro tunc.  Feliciano v NYC Hous Auth, 2014 NY Slip OP 08807, 2nd Dept 12-17-14

 

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Adverse Interest Exception to In Pari Delicto Defense May Apply—The Two Concepts Are Briefly Explained

In an accounting malpractice action, the Second Department determined the defendants’ motion to dismiss based upon the defense of in pari delicto defense was properly denied because the adverse interest exception may apply.  The court explained the two concepts:

The defendants contend that [the accounting malpractice] cause of action is barred by the doctrine of in pari delicto, “which mandates that the courts will not intercede to resolve a dispute between two wrongdoers” … . However, the adverse interest exception to the doctrine of in pari delicto provides that “when an agent is engaged in a scheme to defraud his principal, either for his own benefit or that of a third person, the presumption that knowledge held by the agent was disclosed to the principal fails because he cannot be presumed to have disclosed that which would expose and defeat his fraudulent purpose” … . Here, the documentary evidence submitted by the defendants did not conclusively foreclose the application of the adverse interest exception to the in pari delicto defense … . Schwartz v Leaf Salzman Mangenelli Pfiel, & Tendler LLP, 2014 NY Slip Op 08823, 2nd Dept 12-17-14

 

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