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TENANT’S ATTACK ON PLAINTIFF WAS NOT FORESEEABLE; THEREFORE THE LANDLORD WAS NOT LIABLE IN NEGLIGENCE FOR FAILING TO EVICT THE TENANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined a tenant’s (Girard’s) attack on plaintiff was not foreseeable. Therefore the negligence action against the landlord for failing to evict Girard was dismissed:

Defendant demonstrated … that it was not liable for third-party defendant Girard’s attack on plaintiff because it was not reasonably foreseeable … . No evidence was presented that Girard had engaged in criminal conduct prior to the attack or that he was violent, had a propensity toward violence, or had threatened any tenants of the building. Inconsiderate behavior, such as playing loud music at all hours, engaging in loud arguments with his sister in the apartment, and banging on the apartment walls, is insufficient to have placed defendant on notice that Girard would stab plaintiff in response to plaintiff’s noise complaints … . While it was conceivable that the dispute might escalate into violence, “conceivability is not the equivalent of foreseeability” … . Plaintiff failed to present evidence sufficient to raise a triable issue of fact concerning whether defendant was negligent in not taking steps to evict Girard prior to the attack…. . Goris v New York City Hous. Auth., 2024 NY Slip Op 02661, First Dept 5-14-24

Practice Point: Here the tenant who attacked plaintiff, although loud and argumentative, had never been violent. Therefore the tenant’s attack was not foreseeable and the landlord could not be held liable in negligence for failing to evict the tenant.

 

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PLAINTIFF RAISED A QUESTION OF FACT RE: THE NEGLIGENT APPLICATION OF FLOOR WAX IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised a question of fact whether the area where she slipped and fell was excessively waxed:

… [P]laintiff raised an issue of fact as to “the negligent application of wax . . . by evidence that a dangerous residue of wax was present” … . Plaintiff testified that the waxy substance on the floor was on the side of her clothing and that where she fell there was an indentation into the substance. This testimony is sufficient to establish an issue of fact as to whether wax was negligently applied … . This evidence “conflicted with [defendants’] assertions that the area was never waxed, creating triable issues of fact precluding the grant of summary judgment” … . Scaccia v Brookfield Props. One WFC Co., LLC, 2024 NY Slip Op 02677, First Dept 5-14-23

Practice Point: The negligent application of floor wax can result in liability for a slip and fall.

 

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IN THIS CAR ACCIDENT CASE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE RELEASE SHE SIGNED WAS THE RESULT OF MUTUAL MISTAKE CONCERNING THE EXTENT OF HER INJURIES (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether the release signed by plaintiff after a car accident was the result of mutual mistake. At the time plaintiff signed the release it appeared her injuries, including whiplash, involved only her cervical, thoracic and lumbar regions. After signing the release she was diagnosed as having suffered a mild traumatic brain injury:

… [I]nasmuch as the submissions indicate that plaintiff had been diagnosed with neck and back injuries only at the time she signed the release and that plaintiff’s symptoms were not medically attributed to postconcussive syndrome until after the execution of the release with additional uncertainty in the interim, we conclude that plaintiff raised an issue of fact whether, at the time the release was executed, the parties were under “[a] mistaken belief as to the nonexistence of [a] presently existing injury,” i.e., a traumatic brain injury … . We therefore … reinstate the complaint. DiDomenico v McWhorter, 2024 NY Slip Op 02634, Fourth Dept 5-10-24

Practice Point: A release signed when both parties are not aware of an existing injury may be invalid as the result of mutual mistake.

 

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PLAINTIFF ALLEGED THE AIR BAG UNEXPECTEDLY DEPLOYED, CAUSING INJURY; DEFENDANT FORD’S EXPERT EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION DID NOT DEMONSTRATE THE CAUSE OF THE DEPLOYMENT WAS NOT ATTRIBUTABLE TO A PRODUCT DEFECT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this “unexpected-air-bag-deployment” case:

Just prior to the airbag’s deployment, decedent’s vehicle had collided with a deer. After the collision, decedent parked his vehicle on the side of the road, then he looked to his right to check on his passengers in the vehicle and looked to the left to see the deer. At that point the airbag deployed. * * *

It is well settled that a strict products liability cause of action may be established by circumstantial evidence, and thus a plaintiff ” ‘is not required to prove the specific defect’ ” in the product … . “In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to defendants” … . ” ‘Proof that will establish strict liability will almost always establish negligence’ ” … . * * *

Ford Motor’s expert failed to assert that there existed a likely cause of the unexpected deployment of the airbag that was “not attributable to any defect in the design or manufacturing of the product,” and therefore Ford Motor failed to meet its burden on its motion with respect to the strict products liability and negligence causes of action … . Keem v Ford Motor Co., 2024 NY Slip Op 02632, Fourth Dept 5-10-24

Practice Point: Defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this products liability/negligence action based upon the alleged unexpected deployment of an air bag.

 

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FORMER AND CURRENT SECTION 413 OF THE SOCIAL SERVICES LAW REQUIRES THE REPORTING OF ANY SUSPECTED INTENTIONAL INFLICTION OF SERIOUS PHYSICAL INJURY UPON A CHILD, WHICH INCLUDES SEXUAL ABUSE, EVEN WHEN THE PERSON SUSPECTED OF THE ABUSE IS NOT LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined former section 413 of Social Services Law, as the current section mandates, requires that all instances of suspected intentionally inflicted serious injury upon a child be reported, regardless of who is suspected of inflicting it. In other words, the suspected intentional infliction of serious injury upon a child must be reported, even if the person suspected of inflicting it is not a person legally responsible for the child. Despite this finding, the Fourth Department held that the cause of action based upon former section 413 should have been dismissed because the complaint does not allege the defendant town had received information that its employee, plaintiff’s youth baseball coach, was sexually assaulting plaintiff:

… [W]e conclude that Social Services Law former § 413 mandated, as the current version mandates, the reporting of every instance of suspected intentionally inflicted serious physical injury upon a child, regardless of who is suspected to have inflicted it, thereby triggering an investigation of the child’s parent or other legally responsible person—as a “subject of the report”—to determine whether, inter alia, that person inflicted or allowed the harm to be inflicted upon the child. “[T]he purpose of [the child protective services provisions under Social Services Law article 6, title 6, is] to encourage more complete reporting of suspected child abuse and maltreatment,” not less (Social Services Law § 411), and the former and current versions of sections 412 (2) (b) and 413 apply equally to children who have had a serious physical injury intentionally inflicted by, inter alia, a coach, a classroom teacher, a neighbor, another child or a distant relative who is not legally responsible for the child’s care.

From the dissent:

We write separately only to express our disagreement with the conclusion of the majority that … a mandated reporter is statutorily required to report any person who inflicted serious physical injury upon a child regardless of whether there is a parental or guardianship relationship, even where that same mandated reporter would not be required to report conduct constituting abuse. LG 70 Doe v Town of Amherst, 2024 NY Slip Op 02651, Fourth Deppt 5-10-24

Practice Point: Even where a person who is not legally responsible for the care of child is suspected of sexually abusing the child, the abuse must be reported pursuant to Social Services Law section 413.

 

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THE MEDICAL MALPRACTICE ACTION AGAINST THE RESIDENT WHO PERFORMED THE SURGERY UNDER THE SUPERVISION OF ANOTHER SURGEON SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the medical malpractice action against the resident who performed the surgery (Kent) should have been dismissed because the resident was acting under the supervision of another surgeon (Doak):

With respect to the appeal by Kent and the Kaleida Health defendants, we conclude that Supreme Court erred in denying that part of their motion (Kaleida motion) seeking summary judgment dismissing the complaint and any cross-claims against Kent because Kent did not exercise independent medical judgment during the surgery. It is well settled that a ” ‘resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene’ ” … , even where the resident ” ‘played an active role in [the plaintiff’s] procedure’ ” … . Kent and the Kaleida Health defendants met their burden on the Kaleida motion with respect to Kent by submitting evidence that plaintiff was Doak’s patient, Doak determined the surgery that was to be performed, and Doak directly supervised Kent during the facetectomy, and plaintiff failed to raise a triable issue of fact in opposition … . Van Hook v Doak, 2024 NY Slip Op 02641, Fourth Dept 5-10-24

Practice Point: A resident who does not exercise independent medical judgment when performing surgery under the supervision of another surgeon cannot be sued for medical malpractice.

 

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THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence submitted by plaintiff’s expert, a registered nurse, should not have been rejected because she was not a physician. Plaintiff’s decedent was a nursing-home patient with dementia who fell. The registered nurse was qualified to offer opinion evidence about measures to prevent elderly patients from falling:

Supreme Court disregarded plaintiff’s nursing expert’s opinion because she is not a medical doctor. However, the standard of care at issue clearly falls within the duties and expertise of a registered nurse. At the defendant nursing home, patient assessments were performed by registered nurses and evaluated by a team which included registered nurses. The nursing expert’s curriculum vitae demonstrates that she has a Bachelor of Science in nursing from the University of the State of New York, is licensed as a registered nurse in New York, and has worked in nursing since 1980. In particular, she has over fifteen years of experience conducting plan of care assessments for high-risk nursing home patients. Therefore, plaintiff’s nursing expert demonstrated that she has the requisite experience and expertise to opine as to the proper medical standard for preventing falls in elderly patients with dementia residing in skilled nursing facilities and whether defendant deviated from that standard … .

Furthermore, challenges regarding an expert witness’s qualifications affect the weight to be accorded the expert’s views, not their admissibility … . Rodriguez v Isabella Geriatric Ctr. Inc., 2024 NY Slip Op 02608, First Dept 5-9-24

Practice Point: Here the registered nurse was qualified to offer an opinion on the measures necessary to prevent geriatric patients from falling.

Practice Point: An expert’s qualifications speak to the weight of the opinion evidence, not its admissibility. Here the registered nurses opinion should not have been rejected because she was not a physician.

 

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PLAINTIFF’S ALLOWING HIS ATTACKER INTO HIS APARTMENT WAS AN INTERVENING ACT AND A SUPERSEDING PROXIMATE CAUSE WHICH RELIEVED THE BUILDING DEFENDANTS OF ANY LIABILITY FOR LAPSES IN SECURITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that there was evidence building security was lax, but plaintiff’s allowing the attacker, whom plaintiff knew, into to plaintiff’s apartment was an intervening act relieving the building defendants from liability:

Plaintiff, a psychiatrist, was conducting a patient session in his home office when Jacob Nolan, the cousin of his estranged former partner barged unannounced into the office. He was carrying a large black duffel bag and demanded that plaintiff give him certain financial documents required for the child shared by plaintiff and the former partner.… Plaintiff reproached Nolan, successfully expelled him from the apartment and locked the door. After the session, the patient departed but quickly returned to advise the plaintiff that the man who barged in was loitering in a common area of the building. Plaintiff then escorted his patient to the elevator and again engaged Nolan in dialogue. Nolan again communicated that his purported purpose was to retrieve some financial documents for the former partner and asked to use the bathroom in plaintiff’s apartment (which plaintiff made available to patients). Plaintiff then permitted Nolan into his locked apartment to use the bathroom, while plaintiff printed the form Nolan had requested. Nolan then suddenly emerged from the bathroom and attacked plaintiff, hitting him with a sledgehammer and stabbing him multiple times with a knife. Nolan and the former partner were both arrested and convicted for felony assaults upon the plaintiff.

… Supreme Court should have granted defendant’s motion for summary judgment dismissing the complaint. … [P]laintiff raised legitimate issues regarding lapses in the defendants’ security protocols, such as defendants’ allowing Nolan to enter and wander around the building for over twenty minutes before exiting, only to re-enter the building minutes later without being challenged by the building staff about his continued presence. Plaintiff’s conduct in re-admitting Nolan into the apartment after earlier expelling him, however, constituted an intervening act and a superseding proximate cause … . Weiss v Park Towers S. Co., LLC, 2024 NY Slip Op 02612, First Dept 5-9-24

Practice Point: Here plaintiff knew his attacker and allowed the attacker into his apartment. That was an intervening act and a superseding proximate cause of plaintiff’s injuries which insulated the building defendants from liability for lapses in security.

 

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IN THIS BUS-PASSENGER INJURY CASE, THE BUS DRIVER RAISED A QUESTION OF FACT WHETHER THE EMERGENCY DOCTRINE APPLIED; THE BUS STRUCK A VEHICLE WHICH STOPPED SUDDENLY AFTER IT WAS CUT OFF BY A THIRD VEHICLE; THE BUS DRIVER’S AFFIDAVIT WAS SUPPORTED BY SURVEILLANCE VIDEO (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant bus driver raised a question of fact about the applicability of the emergency doctrine in this bus-passenger injury case. The bus driver’s affidavit, together with video evidence, indicated that the vehicle struck by the bus stopped suddenly after being cut off by a third vehicle:

… [T]he defendants raised a triable issue of fact as to whether there was a nonnegligent explanation for the collision through the submission of an affidavit from Mendes [the bus driver] and a surveillance video of the accident … . In Mendes’ affidavit, she attested, among other things, that she collided with the vehicle owned by Paratransit when that vehicle made a sudden stop after being “cut off” by another vehicle. Moreover, the surveillance video was consistent with the assertions in Mendes’ affidavit. Yearwood v New York City Tr. Auth., 2024 NY Slip Op 02555, Second Dept 5-8-24

Practice Point: Although most rear-end collisions are deemed the fault of the rear driver, here it was alleged the front vehicle stopped suddenly after being cut off by a third vehicle, raising a question of fact about the applicability of the emergency doctrine as a defense.

Practice Point: Here is this rear-end collision case, the availability of surveillance video supported the applicability of the emergency doctrine as a defense.

 

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PLAINTIFF’S DECEDENT COMMITTED SUICIDE BY JUMPING FROM A LEDGE OUTSIDE HIS HOTEL ROOM; HOTEL STAFF DID NOT ASSUME A DUTY OF CARE FOR PLAINTIFF’S DECEDENT; A DELAY AFTER A FAMILY MEMBER’S REQUEST THAT HOTEL STAFF CALL THE POLICE WAS NOT DEMONSTRATED BY EXPERT OPINION TO HAVE CAUSED THE SUICIDE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Pitt-Burke, over an extensive dissenting opinion, determined the defendant hotel did not assume a duty of care for a hotel guest who committed suicide and did not proximately cause plaintiff-decedent’s suicide. Hotel staff had been made aware of decedent’s family’s fear that decedent, who was in a room at the hotel, was suicidal. Hotel staff checked on the decedent, who indicated he was “fine.” Subsequently a family member, who had been communicating with decedent, asked hotel staff to call the police. The crux of the lawsuit is the allegation that a delay in calling the police caused decedent to commit suicide. After breaking into decedent’s locked room, the police found decedent on a ledge outside the window and unsuccessfully tried to talk him back into the room:

An entity in control of a premises, “whether [it] be a landowner or a leaseholder, is not an insurer of the visitor’s safety” … . Absent a duty of care, there is no breach and no liability, regardless of how careless the conduct … . * * *

Plaintiffs … contend that defendants breached an assumed duty of care when they agreed to check on the decedent after being informed of his suicidal ideations and failed to act carefully or reasonably in contacting the police.

While “one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully” … , a defendant can only be held “liable for a breach of an assumed duty where the plaintiff shows reliance on the defendant’s course of conduct, such that the defendant’s conduct placed him or her in a more vulnerable position than he or she would otherwise have been in had the defendant done nothing” … . * * *

… [T]he record on appeal clearly shows … that despite defendants’ delay in calling the police, a period of at least thirty minutes elapsed from the time the police entered the hotel and decedent jumped from the ledge in the police officer’s presence. Beadell v Eros Mgt. Reality, LLC, 2024 NY Slip Op 02496, First De[t 5-7-24

Practice Point: A landowner or leaseholder in control of a hotel is not an insurer of a hotel guest’s safety and does not owe a duty of care to hotel guests absent the assumption of a duty to act (not the case here where a hotel guest committed suicide).

Practice Point: The expert opinion evidence here fell short of demonstrating that hotel staff’s delay in calling the police at the request of decedent’s family was the proximate cause of plaintiff’s decedent’s suicide.

 

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