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Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff’s Counsel Should Not Have Been Allowed to Comment on Defense’s Failure to Call the Nurse Who Was Going to Testify About the Statements—New Trial Ordered

The Second Department determined plaintiff's alleged statements about the trip and fall which were referenced in hospital records were not admissible because the statements were not germane to diagnosis and treatment and were not prior inconsistent statements.  The defense was therefore prohibited from calling the triage nurse who heard the statements.  Plaintiff's counsel, however, was erroneously allowed to comment on the absence of the nurse from the trial (the defense had indicated in its opening that she would testify about discrepancies in the plaintiff's account of the accident).  A new trial was therefore ordered:

Supreme Court providently exercised its discretion in precluding the admission into evidence of the entries in the injured plaintiff's hospital records. The evidence, which purportedly constituted statements by the injured plaintiff indicating that the accident did not occur on the defendants' premises, were not germane to the injured plaintiff's diagnosis and treatment … . Further, those statements were either equivocal as to how the accident occurred, or consistent with the injured plaintiff's testimony at trial … . Accordingly, they were not admissible as prior inconsistent statements to impeach her credibility. Since those entries were not admissible, the testimony of the triage nurse with respect to those entries was not admissible.

However, permitting the plaintiffs' counsel to comment on the failure to call the triage nurse as a witness was error, since the defendants in fact produced the witness and were precluded from calling her to testify by the trial court. Further, the comments by the plaintiffs' counsel in summation were not supported by the evidence, and were inflammatory and unduly prejudicial, depriving the defendants of a fair trial … . Nelson v Bogopa Serv Corp, 2014 NY Slip Op 08612, 2nd Dept 12-10-14

 

Single Step Was Open and Obvious and Not Inherently Dangerous

The Second Department determined a single step separating the carpeted dining area from the rest of the restaurant was open and obvious and not inherently dangerous:

A property owner has a duty to maintain his or her property in a reasonably safe manner … . However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Here, the defendants … submitted evidence sufficient to establish, prima facie, that the single step separating the carpeted dining area from the rest of the restaurant in which the plaintiff allegedly fell, which consisted of wooden flooring, was open and obvious, and not inherently dangerous … . Dillman v City Cellar Wine, Bar & Grill, 2014 NY Slip Op 08598, 2nd Dept 12-10-14

Similar issue and result in Varon v New York City Dept of Educ, 2014 NY Slip Op 08633, 2nd Dept 12-10-14.

 

There Can Be More than One Proximate Cause of an Accident—Plaintiff, to Prevail On a Motion for Summary Judgment, Must Demonstrate Both Defendant’s Negligence as a Matter of Law and Plaintiff’s Freedom from Comparative Fault

The Second Department determined plaintiff's motion for summary judgment was properly denied, in part, because she failed to demonstrate she was free from comparative fault.  Defendant's truck and plaintiff's vehicle were stopped side by side in two left-turn lanes. When the light turned green both vehicles turned left.  Plaintiff alleged that defendant's truck crossed into her lane during the turn, striking her vehicle.  The court noted that there was a question of fact whether the truck crossed into plaintiff's lane, as well as whether plaintiff was comparatively negligent (two possible proximate causes of the accident):

A driver is negligent if he or she violates Vehicle and Traffic Law § 1128(a) by, inter alia, failing to drive “as nearly as practicable entirely within a single lane” (Vehicle and Traffic Law § 1128[a]…). However, there can be more than one proximate cause of an accident … . Accordingly, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault … .

Here, the deposition testimony of the parties, which the plaintiff submitted in support of her motion, was insufficient to demonstrate, prima facie, her entitlement to judgment as a matter of law. The deposition testimony raised triable issues of fact as to whether the defendant driver violated Vehicle and Traffic Law § 1128(a) by failing to drive the tractor-trailer “as nearly as practicable entirely within a single lane,” and whether negligence, if any, on the part of the plaintiff, who admitted that she was not aware of what the defendant driver was doing while she made her turn, contributed to the happening of the accident. Kaur v Demata, 2014 NY Slip Op 08607, 2nd Dept 12-10-14

 

Sudden and Frequent Stops In Traffic Must Be Anticipated by Drivers

The Second Department, in finding no question of fact had been raised about the existence of a non-negligent explanation for a rear-end collision, explained the relevant law:

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … .

“One of several nonnegligent explanations for a rear-end collision [may be] a sudden stop of the lead vehicle” … . However, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” … . Le Grand v Silberstein, 2014 NY Slip OP 08608, 2nd Dept 12-10-14

 

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Criteria for a Legal Malpractice Action Re: the Attorney’s Performance In a Criminal Trial Explained—Here Plaintiff’s Conviction Was Reversed and Plaintiff Made a Colorable Claim of Innocence

The Third Department determined a legal malpractice action brought by a client represented by the defendant-attorney in a criminal trial properly survived summary judgment.  The defendant's conviction had been overturned by the Third Department and he was not reprosecuted.  Deficiencies in defendant's representation were noted in the reversal-decision:

In a legal malpractice claim, proximate cause is established by demonstrating that “but for the attorney's negligence, [the plaintiff] would have prevailed in the underlying matter or would not have sustained any ascertainable damages”… . Stated differently, “[t]he test is whether a proper defense would have altered the result of the prior action” … which, in the context of a criminal action, requires proof that the criminal defendant would not have been convicted … . Further, “[f]or malpractice actions arising from allegations of negligent representation in a criminal matter, the plaintiff must have at least a colorable claim of actual innocence” … . We find that a colorable claim has been demonstrated here based upon plaintiff's expressed assertions of innocence, together with our reversal of the judgment of conviction, as well as the District Attorney's decision not to reprosecute plaintiff and the consequent dismissal of the indictment … . * * *

Contrary to defendant's argument, plaintiff has sufficiently alleged pecuniary damages …, i.e., damages that “compensate the victim for the economic consequences of the injury” … . Arnold v Devane, 2014 NY Slip Op 08534, 3rd Dept 12-4-14

 

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“Expert” Affidavit Did Not Address the Affiant’s Qualifications for Rendering an Opinion Re: the Safety of a Curb and Sidewalk—Affidavit Should Not Have Been Relied Upon by the Motion Court

In finding that defendant's motion for summary judgment in a slip and fall case should have been denied, the Third Department noted that the expert affidavit should not have been relied upon by the motion court because it failed to include sufficient information to qualify the affiant as an expert:

Defendant … submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . Defendant's proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant's proffered expert listed the initials “P.E.” after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his “experience as an engineer.” While the “P.E.” would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information … .

Even assuming from the “P.E.” designation that this person is licensed as a professional engineer somewhere, merely stating that a person is a licensed engineer is insufficient to qualify that person as an expert in a particular case, absent any proof that he or she had any specialized training, personal knowledge or practical experience related to the subject at issue … . Flanger v 2461 Elm Realty Corp, 2014 NY Slip Op 08532, 3rd Dept 12-4-14

 

Operative Principles Re: a Collision Where Plaintiff Has the Right-of-Way Explained

In finding that plaintiff was entitled to summary judgment, the Second Department explained the law surrounding a collision where plaintiff had the right-of-way:

A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws which require them to yield (see Vehicle and Traffic Law § 1141…). Since there can be more than one proximate cause of an accident, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . Smith v Omanes, 2014 NY Slip Op 08418, 2nd Dept 12-3-14

 

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Question of Fact Whether Structure on a Sports Field (Pole Vault Box) Was Open and Obvious Such that No Protection or Warning Was Required for Pedestrians

The Second Department determined a question of fact had been raised about whether the school district had a duty to protect or warn pedestrians concerning a “pole vault box” on a sports field.  Plaintiff was injured when she tripped and fell over the box. Plaintiff thought she was using a walkway but she was on the pole vault runway:

To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it … . A defendant has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . The issue of whether a dangerous condition is open and obvious is fact specific, and thus usually a question for the jury … . Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances … . A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted … .

Here, the Supreme Court properly determined that the defendant submitted sufficient evidence to establish its prima facie entitlement to judgment as a matter of law on the ground that the pole vault box was not inherently dangerous and was readily observable to individuals employing the reasonable use of their senses … .

In opposition, the plaintiffs raised a triable issue of fact as to whether the condition, while open and obvious, constituted a trap for the unwary. In this regard, the plaintiff submitted photographs of the pole vault area and the affidavit of the injured plaintiff, wherein she stated that she had never been to this area of the athletic fields of the high school before, believed she was walking on a walkway, and was speaking to her daughter trying to determine which field to go to … . Julianne Oldham-Powers v Longwood Cent School Dist, 2014 NY Slip Op 08411, 2nd Dept 12-3-14

 

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Wood Which Fell From a Shelf When Plaintiff Inadvertently Moved It Was the Condition for the Occurrence of the Event, But Not the Cause

In reversing Supreme Court, the Second Department determined the defendant school was entitled to summary judgment in a personal injury action brought by a student.  The student had been injured when he inadvertently caused wood stored on a shelf to fall on him.  The Second Department determined the wood on the shelf was the condition for occurrence of the event but not the cause:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . “It is true that whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide” … . “However, summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous” … .

Here, the defendants established prima facie that there was no evidence of a dangerous or defective condition that caused the injured plaintiff's accident. The injured plaintiff testified at the General Municipal Law § 50-h hearing that he, in effect, inadvertently pushed the two two-by-four pieces of wood off the shelving unit with the stick. Under these circumstances, the presence of the two-by-fours resting atop the shelving unit “merely furnished the condition or occasion for the occurrence of the event,” but was not one of its causes… . Rant v Locust Val High School, 2014 NY Slip Op 08415, 2nd Dept 12-3-14

 

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Bicyclist Assumed Risk of Injury While Jumping His Bicycle Off a Dirt Mound on a Dirt Bike Trail In a Park

The Second Department determined plaintiff-bicyclist assumed the risk of injury while jumping his bicycle off a dirt mound on a dirt bike trail in a park:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting or recreational activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in and arise out of the nature of the activity … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . “If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty” by making the conditions as safe as they appear to be … . This includes risks associated with the construction of the playing surface and any open and obvious condition on it … .

In support of their motion, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of his injuries by voluntarily jumping his bicycle from the subject dirt mound, and that the plaintiff was fully aware of the condition of the mound at the time of the accident, as he successfully jumped off the mound twice prior to the accident… . Mamati v City of New York Parks & Recreation, 2014 NY Slip Op 08406, 2nd Dept 12-3-14

 

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