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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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Criteria for an “Open and Obvious” Defense and an “Intervening or Superseding Cause” Defense Described—Effect of Plaintiff’s Intoxication and Lack of Memory Re: the Accident Discussed

The First Department determined a lawsuit stemming from plaintiff's fall from a roof into an unprotected airshaft could go forward.  The roof was accessed through an apartment window.  The Court of Appeals had reversed the First Department's dismissal of the action (on the ground the accident was not foreseeable).  On remand, the First Department addressed the defendant's arguments that the condition was open and obvious, that plaintiff's climbing onto the roof while intoxicated was the intervening, superseding or sole proximate cause of the accident, and the effect of the facts that no one witnessed the accident and plaintiff has no memory of it:

To establish an open and obvious condition, a defendant must prove that the hazard “could not reasonably be overlooked by anyone in the area whose eyes were open” … . However, “even visible hazards do not necessarily qualify as open and obvious” because the “nature or location of some hazards, while they are technically visible, make them likely to be overlooked” … . The burden is on the defendant to demonstrate, as a matter of law, that the condition that caused the plaintiff to sustain injury was readily observable by the plaintiff employing the reasonable use of his senses … . Furthermore, “whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … .

Viewing the evidence in the light most favorable to plaintiff, we find that a triable issue of fact exists whether the unguarded opening from the setback roof to the air shaft was an open and obvious condition that was not inherently dangerous. * * *

“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” … . “[L]iability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence” … . To establish that a plaintiff's conduct was the sole proximate cause of his or her injuries, a defendant must show that the plaintiff engaged in reckless, unforeseeable or extraordinary conduct, i.e. that the plaintiff recognized the danger and chose to disregard it … .

On the record before us, defendants have not established as a matter of law that plaintiff's act of walking out onto the setback roof was a superseding or intervening cause that severed the causal connection between his injuries and any negligence on their part. Plaintiff had never been to the building before the night in question, and defendants did not establish that plaintiff either knew, or should have known, that his conduct was dangerous, notwithstanding that he apparently fell during his second trip onto the setback roof. The fact that plaintiff was legally intoxicated does not alone render his actions a superseding cause … .

Defendants argue that plaintiff cannot make out a case of proximate cause because the accident was unwitnessed, and plaintiff does not recall what happened, and thus there can be no showing that a parapet or railing would have prevented the accident. However, plaintiff need not exclude every possible cause of his fall other than the premises defects alleged … . Regardless of whether plaintiff slipped, tripped, or fell, an issue of fact exists whether his fall down into the air shaft was, at least in part, attributable to the fact that the setback roof was open to the unguarded shaft. Powers v 31 E 31 LLC, 2014 NY Slip Op 08382, 1st Dept 12-2-14

 

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Procedure for Determining a Motion to Dismiss Pursuant to CPLR 3211 (a)(7) Where the Defendant Submits Evidence Explained/Elements of Gross Negligence Explained

The Second Department, in finding the complaint adequately pled gross negligence (re: packing and transporting an art collection), explained the analytical criteria for dealing with a motion to dismiss pursuant to CPLR 3211 (a)(7) where evidence is submitted by the defendant:

“On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences” … . The court is limited to “an examination of the pleadings to determine whether they state a cause of action,” and the “plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” … . “The test of the sufficiency of a pleading is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments'” … .

“A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” …, and, if it does so, “the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'” … . “Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” … .

Gross negligence “differs in kind, not only degree, from claims of ordinary negligence” … . “To constitute gross negligence, a party’s conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others” … . “Stated differently, a party is grossly negligent when it fails to exercise even slight care or slight diligence” … . Ordinarily, the question of gross negligence is a matter to be determined by the trier of fact … . Dolphin Holdings Ltd v Gander & White Shipping Inc, 2014 NY Slip Op 08316, 2nd Dept 11-26-14

 

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Because Defendant Was Negligent As a Matter of Law (Violation of Vehicle and Traffic Law), the Verdict In Favor of the Defendant Was Properly Set Aside

The Second Department determined Supreme Court properly set aside the defendant’s verdict in a vehicle collision case:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence … . “It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses” … .

Here, a fair interpretation of the evidence does not support the jury’s finding that the defendant was not negligent. The defendant testified that, when she was stopped at the intersection, her view to her left, the direction from which the injured plaintiff was coming, was obstructed, yet she proceeded anyway. The fact that the defendant proceeded into the intersection without having a clear view of the traffic on Wilson Avenue and without yielding the right-of-way after a stop sign demonstrated that she violated Vehicle and Traffic Law §§ 1142(a) and 1172(a) … . Such violations constitute negligence as a matter of law, and could not properly be disregarded by the jury … . Consequently, on these facts, the jury could not have reached its verdict that the defendant was not negligent on any fair interpretation of the evidence … . Zhubrak v Petro, 2014 NY Slip Op 08332, 2nd Dept 11-26-14

 

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Criteria for Abutting Property Owner’s Liability for Accumulated Snow and Ice on a Sidewalk (In the Absence of a Statute or Ordinance) Explained

The Second Department explained the liability of an abutting property owner for accumulated ice and snow on a sidewalk.  The slip and fall in this case occurred before NYC Administrative Code 7-210 imposed liability on abutting property owners:

“In the absence of a statute or ordinance, an owner or lessee of property abutting a public sidewalk may be held liable where it undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous'” … . Here, [defendant]  made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him on the ground that neither he nor anyone acting in his behalf performed snow removal at the premises, and that he was not liable for any actions his tenants may have taken with respect to the sidewalk … . Harris v City of New York, 2014 NY Slip Op 08319, 2nd Dept 11-26-14

 

Question of Fact Whether Residential Facility Exercised the Care a Reasonable Parent Would Have Provided In Supervising Infant Plaintiff Who Wandered Away from the Facility and Was Struck by a Car

Reversing the Appellate Division, the Court of Appeals determined there was a question of fact whether a residential facility (Saint Cabrini) in which infant plaintiff had been placed (as a neglected child) exercised reasonable care in supervising her. Plaintiff left the facility without permission and moved away when approached by staff members. She ultimately walked into the road where she was struck by a car:

The dissenting Justices concluded that Saint Cabrini had not “carried its initial burden of demonstrating the absence of triable issues of fact as to whether its staff met [the] duty to provide the degree of care to plaintiff that a reasonable parent would provide” (id.). Viewing the evidence in the light most favorable to plaintiff, we agree that Saint Cabrini has not met its threshold burden. It is up to the jury to decide if a parent of ordinary prudence in similar circumstances would have necessarily employed different means to protect plaintiff under the facts of this case.  DT v Rich, 2014 NY Slip Op 08223, CtApp 11-25-14

 

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Release Did Not Exclude Liability for Personal Trainer’s Negligence

The First Department determined that the wording of a release for a personal training program did not express an unequivocal intent to limit liability for negligence.  The plaintiff alleged that the trainer negligently instructed him to lift an excessive amount of weight:

Prior to beginning training at defendant’s facility, plaintiff executed a release wherein he acknowledged that there were “inherent risks in participating in a program of strenuous exercise” and released defendant from “all claims . . . which

I . . . . may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program.” It is undisputed that General Obligations Law § 5-326 does not bar enforcement of this release as defendant’s facility is an instructional, and not a recreational, one. However, the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence … . While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not “express[] any intention to exempt . . . defendant from liability for injury . . . which may result from [its] failure to use due care . . . in [its] training methods” … . …[T]he release does not purport to release defendant from all personal injury claims, “whether or not based on the acts or omissions of [defendant],” or contain other language conveying a similar import … .  Kim v Harry Hanson Inc, 2014 NY Slip Op 08229, 1st Dept 11-25-14

 

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Question of Fact Whether City Had a Special Relationship with Plaintiff Such that the City Owed a Duty to the Plaintiff Over and Above the Duty Owed to the Public at Large

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, determined that there was a question of fact whether the city had a special relationship with the plaintiff, such that the city had a duty to protect the plaintiff from her abusive husband. After police officers assured plaintiff her husband (Coleson), who had been arrested, was going to jail, she was attacked and stabbed by him.  Plaintiff’s seven-year-old son was with her when she was attacked but did not witness the stabbing because he had been placed in a closet for protection by a bystander.  Because plaintiff’s son did not see the stabbing, the court concluded he was not in the “zone of danger” when his mother was stabbed:

Liability for a claim that a municipality negligently exercised a governmental function “turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public” … . “[A] duty to exercise reasonable care toward [a] plaintiff” is “born of a special relationship between the plaintiff and the governmental entity” … . This Court has determined that a special relationship can be formed in three ways:

“(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction in the face of a known blatant and dangerous safety violation”… .

In Cuffy v City of New York (69 NY2d 255), we listed the requisite elements for a duty voluntarily assumed:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking (id. at 260). We noted that “the injured party’s reliance is . . . critical” (id. at 261).

Applying the Cuffy factors here, we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first factor, a jury could conclude that the police officers made promises to protect plaintiff. Plaintiff was notified by the police that Coleson was arrested, that he was in front of a judge to be sentenced, would be in jail for a while, and that the police would be in contact with her. As to the second factor, the police officers conceivably knew that Coleson would harm plaintiff if he was not apprehended, as evidenced by his arrest and the issuance of an order of protection to plaintiff. Given that plaintiff was told by Officer Reyes that everything was in process and she would keep in contact, there is an issue of fact as to whether the police knew that their inaction could lead to harm. The third factor is easily met, as plaintiff had direct contact with the police, by the police responding to her call about Coleson’s threats, making an arrest, escorting her to the police precinct, and plaintiff’s phone call with Officer Reyes. Finally, regarding a party’s justifiable reliance on the municipality’s affirmative undertaking, given the assurances that plaintiff received from Officer Reyes that Coleson was in jail and that he would be there for a while, a jury could find that it was reasonable for plaintiff to believe that Coleson would be jailed for the foreseeable future, and that the police would contact her if that turned out not to be the case. Coleson v City of New York, 2014 NY Slip Op 08213, CtApp 11-24-14

 

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In a Lead-Paint-Injury Case, Non-party Medical Records Not Discoverable (Re: Plaintiff’s Mother and Siblings)–Non-party Academic Records Should Be Submitted for In Camera Review–Mother Cannot Be Compelled to Submit to an IQ Test

The Third Department determined the extent of allowable discovery re: non-parties in a lead-paint-injury case.  The defense sought medical and academic records of plaintiff’s mother and siblings, all non-parties, and sought to compel the mother to undergo an IQ test.  The Third Department held that the non-party medical records were not discoverable (except for the mother’s records during pregnancy), the non-party academic records should be submitted to the court for in camera review, and the mother should not be compelled to undergo an IQ test:

A subdivision of the main disclosure statute provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable” (CPLR 3101 [b]). Medical records are protected by a doctor-patient privilege and cannot be disclosed without consent or a waiver of the privilege (see CPLR 4504 [a]…). A plaintiff waives the privilege by commencing an action that places his or her mental or physical condition at issue, but nonparties are not subject to having their medical histories made public merely because a relative commences an action … . As plaintiff’s mother and siblings did not consent and have not waived that privilege, Supreme Court should not have ordered disclosure of their medical records … . An exception exists for the mother’s medical records during the time of her pregnancy with and birth of plaintiff, but plaintiff has already provided an authorization for those records … .

Regarding the mother’s and siblings’ academic records, defendants have submitted an expert affidavit, as noted above, indicating that those records are relevant and necessary to determine whether other factors caused plaintiff’s injuries … . Considering that these records are private but not privileged, Supreme Court reasonably balanced defendants’ need for them and their possible relevance against the burden to these nonparties from disclosure, requiring that the siblings’ records be produced to the court for an in camera review … . The mother’s academic records should similarly be submitted to the court for review and redaction of any privileged material. …

Defendants’ need for her IQ test results, however, are not outweighed by the burden on her to undergo such a test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff’s condition, such as all of the factors contributing to the mother’s IQ … . Considering the private and personal nature of the information sought and the potential delay due to myriad collateral issues, defendants should not be able to compel plaintiff’s mother, a nonparty, to undergo an IQ test … . Perez v Fleischer, 2014 NY Slip Op 008101, 3rd Dept 11-20-14

 

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