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Negligent Supervision Cause of Action Properly Survived Summary Judgment—Question of Fact Raised Whether Criminal Act by Defendant’s Employee Was Foreseeable

Plaintiff’s child was injured when assaulted by an employee of defendant New York City Transit Authority (NYCTA) during the course of a NYCTA community service program.  The Second Department determined defendant could not be held liable under the doctrine of respondeat superior because the actions of the employee were outside the scope of employment.  However, the cause of action for negligent supervision properly survived the motion for summary judgment because there was a question of fact whether the criminal act of the employee was foreseeable:

“Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the evidence submitted by the NYCTA demonstrated that Clay’s conduct clearly was not in furtherance of the NYCTA’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . * * *

The Supreme Court properly denied that branch of the NYCTA’s motion which was for summary judgment dismissing so much of the complaint as alleged that it negligently supervised the plaintiff’s child. The standard for determining whether a duty to supervise a minor was breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision” … . “Where third-party criminal acts intervene between defendant’s negligence and plaintiff’s injuries, the causal connection may be severed, precluding liability. The criminal intervention of third parties may, however, be a reasonably foreseeable’ consequence of circumstances created by the defendant” … . Mayo v New York City Tr Auth, 2015 NY Slip OP 00342, 2nd Dept 1-14-15

 

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Question of Fact Whether Defendant’s Snow Removal Efforts Created Dangerous Condition (Black Ice)

The Second Department determined there was a question of fact whether the defendant had created the dangerous condition (black ice) on its property by its snow removal efforts:

A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it … . Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition … .

In support of its motion, the defendant failed to eliminate all triable issues of fact as to whether the patch of black ice upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts in the days prior to the accident … . Smith v New York City Hous Auth, 2015 NY Slip Op 00355, 2nd Dept 1-14-15

 

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Questions of Fact Raised About Whether the Risks of Participating in a Self-Defense Tournament Were Concealed and Unreasonably Increased and Whether Infant Plaintiff Was Negligently Supervised

The Second Department determined the school district’s motion for summary judgment was properly denied because plaintiff had raised triable questions of fact about whether infant plaintiff assumed the risk of injury in a self-defense tournament and whether the school was negligent in supervising the self-defense tournament:

The infant plaintiff allegedly was injured while competing in her high school’s “self-defense tournament,” a voluntary competition open to female students who were enrolled in a self-defense class taught by Joseph Biddy, a physical education teacher. The self-defense class was one of several electives that female students could take to satisfy the district’s physical education requirement. The plaintiffs allege, inter alia, that, since the self-defense class was in actuality a mixed martial arts class, the defendant breached its duty of care to the infant plaintiff by allowing the class to be instructed by a person with little martial arts training, and allowing that person to referee the tournament. The plaintiffs contend that the infant plaintiff and the other students in the class were not properly or sufficiently trained and that Biddy did not have the requisite knowledge and experience to recognize the dangers posed by the moves being performed in the tournament. * * *

“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” … . “[T]he plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist” … . However, the doctrine of primary assumption of risk does not apply to bar a cause of action where the risks at issue were unassumed, concealed, or unreasonably increased … .

On its motion for summary judgment, the defendant failed to establish, prima facie, that by voluntarily participating in the self-defense tournament, the infant plaintiff consented to the risks associated with the move that ultimately caused her injuries. Rather, the defendant’s submissions demonstrated that the risks of the move that ultimately caused the infant plaintiff’s injuries were concealed and unreasonably increased. Pierre v Ramapo Cent Sch Dist, 2015 NY Slip Op 00348, 2nd Dept 1-14-15

 

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Owners/Occupiers of a Single Family Residence Not Responsible for Maintaining Abutting Sidewalk Pursuant to the NYC Administrative Code

The Second Department exercised its discretion to hear an appeal which had been dismissed for failure to perfect and affirmed the dismissal of the complaint.  Defendants owned and occupied a single-family residence.  Therefore, pursuant to the Administrative Code of the City of New York, defendants were not responsible for maintaining the sidewalk abutting the property:

On February 20, 2008, the injured plaintiff allegedly tripped and fell on a sidewalk abutting the defendants’ property. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes (see Administrative Code of City of NY § 7-210[b]), thus exempting them from liability pursuant to Administrative Code of the City of New York § 7-210(b) for the alleged failure to maintain the sidewalk abutting their property … . Saunders v Tarsia, 2015 NY Slip Op 00352, 2nd Dept 1-14-15

 

Plaintiff Was Unable to Pinpoint the Cause of Her Fall—“Feigned Issue” Raised In an Affidavit Could Not Stave Off Summary Judgment

The Second Department determined plaintiff’s inability to identify the cause of her fall was fatal to the lawsuit:

“A plaintiff’s inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Here, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion, in which she identified the cause of her fall as “water or cleaning liquid that was on the floor,” merely raised what clearly appears to be a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . Trapani v Yonkers Racing Corp, 2015 NY Slip Op 00357, 2nd Dept 1-14-15

 

Inherent Smoothness of a Floor Is Not an Actionable Defect

In affirming the dismissal of the complaint in a slip and fall case alleging the presence of water on a vestibule floor, the Second Department noted the allegation that a floor was inherently slippery because of its smoothness is not an actionable defect:

While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … .

In support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create any dangerous condition in the vestibule area, or have actual or constructive notice of any such condition prior to the plaintiff’s accident … . In opposition to the defendant’s prima facie showing, the plaintiff relied almost exclusively on the affidavit of an expert, which failed to raise a triable issue of fact. To the extent that the expert opined that the vestibule floor was inherently slippery due to its smoothness, that is not an actionable defect … . Beceren v  Joan Realty LLC, 2014 NY Slip OP 00324, 2nd Dept 1-14-15

 

Although Defendant Was Not Responsible for the Pedestrian Ramp, There Was a Question of Fact Whether Defendant’s Snow Removal (from the Ramp) Created the Dangerous Condition

The Second Department determined a question of fact had been raised about whether defendant is liable for a slip and fall on a pedestrian ramp.  Although, by virtue of a city regulation, defendant was not responsible for the ramp, there was a question whether defendant’s snow-removal created the dangerous condition (black ice):

…[T]he defendant established, prima facie, that the area in which the plaintiff alleged that she slipped and fell was part of a pedestrian ramp, for which it was not responsible (see Administrative Code of City of NY § 7-210). However, a property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm … . Here, the defendant failed to eliminate all triable issues of fact as to whether the black ice condition upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts … . Herskovic v 515 Ave I Tenants Corp, 2015 NY Slip Op 00334, 2nd Dept 1-14-15

 

Competing Expert Affidavits Raised a Question of Fact About Whether the Speed of Defendant’s Vehicle Was a Proximate Cause of the Accident—Plaintiff’s Vehicle Was Struck Broadside by Defendant’s Vehicle When Plaintiff Pulled Into Traffic–Supreme Court’s Grant of Summary Judgment to Defendant Reversed

The Third Department determined that plaintiff had raised a question of fact whether the speed of defendant’s vehicle was the proximate cause of the accident.  Plaintiff had pulled into traffic and was struck broadside by defendant. Supreme Court had granted defendant’s motion for summary judgment:

It is uncontested that plaintiff’s portion of the intersection was controlled by a blinking red light, and that she was therefore required to yield the right-of-way to oncoming vehicles that were “approaching so closely . . . as to constitute an immediate hazard” (Vehicle and Traffic Law § 1142 [a]; see Vehicle and Traffic Law § 1113 [a]). * * *

In opposition to defendant’s motion, plaintiff submitted the affidavit of a certified accident reconstructionist and former police officer. Using the same data as defendant’s expert, plaintiff’s expert concluded that, at the time defendant began braking, she was traveling at a faster speed of 49.95 mph, and he opined that had defendant not been exceeding the speed limit, plaintiff would have had sufficient time to safely clear defendant’s lane of travel and complete her turn. * * * The two experts utilized the same data and, while they arrived at different conclusions with respect to defendant’s speed, “a disagreement . . . between experts merely creates a question of credibility to be resolved by the finder of fact” … .

Upon a defendant’s motion, the evidence must be viewed in the light most favorable to the plaintiff … . It is well established that “there may be more than one proximate cause of an accident” … . Upon review, we find that plaintiff’s evidence gives rise to material issues of fact as to whether defendant’s speed was excessive and, if so, whether her speed was a proximate cause of the collision … . O’Brien v Couch, 2015 NY Slip OP 00273, 3rd Dept 1-8-15

 

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Leasing Company Which Never Had Possession of the Product (Here a Garbage Truck) and Which Was a Financial Arm of the Purchaser, Not the Manufacturer, of the Product, Entitled to Dismissal of Strict Products Liability Cause of Action/However, a Question of Fact Was Raised Whether the Finance Lessor Was Liable for Failure to Inspect the Product on the Ground It Had Designated an Agent for Inspection on Its Behalf

The Fourth Department, over a two-justice dissent, determined Supreme Court should have granted summary judgment dismissing the strict products liability cause of action against a “finance lessor” of a garbage truck, H Leasing Company.  The lawsuit stemmed from an accident involving the truck.  The court explained that a strict products liability action will not lie against a “finance lessor” which is not in the business of leasing equipment to the general public, which never had possession of the leased equipment, which was not a financial arm of the manufacturer, and which neither marketed the product nor placed it in the stream of commerce.  Here H Leasing Company was a financial arm of the purchaser of the truck:

“It appears universally accepted as New York law that strict products liability will not apply to finance lessors which merely offer the use of money to acquire goods but otherwise neither market a product nor place it in the stream of commerce” … . We reject plaintiff’s contention that H Leasing is the owner and lessor of the truck, and it is therefore subject to strict products liability because it is in the business of leasing equipment. The cases permitting strict products liability actions against lessors involve leasing entities that either actually take possession of the equipment at issue and lease it to the public …, or are financing arms of the manufacturer … . In those situations, the principles of strict products liability may properly be applied to such lenders in order to further the policy goals of such liability, i.e., ensuring that products are safe by permitting an action to go forward “when imposing liability would provide injured consumers with a greater opportunity to commence an action against the party responsible, fix liability on one who is in a position to exert pressure on the manufacturer to improve the safety of the product, or ensure that the burden of accidental injuries occasioned by products would be treated as a cost of production by placing liability upon those who market them” … . Such goals would not be served by allowing a strict products liability cause of action against H Leasing, however, because it did not take possession of the truck, it is not in the business of leasing equipment to the general public, and it is a financial arm of the purchaser of the truck, not the manufacturer … . Consequently, we agree with H Leasing “that strict products liability should not be imposed upon [it], a finance lessor which merely offered the use of money and neither marketed the machine nor placed it in the stream of commerce” … . Houston v McNeilus Truck & Mfg Inc, 2015NY Slip Op 00001, 4th Dept 1-2-15

In a separate decision in the same case, again over a two-justice dissent, the Fourth Department determined that a cause of action against H Leasing alleging negligent failure to inspect the truck properly survived a summary judgment motion.  The allegation that H Leasing designated the company which leased the truck as its agent for the inspection of the truck raised a triable question of fact:

Here, the lease for the garbage truck, which was submitted in support of H Leasing’s motion for summary judgment, stated in relevant part that H Leasing appointed decedent’s employer as its agent for purposes of inspection and acceptance of the garbage truck from the supplier. Moreover, a vice-president of H Leasing, who was decedent’s employer, acknowledged at his deposition, that the lessees inspected the equipment upon delivery in their capacities as H Leasing’s agents as “laid out in the lease agreement,” and that deposition testimony was also submitted in support of H Leasing’s motion. Viewing those submissions in the light most favorable to plaintiff and affording her the benefit of every reasonable inference, we conclude that H Leasing’s own submissions raise a triable issue of fact whether it was liable in negligence for the failure of one of its agents, decedent’s employer, to inspect and warn of a dangerous condition. Houston v McNeilus Truck & Mfg Inc, 2015 NY Slip OP 00002, 4th Dept 1-2-15

 

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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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