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Rear-End Collision Liability Explained

The Second Department determined the plaintiffs’ motion for summary judgment in a rear-end collision case should have been granted.  The court explained the relevant analysis:

The driver of an automobile is required to maintain a safe distance between his or her own vehicle and the vehicle in front of him or her (see Vehicle and Traffic Law § 1129[a]…). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . Once the movant has established his or her entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … . A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference of negligence on the part of the driver of the following vehicle … . Cheow v Cheng Lin Jin, 2014 NY Slip Op 07337, 2nd Dept 10-214

 

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Client May Pursue a Legal Malpractice Action Without Appealing the Ruling Upon Which the Malpractice Allegation Is Based Where It Has Not Been Demonstrated the Appeal Is Likely to Succeed

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the plaintiff's failure to appeal a ruling that plaintiff's action was time-barred did not preclude plaintiff from bringing a legal malpractice action against the attorneys who represented the plaintiff in the time-barred action.  The failure to appeal would only act as a bar to the legal malpractice action if the defendants demonstrated the appeal was likely to have succeeded:

Here, the Appellate Division adopted the likely to succeed standard employed by our sister states with a proximate cause element . We agree that this is the proper standard, and that prior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.

On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients' unfavorable result. Contrary to defendants' assertion that this standard will require courts to speculate on the success of an appeal, courts engage in this type of analysis when deciding legal malpractice actions generally … . Grace v Law, 2014 NY Slip Op 07089, CtApp 10-21-14

 

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Questions of Fact Raised About Whether Access to a Flat Roof through a Window and a Fall from the Roof Into an Unprotected Air Shaft Were Foreseeable

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined there were questions of fact about whether the applicable regulations and codes required that there be a railing around an air shaft, and whether it was foreseeable that plaintiff would gain access to the flat roof through a window and fall into the shaft.  The opinion includes a detailed description of the relevant building regulations.  With respect to foreseeability, the court wrote:

It is well settled that, as landowners, defendants have “a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances” … . The existence and scope of this duty is, in the first instance, a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks … .

The focus of our inquiry, therefore, is whether it was foreseeable that defendants' tenants and their guests would access the setback roof and be exposed to a dangerous condition from the absence of a railing or guard around the air shaft. * * *

…[H]ere, the setback roof was flat and of sufficient size and length to comfortably permit several individuals to stand or walk on it. Access to the roof was easily obtained through the hallway window, and neither plaintiff nor his friends had any difficulty exiting. … Here, the tenant of the apartment that plaintiff was visiting testified that he had stepped onto the roof through the window approximately 15 times in the two months preceding the accident to smoke cigarettes and that the previous tenant had often done the same. According to the resident, evidence of this use was visible because cigarette butts and garbage littered the roof. On this record …reasonable minds could differ as to whether plaintiff's use of the roof and his resulting fall were foreseeable, thereby precluding the grant of summary judgment to defendants on that ground. Powers v 32 E 31 LLC, 2014 NY Slip Op 07084, CtApp 10-21-14

 

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Out-of-Possession Landlord Not Liable Based Upon Right to Enter Premises to Make Repairs But May Be Liable as the Creator of the Dangerous Condition

In a case stemming from a fall from an allegedly defective ladder that was installed to gain access to a loft, the Third Department determined that an out-of-possession landlord was not liable based on a contractual reservation of the right to enter the premises to make repairs, but a question of fact had been raised about whether the out-of-possession landlord created the dangerous condition:

…[D]efendants were entitled to summary judgment as to the question of whether they were liable for plaintiff’s injuries based upon the provision in the lease retaining their right to enter the premises to make repairs. While a landlord who retains the right to enter the leased property to make repairs may be liable to injuries to third parties …, “only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord” … . Here, plaintiff’s expert opined that the condition of the ladder violated regulations found in the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1), the New York State Building Code and the Property Maintenance Code of New York. However, inasmuch as a violation of a regulation is insufficient to impose liability on an out-of-possession landlord pursuant to a reserved right to enter the premises …, plaintiff failed to raise a triable issue of fact.

We reach a different conclusion, however, as to whether defendants created the dangerous condition. Liability to a lessee’s employee for personal injuries may attach if the out-of-possession landlord affirmatively created the dangerous condition … . Although the former tenant hired an architect to design the plans for the premises, including the loft area and access ladder, defendants contracted and paid for the construction. Further, the record reflects that defendants took an active role in the construction project. Defendants and the tenant agreed to make changes to the architectural plans in order to cut costs, including changes to the design of the loft. While the architectural plan called for the ladder to be “mechanically fasten[ed] to surface of floor slab and at top edge to wood platform,” plaintiff’s expert opined, based upon his inspection of the site of the alleged accident, that the right stringer of the ladder was secured by three screws to an adjacent wall, not to the wood platform, and that the left stringer was not secured to the upper landing at all. Further, there was no evidence that the ladder was secured to the floor slab. Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition … . Boice v PCK Dev Co LLC, 2014 NY Slip Op 07042, 3rd Dept 10-16-14

 

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Verdict Finding Defendant’s Negligence Was Not the Proximate Cause of the Injury Set Aside as Against the Weight of the Evidence—Criteria Explained

The Second Department affirmed the setting aside of a liability verdict as against the weight of the evidence.  The jury had found the defendant negligent but determined the negligence was not the proximate cause of the injury. The court explained the relevant criteria:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … .

Under the circumstances of this case, the jury’s finding that the defendants were negligent but that their negligence was not a substantial factor in causing the subject accident was not supported by a fair interpretation of the evidence … . Accordingly, the Supreme Court properly granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. Batista v Bogopa Serv Corp, 2014 NY Slip Op 06933, 2nd Dept 10-15-14

 

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Criteria for Setting Aside a Verdict As a Matter of Law and As Against the Weight of the Evidence Described

In affirming the denial of motions to set aside the verdict in a medical malpractice case, the Second Department explained the criteria for setting aside a verdict as a matter of law and as against the weight of the evidence:

“A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … . * * *

Furthermore, “[a] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . ” Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors'” … . We accord deference to the credibility determinations of the jury as factfinder, which had the opportunity to see and hear the witnesses … . Applying these principles to the facts of this case, the jury’s determination that the defendant departed from good and accepted nursing practice and that such departure was a proximate cause of the plaintiff[‘s] … injuries was supported by a fair interpretation of the evidence … . Messina v Staten Is Univ Hosp, 2014 Slip Op 06952, 2nd Dept 10-15-14

 

Defendant Failed to Demonstrate the Cause of Plaintiff’s Fall (a Ramp Outside a Building) Was Open and Obvious as a Matter of Law—Summary Judgment Should Not Have Been Granted

The Second Department determined the defendant was not entitled to summary judgment in a slip and fall case. The defendant argued the cause of the fall, a ramp outside the defendant’s building, was open and obvious.  The plaintiff alleged the area was not properly lit and the ramp could not be seen:

At about 5:30 p.m. on December 4, 2008, the injured plaintiff allegedly sustained personal injuries when he tripped and fell over a ramp outside a building owned by the defendant. The injured plaintiff testified at his deposition that, at the time of the accident, it was completely dark. He further testified that, as he was walking through the defendant’s parking lot, he did not see the ramp because its color blended into that of the surrounding pavement and because the parking lot was inadequately lit.

A landowner has a duty to maintain his or her property in a reasonably safe manner to prevent foreseeable injuries … . A landlord, however, has no duty to protect or warn against an open and obvious condition that is not inherently dangerous as a matter of law … . To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it … .

Here, the defendant failed to establish, prima facie, that the allegedly dangerous condition was open and obvious … . The issue of whether a dangerous condition is open and obvious is fact-specific …, and cannot be divorced from the surrounding circumstances … . Baron v 305-323- E Shore Rd Corp, 2014 NY Slip Op 06932, 2nd Dept 10-15-14

 

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Town’s Duty to Maintain Roadways in a Safe Condition Extends to the Maintenance of Trees Not Located on Town Property—Here a Tree Limb Fell Onto Plaintiffs’ Moving Vehicle

The plaintiffs were injured when a limb fell from a tree onto their moving vehicle.  The defendant town moved for summary judgment, alleging that the tree was not located in the town’s right of way and the town did not therefore owe a duty to the plaintiffs.  The Second Department disagreed:

The Town’s duty to maintain its roadways in a reasonably safe condition extends to the maintenance of trees, adjacent to a road, that could reasonably be expected to pose a danger to travelers … . Contrary to the Town’s contention that it owed no duty to the plaintiffs by virtue of the fact that it did not own, maintain, or control the subject tree or the location of that tree, “the exact location of the tree with respect to the Town’s right of way is not dispositive” of the issue of the Town’s duty … . Accordingly, the Town failed to establish its prima facie entitlement to judgment as a matter of law, and the Supreme Court correctly denied the Town’s cross motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers … . Piscitelli v County of Suffolk, 2014 NY Slip Op 06961, 2nd Dept 10-15-14

 

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Nurse Acting Under a Doctor’s Supervision Generally Cannot Commit Malpractice—Judgment Dismissing Nurse’s Complaint As a Matter of Law Pursuant to CPLR 4401 Was Properly Granted

The Second Department explained that a nurse acting under a doctor’s supervision and not exercising independent medical judgment generally cannot be liable for medical malpractice.  Here the nurse’s motion to dismiss the complaint pursuant to CPLR 4401 as a matter of law was properly granted:

“[C]ourts have recognized that a nurse who renders treatment can play a significant role [in a patient’s care] and is capable of committing malpractice” … . However, a nurse whose work is supervised by a physician and who does not exercise independent medical judgment cannot be liable for medical malpractice unless the directions from the supervising physician so greatly deviate from normal medical practice that the nurse should be held liable for failing to intervene, or the nurse commits an independent act that constitutes a departure from accepted medical practice … .

Here, while there was evidence that the defendant Elizabeth Vilanova, a certified registered nurse anesthetist, played an active role in the decedent’s operation, it was established that she was acting under the direct supervision of the attending anesthesiologist the entire time and did not exercise any independent medical judgment, nor did she commit an independent act constituting a departure … . Yakubov v Jamil, 2014 NY Slip Op 06966, 2nd Dept 10-15-14

 

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Failure to Submit Expert Affidavit In Support of Meterological Data Precluded Summary Judgment Based Upon Defendant City’s Assertion It Did Not Have Sufficient Time to Remove Snow and Ice from a Sidewalk

The First Department, over a dissent, determined summary judgment should not have been granted to the defendant city in a slip and fall case.  The city argued that it did not have sufficient time to address the snow and ice on the sidewalk, and submitted meterological data without an expert affidavit.  The First Department determined the absence of an expert affidavit precluded summary judgment:

“Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident” … . Accordingly, because it failed to offer an expert opinion, in addition to the meteorological records, the City’s motion should have been denied without regard to the sufficiency of plaintiff’s papers in opposition … . While, as the dissent notes, no expert affidavit was required by this Court in Daley v Janel Tower L.P. (89 AD3d 408 [1st Dept 2011]), it is worth noting that there it was hardly needed.  it is worth noting that there it was hardly needed. That is because in Daley “the climatological reports showed that it last snowed more than one week prior to plaintiff’s fall and that during the three-day period prior to plaintiff’s fall, temperatures remained well above freezing” (89 AD3d at 409). Here, by contrast, the climatological reports showed that, except for a few hours of above-freezing temperatures and non-freezing rain, temperatures generally remained below freezing for the entire period between the December 19 storm and the accident four days later. Plaintiff’s expert opined that these conditions were suitable for the ice that formed as a result of the initial storm to remain, but not for the formation of new ice, which the City would have had insufficient time to clear. Without an expert to interpret the meteorological record in a way that would disprove this theory, the City failed to establish a right to judgment as a matter of law. Rodriguez v Woods, 2014 NY Slip Op 06887, 1st Dept 10-14-14

 

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