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Criteria for Negligent Misrepresentation Cause of Action Explained

The First Department determined the complaint sufficiently alleged a cause of action for negligent misrepresentation and laid out the criteria, including a “special relationship” close to privity:

To properly assert a claim on a theory of negligent misrepresentation, a plaintiff must plead: “(1) that the existence of a special or privity-like relationship imposed a duty on the defendant to impart correct information to the plaintiff; (2) that the imparted information was actually incorrect; and (3) that the plaintiff reasonably relied on the information” … .

As to the first element, a court will find a special relationship if the record supports “a relationship so close as to approach that of privity” … or, stated another way, the “functional equivalent of contractual privity” … . Under this standard, before liability for negligent misrepresentation may attach in favor of a third party, there must be: (1) an awareness by the maker of the statement that the statement is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance… . North Star Contr Corp v MTA Capital Constr Co, 2014 NY Slip Op 06238, 1st Dept 9-18-14

 

Plaintiff’s Inability to Identify Cause of Fall Requires Dismissal

Plaintiff’s inability to identify the cause of her fall required dismissal:

“In a slip-and-fall case, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Smith v Jesadan Meat Corp, 2014 NY Slip Op 06194, 2nd Dept 9-17-14

 

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Governmental Immunity Re: Plaintiff Does Not Insulate Governmental Defendants from Contribution Claim by Another Defendant to Whom the Governmental Defendants Owed a Duty of Care

The Second Department affirmed the dismissal of an action against the governmental defendants (the “appellants”) based upon governmental immunity.  The appellants had referred one Smith to another defendant, the North Amityville Community Economic Council (NACEC), as a potential employee.  The appellants had agreed not to refer anyone with a criminal record to NACEC.  Smith was a sex offender who was hired by NACEC.  Smith sexually assaulted the plaintiff at the NACEC facility.  After explaining the relevant immunity criteria in depth, the Second Department determined Supreme Court properly dismissed the action against the appellants.  The Second Department also determined Supreme Court properly refused to dismiss the cross-claims against the appellants by NACEC, noting that governmental immunity did not protect the appellants from a contribution claim by a defendant to whom the appellants owed a duty of care:

Here, the appellants established, prima facie, their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the ground of governmental immunity by demonstrating that they did not voluntarily assume a special duty to the plaintiff … . Furthermore, the plaintiff does not allege that the appellants violated any statutory duty, and the appellants established that they did not assume positive direction and control in the face of a known, blatant, and dangerous safety violation … .

“[A] defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a procedural bar or because of a substantive legal rule. A contribution claim can be made even when the contributor has no duty to the injured plaintiff. In such situations, a claim of contribution may be asserted if there has been a breach of a duty that runs from the contributor to the defendant who has been held liable” … . Here, the appellants agreed not to refer anyone to NACEC who had a criminal background. Nonetheless, Smith, who was a level three sex offender, was referred to NACEC by the appellants. Under these circumstances, there is a triable issue of fact as to whether the appellants breached a duty of care to NACEC … . Tara NP v Western Suffolk Bd of Coop Educ Servs, 2014 NY Slip Op 06189, 2nd Dept 9-17-14

 

Driver of Lead Vehicle Entitled to Summary Judgment in Rear-End Collision Case

The Second Department determined that the defendant driver who was struck from behind was entitled to summary judgment.  The court explained the relevant law, noting that the bare allegation the lead vehicle stopped short is not enough to raise a question of fact about the negligence of the lead driver:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . “As a general rule, a rear-end collision 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'” … . This is true whether the lead vehicle is stopped or stopping … .

Where 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 … . Billis v Tunjian, 2014 NY Slip Op 06044, 2nd Dept 9-10-14

 

Defendants Entitled to Summary Judgment in Slip and Fall Case Under the Storm in Progress Rule

The Second Department determined defendants demonstrated they were entitled to summary judgment in a slip and fall case pursuant to the “storm in progress” rule:

A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow and ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition … . “Under the storm in progress’ rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . “However, once a property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … .

Here, the evidence submitted by the defendants in support of their motion for summary judgment, including certified climatological data and transcripts of the deposition testimony of the parties, demonstrated, prima facie, that a storm was in progress at the time of the accident … . Furthermore, the defendants established, prima facie, that their efforts to remove snow and ice from the platform did not create a hazardous condition or exacerbate the natural hazard created by the storm … . Talamas v Metropolitan Transp Auth, 2014 NY Slip Op 06196, 2nd Dept 9-17-14

 

Emergency Doctrine Explained—Bicyclist Fell In Defendant’s Lane of Traffic–Question of Fact Whether Emergency Doctrine Applied

The Second Department determined there was a question of fact whether the emergency doctrine relieved the defendant driver of liability for striking plaintiff bicyclist.  The bicyclist fell in defendant’s lane of traffic after striking the opening door of a parked vehicle.  The court explained the emergency doctrine as follows:

“The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternate courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency” … . ” This is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains that of a reasonable [person] under the given circumstances, except that the circumstances have changed'” … . “Both the existence of an emergency and the reasonableness of a party’s response thereto will ordinarily present questions of fact” … .  Mohr v Carlson, 2014 NY Slip Op 06067, 2nd Dept 9-10-14

 

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Paving Over Walk Where Plaintiff Fell Justified Striking the Answer and Granting Summary Judgment on Liability

The Second Department determined that the defendant’s paving over the walkway where plaintiff fell justified striking the answer and granting the plaintiff summary judgment on liability:

“The nature and the severity of the sanction [for spoliation] depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party” … . The determination of spoliation sanctions, whether the spoliation was intentional or negligent, lies within the broad discretion of the court … . “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to'” prove its claim or defense … .

Here, the Supreme Court providently exercised its discretion in striking the defendant’s answer and awarding the plaintiff summary judgment on the issue of liability since the defendant paved over the walkway after receiving notice that the plaintiff intended to inspect it and after his own expert was afforded an opportunity to inspect the walkway prior to it being covered in cement … . Lentini v Weschler, 2014 NY Slip Op 06062, 2nd Dept 9-10-14

 

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City’s Operation of a Parking Garage is a Proprietary Not Governmental Function—City Can Be Sued For Failing to Provide Adequate Safety to Patrons

The Second Department determined a wrongful death action against the city alleging failure to provide adequate safety measures in a parking garage (owned and operated by the city) could go forward.  The court determined the operation of the garage was a proprietary function and the city could therefore be sued:

The security deficiencies alleged by the plaintiffs do not involve governmental functions or arise out of a pure “exercise of discretion . . . with respect to [overall] security measures and the deployment of limited police resources” … . The instant matter does not involve allegations of, for example, the lack of patrol cars or officers on foot patrolling the garage and the lack of general police protection …, “mobilization of police resources for the exhaustive study of the risk of terrorist attack, the policy-based planning of effective counterterrorist strategy, and the consequent allocation of such resources” …, participation by a teacher in supervising a playground as part of a school district’s overall security system strategy …, or a policy decision with respect to how the issue of homelessness should be addressed … . Rather, the gravaman of the complaint is not that the City failed to properly allocate government resources and services to the public at large, which was utilizing the garage, but that it failed in its capacity as a commercial owner of a public parking garage to meet the basic proprietary obligation of providing minimal security for its garage property via lighting, alarms, cameras, and warning signs. These measures are within the normal range of security measures necessary to satisfy the duty of care owed by any landlord or commercial property owner to its tenants or invitees. In the “continuum of responsibility to individuals and society deriving from its governmental and proprietary functions,” the lapses complained of encompass a failure to maintain the reasonable security measures expected of any landlord … .

Since the City acted in its proprietary, rather than its governmental, capacity here, we must consider the issue of whether or not the attack upon the decedent was foreseeable in light of a landlord’s duty to take minimal precautions to protect its tenants and invitees from foreseeable harm … . Here, the Supreme Court correctly determined that triable issues of fact existed as to the foreseeability of an attack upon the decedent, thus precluding the award of summary judgment to the City … . Granata v City of White Plains, 2014 NY Slip Op 06053, 2nd Dept 9-10-14

 

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County’s Failure to Demonstrate Proper Maintenance of Sewer System Precluded Summary Judgment

The Second Department determined the county was not entitled to summary judgment dismissing a complaint based upon negligent maintenance of a sewer system:

A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” … . However, a municipality “is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature” … . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no ” notice of a dangerous condition,'” and that “it regularly inspected and maintained the subject sewer line” … .

Here, although there is nothing in the record to show that the defendant County of Suffolk had prior notice of a dangerous condition in the subject sewer system, the County’s proof regarding its regular inspection and maintenance of the sewer system was deficient. Gugel v County of Suffolk, 2014 NY Slip Op 06054, 2nd Dept 9-10-14

 

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Guilty Plea Precluded Litigation on Liability

The Second Department noted that a guilty plea in a criminal matter (in which plaintiff was injured by the defendant) can bar the convicted defendant from litigating liability in the related civil matter under the doctrine of collateral estoppel:

…[L]iability was established in accordance with the legal principle that ” [w]here a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of . . . liability'” … . Abdelzaher v Sallustio, 2014 NY Slip Op 06040, 2nd Dept 9-10-14

 

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