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Question of Fact Whether Hospital Vicariously Liable for Actions of Non-Employees

The Third Department determined there was a question of fact whether defendant hospital could be held vicariously liable for the actions of nonemployee doctors with respect to plaintiff’s decedent who was initially treated in the emergency room.  The court explained the applicable law:

Under settled law, a hospital ordinarily may not be held liable for the negligent acts of treating physicians who are not hospital employees … . Vicarious liability for malpractice on the part of nonemployee physicians may be imposed, however, on a theory of ostensible or apparent agency … . “‘Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority’ to act on behalf of the principal” … . Consequently, “a hospital may [face vicarious liability] for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician” … . Friedland v Vassar Bros Med Ctr, 2014 NY Slip Op 05388, 3rd Dept 7-17-14

 

Fact that a Sidewalk Is Smooth (Inherently Slippery) or Slippery When Wet Is Not an Actionable Defect

The First Department noted that the facts that a sidewalk is inherently slippery because of its smoothness or that it is slippery when wet are not actionable defects:

The mere fact that a sidewalk is “inherently slippery” by reason of its smoothness or becomes more slippery when wet does not constitute an actionable defect … . Plaintiff’s expert’s finding lacked probative force and failed to raise a triable issue of fact as to the existence of a defective or dangerous condition in the absence of any assertion of a violation of a specific, applicable industry standard which contributed to the accident … .

* * *[Plaintiff’s] claim that granite constituted an “unapproved non-concrete material” is unsupported. Bock v Loumarita Realty Corp, 2014 NY Slip Op 04426, 1st Dept 6-17-14

 

Riser In Church Was Not an Actionable Condition

The Second Department determined a riser, upon which plaintiff allegedly tripped, was an open and obvious and not inherently dangerous:

The injured plaintiff allegedly tripped and fell over a 5½-inch-high, single-step riser while exiting a church pew. * * *

While a landowner has a duty to maintain its premises in a reasonably safe manner …, a landowner 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 defendant established its entitlement to judgment as a matter of law by submitting evidence that the subject riser was open and obvious and not inherently dangerous … . The evidence presented by the plaintiffs in opposition, including the affidavit of their expert, failed to raise a triable issue of fact … . Coppola v Cure of Ars RC Church, 2014 NY Slip Op 05297, 2nd Dept 7-16-17

 

Triable Issues of Fact Re: Whether Property Owner Liable for Allowing Third Parties to Operate Remote Control Cars On Its Parking Lot—Motorcyclist Injured When Attempting to Avoid a Remote Controlled Car

The Second Department determined summary judgment was properly denied to the property owner (Farmingdale) which was aware its  parking lot was being used for radio remote control cars.  Plaintiff alleged he was injured when he tried to avoid a remote control car while riding his motorcycle:

“A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others” … . However, “[t]his duty [only] arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so” … . A property owner cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience ” that there is a likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor'” … .

Under the circumstances here, Farmingdale failed to eliminate all triable issues of fact as to whether it had the knowledge, authority, or opportunity to control the conduct of the third parties operating the radio remote control cars in the subject parking lot, and as to whether the conduct of the third parties in the parking lot posed a reasonably foreseeable risk of harm to others … . Tiranno v Warthog Inc, 2014 NY Slip Op 05322, 2nd Dept 7-16-14

 

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Black Letter Law Re: Rear-End Collisions and Premature Summary Judgment Motions Explained

In affirming the grant of summary judgment to the plaintiff in a rear-end collision case, the Second Department provided the black letter law on rear-end collisions and on whether a summary judgment motion is premature:

When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle … . Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident … . “A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” … . * * *

CPLR 3212(f) provides, in relevant part, that a court may deny a motion for summary judgment “[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212[f]…). ” This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion’ ” … . A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]…). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” … . Singh v Avis Rent A Car Sys Inc, 2014 NY Slip Op 05320, 2nd Dept 7-16-14

 

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Delay In Arrival of an Ambulance During a Snow Storm Not Actionable

The causes of action against the city based upon delay in the arrival of an ambulance during a snow storm were dismissed.  The Second Department determined that both the ambulance service and the snow removal were governmental functions and, in the absence of a special relationship with the decedent, were not actionable:

A municipal emergency response system is “a classic governmental, rather than proprietary, function” … . Contrary to the plaintiffs’ contentions, the amended complaint fails to allege any facts tending to show that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the amended complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the amended complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the plaintiffs’ 911 call … . Estate of Radvin v City of New York, 2014 NY Slip Op 05302, 2nd Dept 7-16-17

 

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Claimant’s Inculpatory Statement Demonstrated to Be Product of Police Misconduct

Fourth Department affirmed the judgment against the state for wrongfull conviction and imprisonment.  After nine years of imprisonment for attempted murder, another came forward and credibly confessed to the crime.  The claimant was released and sued the state.  The state argued on appeal that, because the claimant made an inculpatory statement, the proof that he did not bring about his own conviction was insufficient.  In rejecting that argument, the court explained:

Claimant consistently maintained his innocence and contended that his inculpatory statement was coerced. “[A] coerced false confession does not bar recovery under section 8-b because it is not the claimant’s own conduct’ within the meaning of the statute” … . It is well settled that “[t]he voluntariness of a confession can only be determined through an examination of the totality of the circumstances surrounding the confession” … . “Relevant criteria include the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee” … . The use or misuse of a polygraph examination is also a factor to be considered in determining whether there was impermissible coercion … .

Here, we conclude that the record fully supports the court’s determination that claimant’s inculpatory statement was the product of police misconduct … . Claimant was awake for 34 hours before making his only inculpatory statement, which was the second statement he made. He had been interrogated for 15 hours in a six- by eight-foot windowless room. He ate nothing and drank only one can of soda and, although he was a heavy smoker, he had no cigarettes in the prior four or five hours. He remained under the severe emotional trauma of having seen his wife in a horrible bloodied and battered condition. Claimant was advised that, if he took a polygraph exam and passed, he would be permitted to go home.

Notably, the polygraph operator expressed significant concern to fellow officers about the reliability of the polygraph exam because claimant was “somewhat physiologically unresponsive to the polygraph.” Gristwood v State of New York, 2014 NY Slip Op 05259, 4th Dept 7-11-14

 

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New York’s Seatbelt Defense Applies to Action Stemming from Pennsylvania Accident (Where There Is No Seatbelt Defense)—Defense Is Not a Conduct-Regulating Law (Which Would Trigger the Application of Pennsylvania Law)—Rather the Defense Relates to the Allocation of Damages (Which Supports the Application of New York Law)

The Fourth Department determined New York’s “failure to wear a seatbelt” defense applied in an action stemming from an accident in Pennsylvania involving New York residents.  The court explained the operative criteria:

Plaintiff contends that the court erred in denying her motion because New York’s seat belt affirmative defense regulates conduct, and thus does not apply in a tort dispute arising from an accident that occurred in Pennsylvania. We reject that contention. “Conduct-regulating rules have the prophylactic effect of governing conduct to prevent injuries from occurring” … . ” If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders’ ” … . Conversely, where the conflicting laws serve only to allocate losses between the parties, such as vicarious liability or comparative negligence rules, the jurisdiction where the tort occurred has only a minimal interest in applying its own law … .

Here, the conflicting laws relate to whether there is a valid affirmative defense of seat belt nonuse. Pennsylvania law prohibits the presentation of evidence of seat belt nonuse … , while New York law allows the trier of fact to consider a plaintiff’s failure to wear an available seat belt only in assessing damages and the plaintiff’s mitigation thereof … . We therefore conclude that the court properly determined that the seat belt defense “allocate[s] losses after the tort occurs” … . Lankenau v Patrick K Boles, M & S Leasing Co LLC, 2014 NY Slip Op 05255, 4th Dept 7-11-14

 

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Party Moving for Summary Judgment May Not Submit Expert Affidavits With the Identity of the Expert Redacted

In the summary judgment context, the Third Department determined the moving party in a medical malpractice action, unlike the non-moving party, could not submit affidavits from experts with the names of the experts redacted:

In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to “tender[] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” … . Among other submissions, defendants provided an affidavit from a medical expert whose identity was redacted and who opined on the appropriateness of plaintiff’s medical care and the adequacy of the warnings given to plaintiff.efendants also submitted an unredacted version of the affidavit for Supreme Court’s in camera review. Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion … .

While the Legislature has allowed for some protection from disclosure of the identities of medical experts during “[t]rial preparation” (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts’ identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation …, the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action. Further, we see no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor … . Requiring a movant to reveal an expert’s identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion … . Further, any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions … . For these reasons, we will not consider the incompetent affidavit of defendants’ medical expert. Rivera v Albany Med Ctr Hosp, 2014 NY Slip Op 05236, 3rd Dept 7-10-14

 

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No Sanction for Automatic Destruction of Video Recordings of Accident Scene after 21 Days—Counsels’ Original Request for Video Recording at the Time of the Accident Was Complied With—Counsel Subsequently Asked for Six Hours of Recording Prior to the Accident—By the Time of that Request the Videotape Had Been Automatically Destroyed

The First Department, over a dissent, determined Supreme Court properly denied plaintiff’s motion for sanctions based upon allegations of spoliation of evidence.  In response to plaintiff’s counsel’s initial request, 84 seconds of videotape depicting plaintiff’s slip and fall were preserved. Subsequently plaintiff’s attorney requested video of the six hours preceding the accident.  By that time, however, the tapes had been automatically erased:

On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind,” which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party’s claim or defense … . In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . * * *

While it is true that a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and “should not be compelled to accept defendant’s self-serving statement concerning the contents of the destroyed tapes” … , this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff’s request for them. That obligation would impose an unreasonable burden on property owners and lessees.   Duluc v AC & L Food Corp, 2014 NY Slip Op 05243, 1st Dept 7-10-14

 

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