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County Water Authority Had Standing to Bring Action Based Upon the Chemical Contamination of Its Wells—CPLR 214-c Governs Actions Based Upon Contamination—Action Was Untimely

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined that the plaintiff Suffolk County Water Authority (SCWA) had standing to bring a negligence/nuisance/trespass/products liability action against defendants alleging contamination of wells caused by chemicals (PCE and TCE).  However, the court determined the action was barred as untimely by CPLR 214-c.  In the course of the opinion, the court explained what the “two-injury” rule is in the context of a continuing wrong.  The court determined that CPLR 214-c was designed to eliminate the continuing-wrong statute of limitations calculation in contamination cases.  In addition, the court explained the difference between latent and patent injuries with respect to CPLR 214-c:

Generally, a plaintiff has standing to sue if it has suffered an injury in fact … in some way different from that of the public at large and within the zone of interests to be protected by relevant statutory and regulatory provisions … .

We reject the movants’ contention that the SCWA lacked standing to seek damages for injury to 115 wells where the PCE contamination level fell below the MCL (federal and state “maximum contamination level” for PCE). The MCL is only a regulatory standard which governs conduct in supplying water to the public. While the MCL may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury cannot have occurred … . Similarly, the MCL does not define whether an injury has occurred, since contamination below that level could result in some injury, such as increased monitoring costs … . It is undisputed that the SCWA has expended resources in its effort to address the widespread contamination, even at wells where the contamination has not risen to or exceeded the MCL. Thus, the SCWA has alleged that it has suffered an injury for which it may seek redress, irrespective of the level of contamination. * * *

CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of cases which held that toxic tort claims accrued upon the impact or exposure to the substance, even though the resulting injury or illness did not manifest itself until some time later … . CPLR 214-c provides for a three-year limitations period for actions to recover damages for injuries to person or property “caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property” (CPLR 214-c[2]). The three-year period is “computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c[2]…). For the purposes of CPLR 214-c, “discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … . Suffolk County Water Auth v Dow Chem Co, 2014 NY Slip Op 05420, 2nd Dept 7-23-14

 

A Slip and Fall Defendant Who Moves for Summary Judgment Must Demonstrate When the Area Where the Fall Occurred Was Last Inspected or Cleaned

The Second Department determined summary judgment should not have been granted to the defendant in a slip and fall case.  The defendant, who moved for summary judgment, failed to demonstrate when the wet area where plaintiff fell was last cleaned or inspected and thereby failed to make a prima facie showing of a lack of constructive notice of the condition:

In a slip-and-fall case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence … . While the defendant met her initial burden of making a prima facie showing that she did not create the condition and lacked actual notice of the wet spot, “[t]o meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, the defendant introduced no evidence as to when she had last cleaned or inspected the staircase relative to the time the plaintiff fell. She did not know when she last inspected the property before the subject accident …  Thus, the defendant did not establish, prima facie, that she lacked constructive notice of the alleged wet condition in the stairway … . Lamour v Decimus, 2014 NY Slip Op 04466, 2nd Dept 6-18-14

 

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No Special Duty Owed by School to School Employee Injured by Students Who Collided with Her

The Second Department determined that a school’s duty to supervise students does not extend to an adult school employee injured when two students collided with her:

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured … . Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a “special duty” to the students themselves … . Accordingly, a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established … . The special duty owed to the students themselves does not, however, extend, as a general matter, to teachers, administrators, and other adults on or off of school premises … .

Here, the defendants established, prima facie, that they did not owe the plaintiff a special duty… . Ferguson v City of New York, 2014 NY Slip Op 04464, 2nd Dept 6-18-14

 

Defendant Demonstrated It Did Not Have Constructive Notice of Condition Which Caused the Fall—Law of Constructive Notice Explained Re: Recurring Conditions/Latent Defects

The Second Department determined defendant was entitled to summary judgment in a slip and fall case because it demonstrated it did not have constructive notice of the condition which caused the fall.  Plaintiff was walking on a pallet in the stock room while unloading things.  After walking on the pallet three times, one of the boards apparently broke causing injury.  There was testimony that there was no sign the board was going to break prior to the accident.  The court explained the relevant law, including the law concerning recurring conditions and latent defects:

A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … .

When a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he or she can be charged with constructive notice of each specific reoccurrence of that condition … . A general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition causing the fall … . When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed … .

The Supreme Court properly concluded that the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating, through the submission of, inter alia, a transcript of the injured plaintiff’s deposition testimony, that it did not create the condition or have actual or constructive notice thereof. Schubert-Fanning v Stop & Shop Supermarket Co LLP, 2014 NY Slip Op 04474, 2nd Dept 6-18-14

 

Plaintiff’s Decedent Fell to His Death in a Gorge on Property Owned by Cornell University—Questions of Fact Re: Whether Plaintiff’s Decedent Was “Hiking” within the Meaning of the General Obligations Law (which Would Relieve the University of Liability) and Whether the Dangerous Condition Was Open and Obvious

The Third Department determined questions of fact had been raised about whether plaintiff’s decedent was “hiking” within the meaning of the General Obligations Law when he fell into a gorge to his death on property owned by defendant Cornell University in Ithaca.  The court also determined there was a question of fact whether the dangerous condition was open and obvious:

Defendant maintains that it is shielded from liability by General Obligations Law § 9-103 (1) (a), which, as pertinent here, “grants a special immunity to owners . . . from the usual duty to keep places safe” when individuals use their property for specified recreational activities, including hiking … . The enumerated activities covered under the statute “are essentially self-explanatory” …. “Hiking” has been described as “traveling through the woods on foot” … and as “traversing land ‘by foot or snowshoe for the purpose of pleasure or exercise'” … . Comparatively, this Court recently determined that a person walking her dogs on a paved walkway was not engaged in “hiking” under the statute …. With one exception not applicable here, a person engaged in one of the enumerated activities is “presumed to be doing so for recreational purposes” without regard to his or her subjective intent ….

The critical determination is whether decedent’s activity constituted “hiking” under the statute. As described, he ran down the gorge trail and, in that literal sense, was “traveling through the woods on foot,” or “hiking,” as defined in Sega v State of New York … . The statute, however, speaks to specified recreational categories reflecting the intent of the Legislature “to allow or encourage more people to use more accessible land for recreational enjoyment” … . Viewing the facts in the light most favorable to plaintiffs, the nonmoving party, we agree with Supreme Court that, under the distinctive fact pattern presented, defendant did not establish, as a matter of law, that decedent was “hiking” within the embrace of General Obligations Law § 9-103 (1) (a) at the time of his death … .  * * *

…[A] question of fact remains as to whether the cliff’s edge was visible and obvious or presented a latent, dangerous condition necessitating an appropriate warning… . King v Cornell Univ, 2014 NY Slip Op 05393, 3rd Dept 7-17-14

 

Questions of Fact Whether Handrail Which Did Not Extend to the Top of the Stairs Constituted a Dangerous Condition Which Proximately Caused Plaintiff’s Fall

The Third Department determined the fact that a handrail did not extend to the top of the stairs raised a question of fact about a dangerous condition of which the defendant had constructive notice:

The fact that the handrail only starts at the third step down the staircase presents a question for a factfinder to resolve as to whether this placement created a dangerous condition … .

Further, defendant did not meet its prima facie burden of demonstrating that the lack of a handrail extending to the top of the stairs did not cause or contribute to claimant’s fall … . “Even if [claimant’s] fall was precipitated by a misstep, given her testimony that she reached out to try to stop her fall, there is an issue of fact as to whether the absence of a handrail [at the top of the stairs] was a proximate cause of her injury” … . Likewise, the fact that claimant had used the stairs in the past and may have been aware of the defective condition did not defeat her claim but, rather, this “may be considered by a jury in assessing comparative negligence”… . Carter v State of New York, 2014 NY Slip Op 05394, 3rd Dept 7-17-14

 

Questions of Fact Whether Picnic Table Near the Edge of a Porch Was a Dangerous Condition and Whether the Condition Was Open and Obvious

The Third Department determined questions of fact had been raised about whether defendant created a dangerous condition in placing a picnic table near the edge of a porch that had no railing and whether the condition was open and obvious.  Plaintiff got up from the picnic table and fell off the edge of the porch, which was less than 29 inches from the ground (it was alleged no railing was required by the applicable codes):

…[The]evidence is sufficient to raise issues of fact as to whether defendant created a dangerous condition by negligently placing the picnic table close to the porch’s edge and failing to demarcate or guard this ledge … . Factual issues also exist as to whether defendant’s negligence, if any, was the proximate cause of Hannah’s injury, as this is not a case “‘where only one conclusion may be drawn from the established facts'” … .

Defendant also claims that it had no duty to warn of the alleged dangerous condition created by the unguarded drop-off at the porch’s edge, as any such hazard was open and obvious as a matter of law. “It is axiomatic that a landowner has no duty to warn of an open and obvious condition that is readily observable by the normal use of one’s senses, and this postulate applies to adults and minors alike” … . However, a landowner [*3]has a duty to warn against even known or obvious dangers where he or she “has reason to expect or anticipate that a person’s attention may be distracted, so that he or she will not discover what is obvious, or will forget what he or she has discovered, or fail to protect himself or herself against it” … . Here, upon considering all of the surrounding circumstances, including the nature and layout of the event being hosted by defendant …, we find that triable issues of fact exist as to whether the drop-off constituted an open and obvious hazard such that defendant was relieved of its duty to warn … . Jankite v Scoresby Hose Co, 2014 NY Slip Op 05390, 3rd Dept 7-17-14

 

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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

 

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Application to File Late Notice of Claim (30 Days Late) Should Have Been Granted—Respondents Had Notice of the Incident and Short Delay Did Not Affect Ability to Investigate

In concluding the application to file a late notice of claim should have been granted, the First Department explained the relevant analysis.  The court noted the city had timely notice of the incident and the 30 delay in filing the notice did not prejudice the city’s ability to investigate:

General Municipal Law § 50—e(5) confers upon the court “the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters” (Matter of Porcaro v City of New York, 20 AD3d 357, 358 [1st Dept 2005]). The statute provides, in pertinent part, that in determining whether to grant an extension of time to serve a notice of claim, a court shall consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the 90—day period specified in § 50—e(1) “or within a reasonable time thereafter” (§ 50—e[5]). Further, under the statute, the court must take into account all other relevant facts and circumstances, including, among other things, whether the petitioner offered a reasonable excuse for the late notice and whether the delay substantially prejudiced the respondent’s defense on the merits … . The presence or absence of any one factor, however, is not determinative … . Moreover, while the court has discretion in determining motions to file late notices of claim, the statute is remedial in nature, and therefore should be liberally construed … .

…[R]espondents had actual knowledge of the pertinent facts constituting the claim — … .

In addition, petitioner attempted to serve the notice of claim only 30 days after expiration of the statutory 90-day period for filing a notice of claim against a municipality. This short delay does not prejudice respondents’ ability to investigate and defend the claim, as such a short passage of time is unlikely to have affected witnesses’ memories of the relevant events. Matter of Thomas v City of New York, 2014 NY Slip Op 04423, 1st Dept 6-17-14

 

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