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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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Continuous Treatment Doctrine (Tolling the Statute of Limitations) Explained In Depth

The First Department, over a dissent, determined that the jury’s conclusion the statute of limitations was tolled under the continuous treatment doctrine should not be disturbed.  Plaintiff underwent Lasik surgery and complained of blurry vision and other complications in several follow up visits which ended in 2004.  Plaintiff commenced the lawsuit after a subsequent visit in 2007.  The question was whether the 2007 visit was related to the 2004 visits such that the continuous treatment doctrine applied.  The court discussed the doctrine in depth.  The court noted that the doctrine did not apply to plaintiff-wife’s derivative claims:

Plaintiff … asserts that the 2007 visit satisfied CPLR 214-a, because it was for the “same” condition as the 2004 visits, which was blurry vision in his left eye. He further argues that whether he and defendant agreed that he would seek further treatment after the May 2004 visit is irrelevant, because defendant “guaranteed” that the Lasik procedure would correct the blurry condition, and stated that he was plaintiff’s “doctor for life” for that purpose.

Although the CPLR defines “continuous” treatment as treatment “for the same illness, injury or condition” out of which the malpractice arose (CPLR 214-a [emphasis added]), the controlling case law holds only that the subsequent medical visits must “relate” to the original condition … . Here, plaintiff initially engaged defendant to correct his blurry vision, and the 2007 visit was motivated by continued blurriness in plaintiff’s eye, thus making the two visits “related” … . Devadas v Niksarli, 2014 NY Slip Op 06032, 1st Dept 9-4-14

 

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Plaintiff Entitled to Summary Judgment Pursuant to Res Ipsa Loquitur Doctrine—Doctrine Explained In Depth

The First Department, over a dissent, determined summary judgement should have been granted to the plaintiff pursuant to the doctrine of res ipsa loquitur.  Plaintiff, a passenger on defendant’s train, was struck when a ceiling panel (used to access the ventilation system) swung open.  The decision includes an extensive discussion of the res ipsa loquitur doctrine:

While summary judgment is rarely granted in res ipsa loquitur cases, it is appropriate in “exceptional case[s],” such as this one, where “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … .

To demonstrate a claim under the doctrine, a plaintiff must establish three elements: (1) the accident is of a kind that ordinarily does not occur in the absence of defendant’s negligence; (2) the instrumentality causing the accident was within defendant’s exclusive control; and (3) the accident was not due to any voluntary action or contribution by plaintiff … .

Plaintiff met all three elements with her submission of witness testimony and the testimony of defendant’s foreman. The foreman testified that the train’s HVAC and ventilation system was accessible through the ceiling panel that hit plaintiff. He also testified that to his knowledge, no one but defendant’s personnel accessed the ceiling panels and that he had no explanation for how the accident occurred. The foreman described the panel as being fastened to the ceiling with four screws outside and two safety latches and a safety chain inside.

Defendant concedes the first and third elements but argues that it did not have exclusive control over the ceiling panels. However, defendant offers no evidence to support its argument. Rather, defendant simply offers its attorney’s affirmation, in which counsel opines that “the only logical conclusion,” considering the foreman’s testimony, was that the accident occurred because [*2]of tampering by unauthorized individuals. This statement, which amounts to no more than counsel’s speculation about what might have happened, is insufficient to defeat plaintiff’s motion … . Barney-Yeboah v Metro-North Commuter RR, 2014 NY Slip Op 06036, 1st Dept 9-4-14

 

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Ordinance Making Abutting Property Owners Responsible for Removal of Ice and Snow from a Sidewalk Did Not Impose Tort Liability on Abutting Property Owner

The Second Department determined that an abutting property owner (Atlantic) could not be held liable for an ice/snow slip and fall on a sidewalk in the absence of an ordinance specifically imposing tort liability on the property owner, even where, as here, an ordinance made the property owner responsible for removal of ice and snow:

“Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk” … . Although section 229-6 of the Code of the Village of Ossining (hereinafter the Village Code) requires a landowner to remove snow and ice from abutting public sidewalks, it does not specifically impose tort liability for a breach of that duty … . “In the absence of a statute or ordinance imposing liability, the owner of property abutting a public sidewalk will be held liable only where it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous” … . In their pleadings, the plaintiffs did not allege that the Atlantic defendants created the icy condition. Rather, the pleadings alleged that the Atlantic defendants were negligent in, inter alia, failing to remove snow and ice from the sidewalk. Since the Atlantic defendants established that section 229-6 of the Village Code did not impose tort liability upon them for a failure to remove snow and ice from the sidewalk, they demonstrated their prima facie entitlement to judgment as a matter of law … . Palka v Village of Ossining, 2014 NY Slip Op 05848, 2nd Dept 8-20-14

 

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Memorialized Telephone Notification About Pothole Does Not Satisfy Written Notice Requirement—Inadequate Repair Is Not Sufficient to Demonstrate Municipality Created the Dangerous Condition

The Second Department determined Supreme Court should have dismissed the complaint against the village because the village did not receive written notice of the pothole which allegedly caused plaintiff’s injury.  The court noted that phone calls to the village about the pothole, even if memorialized in writing, did not meet the written notice requirement.  The court also noted that an inadequate repair of the pothole is not enough to demonstrate the village created the defect:

The plaintiff contends that there is a triable issue of fact as to whether the Village received prior written notice of the defect, because the oral notice provided by residents of the street, including voicemail, could have been reduced to writing by an employee of the Village. However, Hempstead Village Code § 39-1 requires that “written notice of said defect causing the injuries or damages was actually given to the Village Clerk.” There are no provisions permitting other types of notice, such as a written acknowledgment of oral notice … . Therefore, a verbal or telephonic communication which was reduced to writing by the Village would not satisfy the prior written notice requirement … .

In Yarborough v City of New York (10 NY3d 726), the Court of Appeals noted that once the municipality establishes lack of written notice, “the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule —that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” A negligent repair of the defective condition is insufficient to establish that the municipality affirmatively created the defect … . To fall within the exception, the repair must immediately result in a dangerous condition …, which made the defective condition more dangerous than it was before any efforts were made to repair it … . Wilson v Incorporated Vil of Hempstead, 2014 NY Slip Op 05861, 2nd Dept 8-20-14

 

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