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Diving Into Shallow Water Raised Questions of Fact Re: Foreseeability and Defendants’ Negligence

The Third Department determined questions of fact had been raised about foreseeability and negligence in an action based upon plaintiff’s diving into shallow water incurring a spinal injury.  The incident occurred in April on an unusually hot day:

The dynamic of this case is that the accident occurred on an unseasonably warm spring day, well before the swimming season would normally commence. With the lake levels reduced, plaintiff’s professed expectations of water depth were tragically proven unfounded. Compounding the problem, as explained by plaintiff’s wife, was the fact that the water was not clear enough to see the bottom. Despite plaintiff’s initial protests about going in the water, the fact remains it was extremely hot, the children had been swimming and plaintiff was wearing swim trunks. [Defendant] acknowledged that “[i]t wouldn’t have surprised [him] for them to get in the water.” Under these circumstances, whether it was foreseeable that plaintiff would dive into the water presents a question of fact for the trier of fact to resolve … . Whether defendants breached their duty of care by failing to inform plaintiff of the reduced water level also remains a question of fact .. . Correspondingly, a triable issue of fact remains as to whether plaintiff was actually aware of the depth of the water and dove in reckless disregard of his own safety. As such, his conduct cannot be characterized as a superseding cause as a matter of law … . Toyryla v Denis, 2014 NY Slip Op 05483, 3rd Dept 7-24-14

 

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Criteria for Determining a Motion to Amend the Pleadings Explained

In reversing Supreme Court’s denial of a motion for leave to serve a second amended complaint, the Second Department explained the criteria for determining the motion:

“Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit” … .

“No evidentiary showing of merit is required under CPLR 3025(b)” … . “The court need only determine whether the proposed amendment is palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit” (id.). “[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” … . Favia v Harley-Davidson Motor Co Inc, 2014 NY Slip Op 05408, 2nd Dept 7=23=14

 

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Failure to Specifically Demonstrate When Area Where Fall Occurred Was Last Inspected or Cleaned Required Denial of Summary Judgment

The Second Department determined the defendant did not meet its burden of demonstrating a lack of constructive notice of the condition of the stairway where plaintiff fell (allegedly the presence of dirty paper and urine):

Although the defendant submitted an affidavit from the supervisor of the caretaker assigned to clean the subject building on the day immediately preceding the plaintiff’s nighttime accident, that affidavit was insufficient to establish when the stairway was last inspected and cleaned relative to the plaintiff’s fall. The affidavit was conclusory and only referred, in a general manner, to the janitorial schedule followed on normal weekdays. Moreover, another caretaker testified at his deposition, and the defendant concedes, that the normal weekday janitorial schedule was not in effect on the day preceding the plaintiff’s accident, which was the Thanksgiving holiday. Since the defendant did not provide evidence regarding any specific cleaning or inspection of the area in question on that day, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law… . Williams v New York City Hous Auth, 2014 NY Slip Op 05425, 2nd Dept 7-23-14

 

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Building Owner Entitled to Summary Judgment in Slip and Fall Case Based Upon Tracked In Water (Inclement Weather)–Tenant Ordinarily Does Not Have a Duty of Care Re: Common Areas

The Second Department determined the building owner was entitled to summary judgment in a slip and fall case based upon water tracked in during inclement weather.  The court noted that a tenant does not have a duty of care with respect to the condition of common areas of the building:

“In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . Moreover, a property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather …, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation … . A tenant ordinarily owes no duty of care with respect to a dangerous condition in a common area of a building … .

The owner and the tenant, on their respective motions, established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. In support of their motions, the owner and the tenant each presented evidence that it had not created the alleged defective condition. The owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, i.e., the alleged presence of water on the vestibule floor of the subject building. Paduano v 686 Forest Ave LLC, 2014 NY Slip Op 05415, 2nd Dept 7-23-14

 

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City Can Not Be Held Liable for Injuries Caused by Attacking Dogs About Which Complaints Had Been Made—No Special Relationship Between Plaintiff’s Decedent and City

The Second Department determined no special relationship existed between plaiintiff’s decedent and the city such that the city could be held liable for the alleged failure to address complaints about the dogs which attacked plaintiff’s decedent, who died from the injuries.  The court explained why none of the criteria for a special relationship applied:

” A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … .

As for the first way of forming a special relationship, contrary to the plaintiff’s contention, a private right of action may not be fairly implied from Agriculture and Markets Law (hereinafter AML) § 123 … . The Supreme Court properly determined that the recognition of a private right of action would be inconsistent with the legislative scheme underlying AML § 123 … . Accordingly, no special relationship was created between the City and the decedent through the breach of a statutory duty.

As for the second way of forming a special relationship, the City met its prima facie burden of demonstrating its entitlement to judgment as a matter of law by submitting evidence that it did not voluntarily assume a duty toward the decedent. To demonstrate that a municipality voluntarily assumed an affirmative duty and a plaintiff justifiably relied on the municipality’s undertaking, four elements must be shown: “(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Here, the City established and the plaintiff concedes that the decedent never made direct contact with the City, and the circumstances here did not give rise to one of the narrow exceptions to this requirement … . The absence of direct contact negates the existence of a special relationship pursuant to the City’s voluntary assumption of a duty to the decedent … .

As for the third way of forming a special relationship, which has been recognized in only rare circumstances, the City must affirmatively act to place the plaintiff in harm’s way … . Contrary to the plaintiff’s contention, the evidence established, prima facie, that the City did not take positive direction and control in the face of a known, blatant, and dangerous safety violation. Sutton v City of New York, 2014 NY Slip Op 05421, 2nd Dept 7-23-14

 

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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

 

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

 

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