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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

 

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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