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Defendants Who Struck Plaintiff’s Vehicle When Plaintiff Pulled Out of a Parking Lot Entitled to Summary Judgment

The Second Department determined summary judgment had been properly granted to the defendants (“Dunn defendants”).  The defendant driver had the right of way and struck plaintiff’s vehicle when plaintiff pulled out of a parking lot.  The court explained the operative principles:

There can be more than one proximate cause of an accident and, thus, on their motion for summary judgment, the Dunn defendants had the burden of establishing freedom from comparative negligence … . While a driver is required to “see that which through proper use of [his or her] senses [he or she] should have seen” …, a driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way… .. In addition, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .

Here, the Dunn defendants established their prima facie entitlement to judgment as a matter of law by establishing that the injured plaintiff failed to yield the right-of-way to the Dunn vehicle, which was legally proceeding westbound on Montauk Highway with the right-of-way, and that Danielle Costella Dunn was free from comparative negligence since she had only had seconds to react … . Kenda v Dunn 2014 NY Slip Op 03494, 2nd Dept 5-14-14

 

Question of Fact Whether Snow Removal Efforts Created or Exacerbated Icy Condition

The Second Department determined summary judgment should not have been granted in favor of the property owner in a slip and fall case.  The plaintiff slipped on ice on metal vault doors in the sidewalk in front of defendants’ restaurant.  The defendants failed to demonstrate that their snow removal efforts did not create or exacerbate the condition:

A property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm … . Contrary to the defendants’ contention, they failed to demonstrate their prima facie entitlement to judgment as a matter of law, as they failed to establish that the snow removal efforts that were undertaken prior to the accident neither created nor exacerbated the allegedly hazardous icy condition which caused the plaintiff to fall.. . Gwinn v Christina’s Polish Rest Inc, 2014 NY Slip Op 03485, 2nd Dept 5-14-14

 

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Vehicle On a Flatbed Tow Truck Is Not In “Use or Operation” Within Meaning of Vehicle and Traffic Law 388

The Second Department reversed Supreme Court finding that the owner (Rosa) of a vehicle which is on a flatbed tow truck when the truck is involved in an accident cannot no be liable under Vehicle and Traffic Law 388:

Vehicle and Traffic Law § 388(1) imposes liability on all vehicle owners for accidents resulting from negligence in the permissive “use or operation” of their vehicles, including use “in combination with one another, by attachment or tow” (Vehicle and Traffic Law § 388[1]…). The statute’s primary objective is ” to provide recourse to an injured party against a person, financially able to respond, without whose conduct in permitting use of the vehicle the accident would not have happened'” … .

Here, Rosa’s vehicle was not in use at the time of the accident, either on its own or in combination with the flatbed tow truck… . Rather, it was merely cargo on the flatbed tow truck. Gibson v Sing Towinf Inc, 2014 Slip Op 03483, 2nd Dept 5-14-14

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Plaintiff Bicyclist Entitled to Summary Judgment—Defendant Driver Made a Left Turn into a Parking Lot When Plaintiff Was Riding in Oncoming Lane

The Second Department determined summary judgment was properly granted to plaintiff bicyclist who was struck by defendants’ vehicle.  Defendant driver (Robert) made a left turn into a parking lot when plaintiff was riding in the oncoming lane:

“There can be more than one proximate cause [of an accident] and thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” … . Consequently, “[t]o prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that Robert, who testified at his deposition that he did not see the plaintiff until seconds before the impact, was negligent in violating Vehicle and Traffic Law §§ 1141 and 1163(a) by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety … . The plaintiff also demonstrated that Robert’s negligence was the sole proximate cause of the accident and that he was not comparatively at fault in the happening of the accident through his deposition testimony that he saw Robert’s vehicle stopped and waiting to make the turn, slowed down in response, stood up on his pedals to make eye contact with Robert to ensure that Robert was aware of his presence, and continued riding when he believed that Robert had made eye contact with him. Further, the plaintiff testified that, upon seeing Robert commence making the left turn in front of him, he immediately attempted to apply his brakes and maneuver around Robert’s vehicle, but there was an insufficient amount of time to successfully do so … . Sirlin v Schreib, 2014 NY Slip Op 03504, 2nd Dept 5-14-14

 

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Plaintiff Did Not Raise an Issue of Fact Re: Vicious Propensities of Defendants’ Dog

The Second Department determined plaintiff failed to raise a question of fact about the vicious propensities of a dog which was alleged to have bitten plaintiff:

“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, [the fact that the dog was kept as a guard dog,] and a proclivity to act in a way that puts others at risk of harm” … .

The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff’s, that they “were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior” … . Indeed, the defendants testified that they had no knowledge that the dog involved in this alleged attack on the plaintiff had ever growled at, chased, bitten, or attacked anyone prior to the subject incident … .

The plaintiff failed to raise a triable issue of fact in opposition. Henry v Higgins, 2014 NY Slip Op 03489, 2nd Dept 5-14-14

 

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Waiver and Release Signed by Plaintiff When She Rented a Segway Vehicle Precluded Her Personal Injury Action Even Though the Accident Occurred During a Tour Conducted by Defendant’s Employees

The Second Department determined the waiver and release signed by plaintiff when she rented a Segway vehicle precluded  her personal injury action.  Plaintiff was taking a tour in the vehicle which was conducted by defendant’s employees.  The vehicle became stuck in mud causing plaintiff to fall:

“Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by producing the waiver and release signed by the plaintiff … . Further, contrary to the plaintiff’s contention, General Obligations Law § 5-326 does not invalidate the release because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission fee for the use of the public trail over which the tour was conducted … .  Deutsch v Woodridge Segway LLC, 2014 NY Slip Op 03475, 2nd Dept 5-14-14

 

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School District Owed No Duty of Care to Student Struck by Car Before School Bus Stopped to Pick Her Up/Bus Driver Had Missed Student’s Stop, Had Turned Around, and Was Driving Back Toward the Student When She Was Struck

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a school district did not owe any duty to a student who was struck by a car before the bus stopped to pick her up.  The bus driver mistakenly drove past the stop where the student was waiting.  The driver turned the bus around.  As the driver was heading back toward the student's stop, the student was struck by a car. The Court of Appeals essentially agreed with the dissenting appellate division justices, whose position was described as follows:

The dissenting Justices would have reversed Supreme Court's order and granted the District's motion in its entirety. …[T]hey observed the “well settled” rule that the District's duty flowed from physical custody and control; that at the time of the accident the District did not have physical custody of the child, who thus remained outside its orbit of authority; and that the District therefore “owed no duty to the child in this situation, and, absent duty, there can be no liability” … .

The dissenting Justices rejected plaintiff's contention, endorsed by the majority, that the District “assumed a duty to the child as a consequence of the potentially hazardous situation allegedly created by the school bus driver in turning the bus around after missing the bus stop” … . Williams v Weatherstone, 2014 NY Slip Op 03425, CtApp 5-13-14

 

Question of Fact Whether Elevator Company Had Constructive Notice of “Misleveling Condition”/Question of Fact About Applicability of Res Ipsa Loquitur Doctrine

The First Department determined questions of fact had been raised about whether an elevator company, which exclusively maintained and repaired the elevator, had constructive notice of the “misleveling condition.”  In addition there was a question of fact about the applicability of the res ipsa loquitur doctrine:

An elevator company that agrees to maintain an elevator may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found … .

Plaintiffs raised a triable issue of fact as to whether defendants had constructive notice of the misleveling condition or with reasonable care could have discovered and corrected the condition, by submitting the affidavit of their expert, who reviewed defendants’ repair tickets and concluded that they revealed conditions related to the elevator’s leveling function. * * *

Issues of fact exist as to whether the doctrine of res ipsa loquitur applies here. The expert testimony conflicts as to whether the misleveling of the elevator would not ordinarily occur in the absence of negligence. It is, however, undisputed that defendants were exclusively responsible for maintenance and repair of the elevator, and the record is devoid of any evidence that plaintiff contributed to its misleveling… . McLaughlin v Thyssen Dover El Co, 2014 NY Slip Op 03440, 1st Dept 5-13-14

 

Defect Not Trivial as a Matter of Law

The Fourth Department determined defendant failed to establish a defect in pavement was trivial as a matter of law:

Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law … . The photographs submitted in support of defendant’s motion depict a lengthy edge in the pavement that was more than two-thirds of an inch deep and spanned the width of the painted walking area adjacent to the designated handicapped parking space … . Defendant also submitted plaintiff’s deposition testimony, in which she testified that her right foot caught on “a quite high ledge” in the pavement at the rear of the parking space … . Although defendant characterizes the edge as “a small, rounded lip in the pavement,” the photographs depict crumbling asphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual …, where the trivial defect involved ” a small area’ ” of a ” cracked and crumbly’ ” curb that “had no measurable depth,’ ” plaintiff’s deposition testimony and the photographs in this case, particularly the photographs depicting the area closest to plaintiff’s vehicle, suggest a measurable edge in the pavement that could pose a tripping hazard. Lupa v City of Oswego, 2014 NY Slip Op 03055, 4th Dept 5-2-14

 

No Liability for Injury to Child Who Suddenly Darted Out Into Traffic

The Fourth Department determined all causes of action arising from a child’s darting out into traffic should be dismissed. There was no evidence the driver who struck the child (Hosley) was negligent.  And there was no evidence the adults in the car from which the child darted into traffic (Ricks and Still) were negligent.  The driver parked the car intending to escort the child to her school bus:

Specifically, the evidence establishes as a matter of law that, “without looking in the direction of oncoming traffic” …, the child darted from behind the front of Still’s parked vehicle, “directly into the path of” Hosley’s vehicle, leaving Hosley “unable to avoid contact with the [child]” …, and plaintiff failed to raise an issue of fact … . Contrary to plaintiff’s contention, the record does not establish that there is an issue of fact whether Hosley operated her vehicle in a negligent manner. Rather, the record establishes as a matter of law that Hosley acted as a reasonably prudent person when she slowed her rate of speed immediately upon seeing the parked vehicle ahead, and that she proceeded with caution while attempting to pass it safely on the left … .

With respect to the motion of Ricks and Still, we note that “[t]he operator of a private passenger vehicle owes to his passengers a duty of reasonable care [in] providing a safe place to alight” … . Ricks and Still met their initial burden on their motion by establishing that Ricks did not breach that duty to the child when, intending to escort the child, he parked the vehicle against the curb on a side street. Plaintiff’s “[m]ere conclusions, expressions of hope or unsubstantiated allegations” asserted in opposition to the motion failed to raise an issue of fact … . Green v Hosley, 2014 NY Slip Op 03066, 4th Dept 5-2-14

 

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