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Police Officer Struck by Plaintiffs’ Decedents When the Officer Was Making a U-Turn to Follow a Car Was Entitled to Summary Judgment Under the Statutory “Reckless Disregard” Standard

The Fourth Department determined summary judgment should have been granted in favor of a police officer (Bluman) who was struck by plaintiffs' decedents when the officer was attempting to make a u-turn to follow a vehicle.  The court determined the reckless disregard standard of Vehicle and Traffic Law 1104 applied and that the officer's “momentary judgment lapse” did not rise to the level of reckless disregard as a matter of law:

At the time of the accident, Bluman was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 1104 [a]) and was engaged in an emergency operation by virtue of the fact that he was attempting a U-turn in order to “pursu[e] an actual or suspected violator of the law” (§ 114-b). As the Court of Appeals recognized …, “the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.” We conclude that, by attempting to execute a U-turn, Bluman's conduct was exempted from the rules of the road by section 1104 (b) (4). As a result, his conduct is governed by the reckless disregard standard of care in section 1104 (e).

It is well settled that a ” momentary judgment lapse' does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” (Szczerbiak v Pilat, 90 NY2d 553, 557). Here, Bluman acted under the mistaken belief that the other southbound vehicles were sufficiently behind him and that it was, at that moment, safe to execute a U-turn. This “constituted a momentary lapse in judgment not rising to the level of reckless disregard for the safety of others' “… . Dodds v Town of Hamburg, 2014 NY Slip Op 03060, 4th Dept 5-2-14

 

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Statutory “Reckless Disregard” Standard in Vehicle and Traffic Law 1103 (b) Applied to the Driver of a Town Truck—The Driver Was Using a Plow to Remove Water and Debris from a Road—Because the Driver Was Acting On His Own and Had Not Been Assigned to Remove the Water and Debris, the Question Raised on Appeal Was Whether the Driver Was Doing “Work” within the Meaning of Section 1103 (b) such that the Statutory Standard, as Opposed to the Ordinary Negligence Standard, Applied

The Fourth Department, over a two-justice dissent, determined the statutory “reckless disregard” standard of Vehicle and Traffic Law 1103 (b), not the ordinary negligence standard, applied to the actions of the driver of a town truck..  The driver, Grzybek,  was using a plow to remove water and debris from a service road.  The water sprayed onto the windshield of the truck, obstructing the driver’s vision and causing the driver to cross into an oncoming lane, striking plaintiffs’ vehicle. Because the driver was not assigned the task of removing water and debris from the road, the dissenters argued the driver was not engaged in “work” within the meaning of Vehicle and Traffic Law 1103 (b) and, therefore, the ordinary negligence standard, not the “reckless disregard” standard of section 1103 (b), applied:

…[T]he statute exempts “all [municipal] vehicles actually engaged in work on a highway’ . . . from the rules of the road” … . The statute does not state that it exempts only those vehicles engaged in “assigned” work. Plowing water and debris from a road is work, and that work is within the scope of Grzybek’s duties. Plaintiffs do not suggest otherwise. Rather, their contention is that the statute applies only when the vehicles are “performing their assigned work” and that Grzybek was not assigned to plow water and debris from the service road on the day of the accident. In our view, interpreting the statute as the dissent and plaintiffs suggest improperly adds language to the statute by qualifying the word “work.” It is not the function of this Court to usurp the power of the legislature and rewrite a clear and unambiguous statute. Aside from statutory exceptions not relevant herein, all municipal vehicles actually engaged in work are exempt from the rules of the road. Inasmuch as Grzybek’s vehicle was actually engaged in work, albeit unassigned work, the reckless disregard standard of care set forth in Vehicle and Traffic Law § 1103 (b) applies as a matter of law. * * *

…[W]e conclude that plaintiffs, in opposition to defendants’ cross motion, submitted evidence from which a jury could find that Grzybek “had intentionally committed an act of an unreasonable character in disregard of a known or obvious risk “that was so great as to make it highly probable that harm would follow” and [did] so with conscious indifference to the outcome’ ” … . Gawron v Town of Cheektowaga, 2014 NY Slip Op 03051, 4th Dept 5-2-14

 

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Causes of Action Against County Personnel Based Upon Negligent Hiring, Training and Supervision Should Not Have Been Dismissed–Plaintiff’s Decedent Was Killed at the Hands of Her Mother and Half-Brother—Complaint Alleged County’s Negligence in Failing to Protect Plaintiff’s Decedent

In a lawsuit alleging county personnel, including deputy sheriffs, were negligent resulting in the death of plaintiff’s decedent at the hands of her mother and half-brother, the Fourth Department determined: (1) governmental immunity could not be determined at the pleading stage because whether the government’s actions were discretionary (and therefore immune) was a question of fact; (2) absent a local law to the contrary, a sheriff can not be held vicariously responsible for the actions of deputy sheriffs under the doctrine of respondeat superior; (3) the causes of action for negligent hiring, training and supervision of county personnel should not have been dismissed; (4) the notices of claim were sufficient to notify the county of the negligent hiring, training and supervision causes of action; and (5) the notice of claim was not defective for failing to name the sheriff in his official capacity.  Mosey v County of Erie, 2014 NY Slip Op 03041, 4th Dept 5-2-14

 

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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Plaintiff Injured Falling Off Operating Table—Record Insufficient to Determine Whether Action Sounded in Medical Malpractice (Rendering It Untimely) or Negligence (Rendering It Timely)

The Third Department determined there was insufficient information in the record to determine whether plaintiff’s action sounded in negligence or medical malpractice.  Plaintiff was injured when she fell off the operating table.  The case hinged on whether the 2 1/2 year medical malpractice of the 3 year negligence statute of limitations applied. Supreme Court determined the medical malpractice statute applied and dismissed the complaint. The Third Department sent the matter back for the service of an amended complaint:

The sole issue here is whether the complaint sounds in medical malpractice such that it is subject to a 2½-year statute of limitations, which would make it untimely, or whether it alleges personal injury claims based on ordinary negligence that are subject to a three-year statute of limitations (compare CPLR 214-a, with CPLR 214 [5]). “Conduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” … .

The record here does not contain enough factual information to make such a determination. The complaint contains some language that generally refers to malpractice, such as that the “action arose from a surgery,” that plaintiff was “owed a duty by [d]efendants to use the due care of medical specialists in performing” the surgery, and that plaintiff fell after she “was extubated by the [a]nesthesiologist” or “while extubated by” him. While some of the medical records also indicate that plaintiff’s fall from the operating table may have been substantially related to the rendition of medical treatment, one medical note indicates that plaintiff rolled off the table due to the failure to remove an obstruction that prevented a stretcher from being placed next to the operating table. Plaintiff’s causes of action would sound in medical malpractice if she fell off the table due to improper pressure or movement in the removal of the breathing tube, or the failure to properly evaluate her safety and restraint needs while she was under anesthesia … .

On the other hand, her causes of action would sound in ordinary negligence if she never received any safety assessment, if the hospital staff failed to remove an obstruction between the operating table and stretcher and allowed her to fall between them, or if she was simply dropped by the staff members when they were transferring her from the operating table to the stretcher … . Newell v Ellis Hosp, 2014 NY Slip Op 02992, 3rd Dept 5-1-14

 

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General Municipal Law 205-a and Strict Products Liability Causes of Action Brought by Firefighter Injured During a Fire Survive Defendants’ Summary Judgment Motions

The Third Department determined motions for summary judgment by the owners of a building and the manufacturer of a device used to locate firefighters in an emergency were properly denied.  Plaintiff (Dryer) was a firefighter severely injured when a ceiling collapsed on him while he was searching for a fire within the building.  It was alleged the fire was related to violations of the Uniform Fire Prevention and Building Code and the “PASS” device which was supposed to facilitate the locating of a firefighter malfunctioned.  Questions of fact were raised re: the General Municipal Law 205-a and strict products liability causes of action:

General Municipal Law § 205-a creates a statutory cause of action for firefighters who are injured in the line of duty “directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any [federal, state or local] . . . statutes, ordinances, rules, orders and requirements” (General Municipal Law § 205-a [1]…). “To fall within the protective scope of the statute and defeat a motion to dismiss, a plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter” … . * * *

…[W]e [are not] persuaded that Supreme Court erred in denying the owners’ motions for summary judgment dismissing the General Municipal Law § 205-a cause of action. In this regard, the owners bore the initial burden of establishing either that they did not violate any relevant governmental provision or, if they did, that such violation did not directly or indirectly cause Dryer’s injuries … . The “directly or indirectly” language employed in General Municipal Law § 205-a “has been accorded broad application by the courts, ‘in light of the clear legislative intent to offer firefighters greater protections'” … . * * *

“In order to recover in a strict products liability action, the plaintiff must prove that the defendant manufactured for sale, or sold, distributed, leased, or otherwise marketed a product, that the product was defective, that the plaintiff was injured and that the defect was a substantial factor in causing the [plaintiff’s] injury” … . The requisite defect, in turn, may stem from “a manufacturing flaw, improper design or failure to warn” … . Dryer v Musacchio, 2014 NY Slip Op 02986, 3rd Dept 5-1-14

 

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Untimely ​Strict Products Liability Cause of Action Related Back to Timely Negligent Design Cause of Action—Motion to Amend Pleadings to Add Strict Products Liability Cause of Action Against Lessor of Heavy Equipment Should Have Been Granted

The Third Department determined plaintiff should have been allowed to amend the complaint to assert a strict products liability cause of action against the lessor of heavy equipment.  Plaintiff claimed to have slipped and fallen from a slippery surface on the heavy equipment.  The court noted the untimely strict products liability claim was nearly identical to the negligent design cause of action which had been timely alleged:

A commercial lessor may be held liable, even in the absence of fault, for injuries caused by a defective product that the lessor is in the business of leasing … . Leave to amend is to be freely granted “at any time,” so long as there is no prejudice or surprise to the other party (CPLR 3025 [b]…), “and the amendment is not plainly lacking in merit” … .

Although plaintiffs did not seek to amend the complaint until four years after the commencement of the action, [defendant] has not identified any actual prejudice or valid claim of surprise. The proposed amendment is not based on new facts and there is “almost no difference” between negligence and strict products liability claims based on defective design … . Given the functionally synonymous nature of the claims, we conclude that the complaint provided adequate notice of the necessary elements and the proposed amendment relates back to the timely interposition of the negligence claim (see CPLR 203 [f]…). Furthermore, the strict products liability claim cannot be said to be plainly lacking in merit as plaintiffs submitted an affidavit from a certified safety professional who opined that the slippery surface of the excavator was unreasonably dangerous, described why and explained how it could have been made safer … . Stokes v Komatsu Am Corp, 2014 NY Slip Op 02997, 3rd Dept 5-1-14

 

Plaintiff Deemed to Be In the Foreseeable Zone of Danger Re: a Fireworks Display

The Third Department determined questions of fact precluded summary judgment in a case stemming from a malfunction of a fireworks display.  The malfunction caused a projectile to fly horizontally toward plaintiff who injured her arm in attempting to protect her daughter from the projectile. Supreme Court had dismissed the action as unforeseeable because the projectile travelled beyond the usual zone of danger.

To establish a prima facie case of negligence, the plaintiff is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained … . “The existence and scope of [the] alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court” — giving due consideration to “whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm and whether the accident was within the reasonably foreseeable risks” … . Once it is determined that a particular duty exists, whether — and the extent to which — that duty was breached and whether any such breach was a proximate cause of the plaintiff’s injuries generally are factual issues for the trier of fact to resolve … .

Here, defendants possessed, furnished, set up and ignited “a large supply of dangerous fireworks” … and, as such, were bound to exercise “a high degree of care” in order to prevent injury to others … . As to the foreseeability of a malfunction, one of defendants’ representatives testified at his examination before trial that, although he had not experienced a “blow by” prior to the Ticonderoga show, such an event was “an occurrence in the industry,” that “the chance for a malfunction [was] obviously there” and that malfunctions can be dangerous. As to whether plaintiff was in the zone of foreseeable harm, plaintiff estimated that she was sitting approximately 700 feet from where the shells were being launched (well outside the purported safety radius) and, as noted previously, acknowledged that the debris from the first malfunctioning shell did not reach her location. Plaintiff also testified, however, that the second shell exploded “[v]ery close” to where she was sitting, causing sparks to land around her group, and one of defendants’ representatives conceded that “hot flaming debris” from this second shell was propelled into the crowd of spectators. Further, when plaintiff returned to the ball field the following day, she observed scorch marks on the grass — presumably caused by flaming debris from the detonated shell — approximately 20 feet away from where she had been sitting. Moreover, the police report prepared in this matter makes reference to a witness who claimed that the second shell exploded “15-20 feet away from the civilians sitting by Burgoyne [R]oad.” Under these circumstances, we are satisfied that plaintiff was within the zone of foreseeable harm … . Accordingly, Supreme Court erred in finding that defendants owed no duty to plaintiff.  Evarts v Pyro Eng’g Inc, 2014 NY Slip Op 02996, 3rd Dept 5-1-14

 

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Court May Not Deny a Dispositive Motion on a Ground Not Raised by the Parties/Assumption of Risk Precluded Suit Based Upon Falling Off an Exercise Ball

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that Supreme Court improperly denied defendant’s [Eastern Athletic’s] motion for summary judgment.  The plaintiff had fallen off an exercise ball during an exercise class.  The Second Department found plaintiff’s lawsuit was precluded by the doctrine of assumption of the risk. In denying defendant’s motion for summary judgment, Supreme Court ruled the deposition transcripts submitted by the defendant were inadmissible because they were not certified, a ground that had not been raised by the parties.  The Second Department held that a dispositive motion can not be denied on a ground that was not raised by the parties:

Here, the Supreme Court denied the subject motion for summary judgment on a ground that the parties did not litigate. The parties did not have an opportunity to address the issue relating to the certification of the plaintiff’s deposition transcript, relied upon by the Supreme Court in denying that dispositive motion. The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. It is significant that, in Misicki v Caradonna (12 NY3d 511, 519), the Court of Appeals cautioned the judiciary that “[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (id. at 519).

The Supreme Court erred in denying Eastern Athletic’s motion for summary judgment by deciding that the plaintiff’s deposition transcript was uncertified and, therefore, inadmissible, where that ground of admissibility was not raised by the plaintiff herself. Notably, the plaintiff’s deposition transcript recites that the plaintiff was duly sworn. Moreover, in civil cases, “inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” … .

Had the plaintiff argued in opposition to Eastern Athletic’s motion that her deposition transcript was inadmissible because it was uncertified, Eastern Athletic could have submitted a certification in its reply papers and, if the plaintiff were not prejudiced, the Supreme Court may have considered it … . Eastern Athletic’s failure to submit to the Supreme Court a certified copy of the plaintiff’s deposition was an irregularity and, as no substantial right of a party was prejudiced, the court should have ignored the defect (see CPLR 2001). Rosenblatt v St George Health & Racqetball Assoc LLC, 2014 NY Slip Op 02917, 2nd Dept 4-30-14

 

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