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Plaintiff’s Allegation of Inadequate Lighting Was a Sufficient Indication She Was Aware of the Cause of Her Fall

The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case.  The court found that plaintiff had presented evidence of the cause of the fall (inadequate lighting) and the defendants did not demonstrate that they neither created the dangerous condition nor had constructive notice of it:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation

Here, the respondents failed to establish, prima facie, that the injured plaintiff did not know what had caused her to fall. The injured plaintiff testified during her deposition that the lighting in the hallway was so poor that she could hardly see her surroundings and that she kept her hand on the wall to guide her down the hallway. This testimony, which the respondents submitted with their motion, itself demonstrated the existence of a triable issue of fact as to whether the alleged lack of adequate lighting was a proximate cause of the accident … . Additionally, the respondents failed to establish that they neither created the allegedly dangerous condition nor had actual or constructive notice of it … . Since the respondents failed to satisfy their initial burden of establishing their prima facie entitlement to judgment as a matter of law, their motion should have been denied without regard to the papers submitted in opposition … .  Palahnuk v Tiro Rest Corp, 2014 NY Slip Op 02418, 2nd Dept 4-9-14

 

Driver of Middle Car in Chain Collision May Not Be Negligent

The Second Department explained the status of the “middle car” in a “chain” rear-end collision. The driver of a vehicle which is struck from behind and pushed into the rear of plaintiff’s vehicle may not be negligent:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129[a]…). Hence, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle … .Here, in support of her motion, the plaintiff submitted evidence including the deposition testimony of the defendant driver, who testified that an unidentified vehicle struck his vehicle in the rear, causing his vehicle to move forward and strike the rear of the plaintiff’s vehicle. This testimony revealed the existence of a triable issue of fact as to whether the defendant driver was at fault in the happening of the accident … . Kuris v El Sol Contr & Contr Corp, 2014 NY Slip Op 02268, 2nd Dept 4-2-14

 

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A Third-Party’s Removal of a Safety Device Did Not Require Summary Judgment In Favor of the Manufacturer, Even though the Safety Device Would Have Prevented the Injury/There Was Evidence the Safety Device Itself Was Defective, Leading to Its Removal by the Third Party/Therefore, the “Substantial Modification” Defense Did Not Insulate the Manufacturer from Liability as a Matter of Law

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the defendant manufacturer of a post-hole digger did not demonstrate entitlement to summary judgment dismissing the product liability suit because a plastic safety shield (which would have prevented the injury) had been removed by a third party after the sale (the “substantial modification” defense).  There was evidence that the plastic shield was defective in that it wore out prematurely:

If the defendant establishes prima facie entitlement to summary judgment based on substantial modification, the burden shifts to the plaintiff to come forward with evidentiary proof in admissible form demonstrating “the existence of material issues of fact which require a trial of the action” …. . The plaintiff may overcome a substantial modification defense by demonstrating that the post-sale modification did not render a “safe product defective” because the product incorporated a defectively designed safety feature at the time of sale … . In other words, the plaintiff must raise a triable issue of fact whether the safety feature “was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” … . * * *

…[I]f a plaintiff establishes the existence of material issues of fact concerning the defective design of a safety feature, the defendant will not automatically prevail on summary judgment simply because that safety feature was modified post sale. The substantial modification defense is intended to insulate manufacturers and others in the distribution chain from liability for injuries that would never have arisen but for the post-sale modification of a safety feature on an otherwise safe product. [It] does not, however, mandate summary disposal of cases where the plaintiff raises a colorable claim that the product was dangerous because of a defectively designed safety feature and notwithstanding the modification by the third party. We agree with the Appellate Division that, on this record, plaintiff established the existence of material issues of fact sufficient to overcome defendants’ substantial modification defense. Hoover v New Holland N Am Inc, 2014 NY Slip Op 02215, CtApp 4-1-14

 

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New York City Street-Sweeping Vehicles Are Now Exempt from the Rules of the Road Pursuant to Vehicle and Traffic Law 1103 (b) (Subject to the “Reckless Disregard” as Opposed to the “Ordinary Negligence” Standard) But Were Not So Exempt in 2010 When this Accident Occurred

The First Department, over a dissent, determined street-sweeping vehicles, at the time of the accident in 2010,  were not “hazard vehicles” exempted from the rules of the road under Vehicle and Traffic Law 1103 (b) (apparently, under the Rules of City of New York Department of Transportation, street-sweeping vehicles are now so exempt:)

…Vehicle and Traffic Law § 1103(b), which exempts “hazard vehicles” from the rules of the road and limits the liability of their owners and operators to reckless disregard for the safety of others …, does not apply to the New York City street-sweeping vehicle involved in the collision with plaintiff’s vehicle that gave rise to this action. Therefore, defendants are subject to the ordinary negligence standard of liability, not the reckless disregard standard on which their motion was based. At the time of the accident, in 2010, Vehicle and Traffic Law § 1103(b) was superseded by Rules of City of New York Department of Transportation (34 RCNY) § 4-02, which excepted street sweepers, among others, from compliance with traffic rules to the limited extent of making such turns and proceeding in such directions as were necessary to perform their operations (34 RCNY 4-02[d][1][iii][A]). While subparagraph (iv) contained a broader exception, expressly invoking Vehicle and Traffic Law § 1103, we find that subparagraph (iv) did not include street sweepers because that would have rendered subparagraph (iii) redundant and meaningless. Indeed, when 34 RCNY 4-02 was amended, in 2013, the City Council explained in its “Statement of Basis and Purpose” that the effect of the adopted rule would be “that operators of DOT and New York City Department of Sanitation snow plows, sand/salt spreaders and sweepers will now be subject to the general exemption set forth in subparagraph (iv) of that same subsection” (emphasis added) — a strong indication that they were not so subject before then. Deleon v New York City Sanitation Dept, 2014 NY Slip Op 02221, 1st Dept 4-1-14

 

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Summary Judgment Properly Granted in Favor of Defendant Who Had the Right of Way When Plaintiff Pulled Into Defendant’s Path from a Stop, Even Though there Was Evidence Defendant Was Travelling Slightly Over the Speed Limit/No Evidence Accident Would Have Been Avoided Had the Defendant Been Traveling at the Speed Limit

The Fourth Department, over a dissent, determined that summary judgment was properly granted to defendant truck driver who struck plaintiff’s vehicle as it entered the roadway from a stop.  The truck driver had the right of way (there was no stop sign for the truck driver) and there was evidence the truck was travelling in excess of five miles an hour over the speed limit. The court determined there was no evidence the accident could have been avoided even if the truck had been traveling at the speed limit:

“It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield” (…see Vehicle and Traffic Law § 1142 [a]). Nevertheless, “a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” … .

Here, we conclude … that defendants met their initial burden of establishing that defendant was operating his vehicle “ ‘in a lawful and prudent manner and that there was nothing [he] could have done to avoid the collision’ ” … . Defendant testified that he saw plaintiff’s vehicle at the stop sign, braked as soon as he entered the intersection, and turned to the left “microseconds” after he braked. Despite defendant’s efforts to avoid the accident, his truck struck the rear of plaintiff’s vehicle on the passenger’s side. In opposition to the motion, plaintiff failed to raise an issue of fact … . Contrary to plaintiff’s contention, “the fact that [defendant] may have been driving at a speed in excess of five miles per hour over the posted speed limit . . . is inconsequential inasmuch as there is no indication that [defendant] could have avoided the accident even if [he] had been traveling at or below the posted speed limit” … . Heltz v Barratt…, 184, 4th Dept 3-28-14

Similar (but not identical) facts, same result, over a dissent, in Johnson v Time Warner…, 175, 4th Dept 3-28-14

 

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Corporate Officer Not Liable in Lead Paint Exposure Case Under “Commission of a Tort” Doctrine for Nonfeasance/No Evidence of Malfeasance or Misfeasance

The Fourt Department determined summary judgment should have been granted to a corporate officer in a lead paint exposure case. The court explained when the “commission of a tort” doctrine applies to corporate officers:

“The ‘commission of a tort’ doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, i.e., an affirmative tortious act; personal liability cannot be imposed on a corporate officer for nonfeasance, i.e., a failure to act” … . Such misfeasance may include exacerbating a hazardous lead paint condition by negligently attempting to correct it … . Here, defendant met his initial burden by presenting “evidence that, if uncontroverted, would have established that [he] did not personally participate in malfeasance or misfeasance constituting an affirmative tortious act” … . Plaintiff failed to raise an issue of fact in response, inasmuch as he submitted no evidence that defendant affirmatively created the dangerous lead condition at the property or did anything to make it worse; at most, defendant merely failed to remedy the condition. We thus conclude that he cannot be held individually liable to plaintiff in this action. Lloyd v Moore…, 200, 4th Dept 3-28-14

 

Resident Hosts of a Party Had No Duty to Supervise 18-Year-Old Plaintiff Who Became Voluntarily Intoxicated

In a full-fledged opinion by Justice Scudder, over a partial dissent, the Fourth Department addressed many issues (not all mentioned here) stemming from plaintiff’s fall from a bathroom window at a psuedo-fraternity house where the “resident defendants” rented rooms and were responsible for cleaning the bathrooms.  The Fourth Department determined the resident defendants had a duty to maintain the property in a safe condition and to give warning of unsafe conditions that are not open and obvious. There was a question of fact whether the window, which was only 13 inches above the floor and had no screen or fall-prevention device, was a dangerous condition. There was a question of fact whether the hazard was open and obvious. There was a question of fact whether the resident defendants had actual or constructive notice of the hazard.  The court, however, agreed with the defendants that the cause of action based upon an alleged duty to supervise the 18-year-old plaintiff should have been dismissed:

Hosts of parties where alcohol is consumed in a home that they either own or occupy risk exposure to liability under two separate and distinct theories of negligence. One theory is based on their duties as owners or occupiers of the premises “to control the conduct of third persons for the protection of others on the premises” …, and the other theory is based on the duty of adults to “provide[] adequate supervision for minor guests who bec[ome] intoxicated at their home” … . * * *

The issue in this case, insofar as it relates to the negligent supervision claim, is whether the resident defendants had a duty to the adult plaintiff to supervise him and to protect him from injuring himself as a result of his voluntary intoxication. Any duty of the resident defendants to protect the intoxicated plaintiff from himself would come from the fact that they hosted the party, i.e., they provided the alcohol. Otherwise, plaintiff could sue anyone attending the party for failing to supervise him. …The Court of Appeals ….noted that the courts of New York had rejected “any argument that a duty exists to protect a consumer of alcohol from the results of his or her own voluntary conduct” … . We thus conclude that, because plaintiff was not a minor entrusted to the care of the resident defendants, the resident defendants did not have a duty to protect plaintiff from the results of his own voluntary intoxication.  Parslow … v Leake…, 1341, 4th Dept 3-28-14

 

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Cannot Sue Vehicle Owner as Vicariously Liable Under Vehicle and Traffic Law 388 Where Driver is Immunized from Suit Under Workers’ Compensation Law 29 (6)

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that “a defendant may [not] pursue a third-party contribution claim under New York Vehicle and Traffic Law [section] 388 against the owner of a vehicle, where the vehicle driver's negligence was a substantial factor in causing the plaintiff's injuries, but the driver is protected from suit by the exclusive remedy provision of New York Workers' Compensation Law [section] 29 (6)…”.  Here the driver, who was determined to be negligent (90%), was using her husband's car to drive a co-worker to a business meeting. The co-worker was injured and his exclusive remedy against the driver was under the Workers' Compensation Law.  The co-worker sued the driver of the other car, who was also determined to be negligent (10%).  The owner of that car (the driver's husband) then sued the owner of the car in which the co-worker was riding (the employee-driver's husband) under Vehicle and Traffic Law section 388 for contribution and indemnification:

In sum, we hold that a defendant may not pursue a third-party contribution claim under Vehicle and Traffic Law § 388 against a vehicle owner where the driver's negligence was a cause of the plaintiff's injuries, but the driver is insulated from a lawsuit under Workers' Compensation Law § 29 (6).  Isabella…Hallock… v Koubek, 45, CtApp 3-27-14

 

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Question of Fact Whether Out of Possession Landlord, Based on the Terms of the Lease, Had a Duty to Keep the Premises Safe (Labor Law 200)

The Second Department determined the provisions of a lease raised a question of fact about whether an out-of-possession landlord had a duty to keep the premises safe:

“Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” … .  * * * …[T]o the extent that the plaintiff’s claims were based on a dangerous condition on the premises, specifically the structural design, construction, and condition of a portion of the floor, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. “An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct” … . Here, the lease submitted by the defendants in support of their motion provided, among other things, that the defendants were required to “repair the damaged structural parts of the Premises,” that they were “not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord,” and that they retained the “right to enter into and upon said premises, or any part thereof . . . for the purpose of . . . making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” Based on these provisions, under the circumstances of this case, the defendants failed to establish as a matter of law that they did not have a duty imposed by contract to remedy the specific dangerous or defective condition alleged here. Thus, to prevail on their motion, the defendants were required to establish that they neither created the alleged dangerous or defective condition nor had actual or constructive notice thereof … . Here, the defendants failed to establish, prima facie, that they did not create the dangerous or defective condition alleged by the plaintiff to have contributed to his fall.  Quituizaca v Tucchiarone, 2014 NY Slip Op 02024, 2nd Dept 3-26-14

 

Basketball Player Assumed Risk of Running Into Glass Doors Behind Baseline

The Second Department determined a basketball player assumed the risk of the injuries suffered when his arm went through a glass door located behind the baseline.  The glass door constituted an open and obvious condition:

The doctrine of primary assumption of risk provides that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it … . If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.

Here, based in part on the proximity of the court to the entrance doors, the defendants established their entitlement to judgment as a matter of law by demonstrating that the injured plaintiff had assumed the obvious and inherent risk of coming into contact with the pane of glass in the entrance door by electing to play basketball on that court… .  Perez v New York City Dept of Educ, 2014 NY Slip Op 02022, 2nd Dept 3-26-14

 

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