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Allegation that Town Planted a Tree Near a Sidewalk and Did Not Maintain the Roots, Thereby Creating a Dangerous Condition, Is an Allegation of “Nonfeasance,” not an “Affirmative Act of Negligence”

The Second Department determined an allegation that a municipality planted a tree near a sidewalk and failed to maintain the tree roots did not support a negligence action based upon the creation of a dangerous condition:

…[T]he plaintiff alleged in his notice of claim, complaint, and bill of particulars that the Town affirmatively created the subject dangerous condition through various specified acts of negligence. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The Supreme Court, in denying the Town’s motion, concluded that it failed to meet its prima facie burden since it did not demonstrate that it did not affirmatively create the condition alleged. However, the Supreme Court erred in so concluding. The evidence submitted in support of the motion established that the planting of a tree or trees adjacent to the sidewalk where the accident occurred, and the alleged failure to maintain the roots of the tree or trees, would at most constitute nonfeasance, not affirmative negligence … . In opposition, neither the plaintiff nor the defendants …raised a triable issue of fact as to whether the Town created the condition alleged through an affirmative act of negligence. Lipari v Town of Oyster Bay, 2014 NY Slip Op 02755, 2nd Dept 4-23-14

 

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Abutting Landowners’ Responsibilties for Sidewalk Defects and Defects Relating to Covers and Gratings Explained

The Second Department explained the New York City law applicable to the responsibilty of abutting landowners with respect to sidewalks, and with respect to covers or gratings within or near the sidewalks:

…[L]iability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner … . However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk … . Section 7-210 of the Administrative Code of the City of New York, which was in effect at the time of the accident, shifts liability for injuries resulting from defective sidewalks from the City to abutting property owners … . Legislative enactments in derogation of the common law which create liability where none previously existed must be strictly construed … . Hence, while section 7-210 expressly shifts tort liability to the abutting property owner for injuries proximately caused by the owner’s failure to maintain the sidewalk in a reasonably safe condition, it does not supersede pre-existing regulations such as 34 RCNY 2-07(b), which provides that “owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware” (34 RCNY 2-07[b][1]…).  Roman v Bob’s Discount Furniture of NY LLC, 2014 NY Slip Op 02762, 2nd Dept 4-23-14

 

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Assault by NYC Firefigthers in a Restaurant Raised Questions of Fact Whether the City Defendants Were Liable for the Injuries to the Plaintiffs Based Upon Negligent Hiring, Training, Supervision and/or Retention/Fact that Suit Could Not Be Based Upon Respondeat Superior (Actions Outside the Scope of Employment) Did Not Preclude Suit Based Upon City’s Own Alleged Negligence (!)

The Second Department determined plaintiffs, who were injured when assaulted by NYC firefighters in a restaurant, had made allegations against the city and the fire department which raised questions of fact about negligent hiring, supervision, training and retention. The firefighters, including supervisors, had just come from a New York City Fire Department annual dinner held at another restaurant.  Apparently two firefighters (Reilly and Warnock) attacked the plaintiffs after a drink had been accidentally spilled on a firefighter. The court explained that the doctrine of respondeat superior would not apply because the firefighters were not acting within the scope of their employment at the time of the assault.  But the court determined the causes of action against the City defendants for negligent hiring, supervision, training and retention could go forward!

“The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “An employee’s actions fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business'” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Where, however, an employee’s actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment … . In instances where vicarious liability for an employee’s torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained … .

Here, the Supreme Court properly granted that branch of the City defendants’ motion which was for summary judgment dismissing the causes of action alleging vicarious liability. The City defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of Reilly and Warnock was not within the scope of their employment … . In opposition, the plaintiffs failed to raise a triable issue of fact … . However, as to the causes of action alleging negligent hiring, supervision, training, and retention, the City defendants did not establish their entitlement to judgment as a matter of law. They failed to submit any evidence demonstrating that they did not know or have reason to know of Reilly’s or Warnock’s alleged propensity for assaultive conduct … . Furthermore, the City defendants failed to submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs’ injuries … . Selmani City of New York, 2014 NY Slip Op 02764, 2nd Dept 4-23-14

 

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Property Owners, Absent a Regulation, Do Not Have a Duty to Make Sure Vegetation Does Not Obstruct Drivers’ View/Here the Cited Code Violations Were Not Intended to Impose that Duty

The Second Department determined that the town code provisions cited by plaintiffs did not impose a duty upon property owners to prevent vegetation from obstructing the view of drivers on a public road:

A property owner has no common-law duty to prevent vegetation growing on its property from creating a visual obstruction to users of a public roadway … . Although such a duty may be imposed by a specific regulatory provision …, the ordinances … defendants allegedly violated, Code of the Town of Clarkstown §§ 216-4 and 250-6, were not intended to protect motorists from the hazards of vegetation which obstruct views at intersections of streets and driveways … . Accordingly, alleged noncompliance with the subject ordinances may not give rise to tort liability… . Preux v Dennis, 2014 NY Slip Op 02763, 2nd Dept 4-23-14

 

Proof that a Floor is Inherently Slippery, Standing Alone, Will Not Support a Negligence Cause of Action

The First Department determined summary judgment dismissing the slip and fall complaint was properly granted.  Plaintiff, who suffered from dementia, did not remember the fall and proof the floor was inherently slippery, without more, was insufficient to support the action:

The duty of an owner of property to maintain his or her premises so that they are reasonably safe …extends to any hazardous condition about which the owner has actual or constructive notice. Except where the landowner created the defective condition, thereby affording actual notice …, it is incumbent upon the injured party to establish that the condition was either known to the owner or had existed for a sufficient period of time to have allowed the owner to discover and correct it

Here, plaintiff is alleged to have fallen as a result of a slippery floor. Plaintiff was unable to supply any information about the circumstances of the accident. Plaintiff failed to explain how she took two or three steps from a chair in the procedure room and slipped and fell down the basement stairs that were located in the back of the adjacent waiting room. As pointed out by defendant, “Plaintiff would have had to slipped [sic] all the way across the length of the office (waiting room) and made a 180 degree turn before reaching the top of the stairs.” Moreover, [plaintiff’s daughter] conceded that she did not know what caused her mother to fall and had not noticed that the floor was slippery. Finally, there is no evidence of any prior injury or complaint about the floor to support the conclusion that [defendant] should have known about the allegedly hazardous condition … . Proof that a floor is “inherently slippery,” standing alone, is insufficient to support a cause of action for negligence…, and the complaint was properly dismissed. Caicedo v Sanchez, 2014 NY Slip Op 02663, 1st Dept 4-17-14

 

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Res Ipsa Loquitur Doctrine Raised Question of Fact About Whether Anesthesiologist, Who Was Alone With the Unconscious Decedent at the Time of Death, Was Negligent

The Third Department noted that the doctrine of res ipsa loquitur raised a question of fact about whether an anesthesiologist (Waid) was negligent:

…[P]laintiff submitted a detailed expert affidavit … . The expert opined that Waid, through overinflation or improper insertion of the endotracheal tube, caused the hemorrhage that immediately led to decedent’s death. Although the exact source of bleeding was never identified, the expert explained possible ways that Waid may have caused the hemorrhage and stated that such bleeding does not ordinarily occur in the absence of negligence, Waid had exclusive control over decedent’s body and the medical instrumentalities at the time, and decedent was unconscious so he could not have contributed to the situation. Therefore, questions of fact exist and plaintiff may rely on the doctrine of res ipsa loquitur to attempt to establish Waid’s negligence… .  Cole v Champlain Val Physicians’ Hosp Med Ctr, 2014 NY Slip Op 02654, 3rd Dept 4-17-14

 

1/2 Inch Variation in Stair-Step Height (In Violation of Fire Safety Code) Established Negligence

The First Department determined plaintiff had established a case of negligence based upon a 1/2 inch height differential among stair steps where plaintiff fell:

Plaintiff’s expert supported her opinion that the stairway was defective “by nonconclusory reference to specific, currently applicable safety standards or practices” … . Section 5-2.2.2.4 of the National Fire Protection Association Life Safety Code [1994] requires that there can be no variation exceeding three sixteenths of an inch “in the depth of adjacent treads or in the height of adjacent risers and the tolerance between the largest and smallest tread cannot exceed ⅜.” Plaintiff’s expert identified the Life Safety Code Handbook as a published authoritative and nationally recognized accepted industry standard for safe staircase construction and maintenance in the field of architecture. When asked if plaintiff’s expert was correct in that regard, defendant’s expert replied “yes.” …  The trial court’s finding that the 1994 Life Safety Code is applicable because the stairs were renovated in 1996, when defendant constructed a new tile floor directly on top of an existing floor on the second floor landing, which created the height differential in the location where plaintiff lost her balance, is supported by a fair interpretation of the evidence. … Thus, plaintiff’s expert testimony that the one half inch differential caused plaintiff’s fall established a case of negligence against defendant. Rondin v Victoria’s Secret Stores LLC, 2014 NY Slip Op 02664, 4-17-15

 

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Obstruction of View of Stop Sign by Vegetation Not Actionable Against the Town Without Allegation Town Had Prior Written Notice of the Obstruction

The Second Department determined Supreme Court should have dismissed the cause of action against the Town of Oyster Bay which alleged vegetation had been allowed to obstruct a stop sign (leading to a collision).  The prior written notice requirement applied and the plaintiffs did not allege the Town had prior written notice of the obstruction:

The Town correctly argues that any claim that vegetation obstructed a driver’s view of the intersection and of traffic on the intersecting roadways is subject to its prior written notice statute … . Since the plaintiffs did not allege that the Town had received prior written notice of any obstructed sight lines in and around the subject intersection, the Supreme Court should have granted that branch of the Town’s motion which was to dismiss that claim … . Dutka v Odierno, 2014 NY Slip Op 02558, 2nd Dept 4-16-14

 

Defect Properly Found Trivial As a Matter of Law

The Second Department determined Supreme Court properly determined a defect in a metal sidewalk door was trivial as a matter of law.  The court explained the applicable principles:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury” … . However, a property owner (and tenants) may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . There is no ” minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable … . Nunez v Morwood Dry Cleaners, 2014 NY Slip Op 02564, 2nd Dept 4-16-14

 

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Expert Opinion About Link Between Trauma and a Stroke Erroneously Precluded/Frye Hearing Erroneously Ordered/The Opinion Evidence Was Not Controversial and Was Sufficiently Supported by the Relevant Literature to Obviate the Need for a Frye Hearing

The First Department, in a full-fledged opinion by Justice Saxe, with a concurring and a dissenting opinion, found that the trial court erred in precluding plaintiff’s experts from testifying about a causal link between an automobile accident and a subsequent embolic stroke.  The First Department further concluded that the opinion testimony about the causal link was supported by enough relevant literature to obviate the need for the Frye hearing which was (erroneously) ordered by the trial court.  The First Department went on to criticize the defense’s submission of motions in limine on the eve of trial, which, when erroneously granted, led to the plaintiff’s inability to make a prima facie case.  With respect to the criteria for a Frye hearing, the court wrote:

We reject the trial court’s determination that a Frye hearing was necessary. In the first place, defendants’ moving papers failed to justify the need for a Frye hearing at all. The affidavit by defendants’ expert in support of the motion merely asserted that the expert had “conducted a search of the relevant medical literature” and had found no support for plaintiff’s theory that the trauma from a motor vehicle collision caused the embolic stroke. Notably, defendants’ expert did not even point to literature or studies disproving such a link. Therefore, when, in response, plaintiff’s expert provided proof that literature supporting the theory existed and had been published in reputable professional journals and cited or discussed in others, the basis for defendants’ claim was negated; no factual issue was presented. At that point, it was up to the jury to decide whether to accept the assertion that the physical impact experienced by plaintiff in this accident was a competent producing cause of the embolic stroke.

Contrary to the dissent’s assertion, the opinion of plaintiff’s expert that the impact of the collision was a competent producing cause of the dislodgement of a clot, resulting in his stroke, is not the type of novel theory of causation that necessitates a Frye hearing; it was merely an opinion explaining the physiological process that caused the stroke plaintiff suffered.

Even assuming that the assertion by defendants’ expert warranted an evidentiary hearing to assess the reliability of plaintiff’s expert’s causation claims, the evidence presented at the Frye hearing sufficiently established the reliability of those claims.

Frye hearings are used “to determine whether the experts’ deductions are based on principles that are sufficiently established to have gained general acceptance as reliable” … . The test is particularly useful for newly minted or experimental processes or newly posited psychological theories, in order to weed out baseless and unreliable theories; a Frye hearing “should be held only if the basis for the expert’s conclusion is novel” … . “[W]here the proposed expert testimony concerns a claim that the plaintiff’s injury was caused by the actions taken by the defendants, the whole concept of the Frye analysis is of limited applicability” ….

As the [2nd] Department observed in Zito v Zabarsky (28 AD3d 42, 44…), “general acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” There is no need here for the consensus the dissent claims is necessary. Sadek v Wesley, 2014 NY Slip Op 02551, 1st Dept 4-15-14

 

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