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In a Slip and Fall Case, the Flawed Constructive-Notice Jury Instruction Required Reversal of the Verdict (Plaintiff Had Won) and a New Trial on Liability

The First Department, over a dissent, reversed the verdict in plaintiff’s favor in a slip and fall case because of a flawed jury instruction and ordered a new trial on liability.  Plaintiff alleged she slipped and fell on ice on a subway platform.  The First Department determined that the jury instruction on constructive notice was so flawed that a new trial was necessary:

Over objection and despite defendant’s request for the correct instruction, the trial court instructed the jury that it had to find that “defendant either knew about the dangerous conditions or circumstances and that would be actual notice or a reasonable person would conclude that such a condition existed, and that would be called constructive notice.” This instruction does not make it clear that in order to find constructive notice, the jury must conclude that the condition was visible and apparent, and that it existed for a sufficient length of time for defendant to have discovered it and taken curative action (see PJI 2:90; 2:11 A…).  Harrison v New York City Tr Auth, 2014 NY Slip Op 00277, 1st Dept 1-16-14

 

No Constructive Notice of Icy Condition/Allegation Defendant Created the Condition Based on Speculation

The First Department, over a dissent, affirmed the grant of summary judgment to the defendant in a slip and fall case. Plaintiff alleged she slipped and fell on a thin sheet of ice in a plaza in front of defendant’s building.  Defendant demonstrated that the area had been inspected an hour before the accident and no ice was visible.  Plaintiff acknowledged she could not see the ice.  Plaintiff’s allegation that defendant created the dangerous condition by running a fountain which was the source of a wind-borne spray of water on the plaza was deemed too speculative:

The evidence submitted by defendant, including security logs, establishes that defendant’s employees routinely inspected the area where plaintiff fell, had conducted an inspection one hour prior to her accident, and did not observe any ice. In opposition and in support of her cross motion, plaintiff failed to provide evidence showing that the ice was discernable.

On appeal, plaintiff does not dispute defendant’s lack of actual notice of ice on the plaza, having conceded, at her examination before trial, that it was not visible. She testified that although conditions at about 9:30 a.m. were bright and clear, it “looked like a thin layer of ice that wasn’t noticeable enough for me to see it before I fell.” Thus, the record establishes that the hazardous condition was not “visible and apparent” so as to enable defendant’s employees to discover it and take remedial measures… . Tompa v 767 Fifth Partners LLC, 2014 NY Slip Op 00276, 1st Dept 1-16-14

 

Failure to Accurately Identify Where Slip and Fall Occurred in Notice of Claim Warranted Dismissal of Complaint

The First Department, over a dissent, determined a slip and fall complaint should have been dismissed because the notice of claim did not accurately identify the place where the fall occurred:

Under these circumstances, Supreme Court should have granted defendant summary judgment dismissing the complaint. In addition to giving a vague description in his notice of claim that did not describe the location of the alleged defect with sufficient particularity …, plaintiff gave contradictory versions of the accident location, which further rendered the notice of claim defective, since it served to obscure the correct location. Plaintiff did not advise defendant of the revised location until more than three years after the alleged accident, which prejudiced defendant’s ability to conduct a meaningful and timely investigation of the claim… . Robles v New York City Hous Auth, 2014 NY Slip Op 00181, 1st Dept 1-14-14

 

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Medical Corporation Not Responsible for Unauthorized Disclosure of Medical Information by Employee Acting Outside the Scope of Employment

In a full-fledged opinion by Judge Pigott, over a dissent, the Court of Appeals answered a certified question from the Second Circuit in the negative.  The question was: “Whether, under New York law, the common law right of action for breach of the fiduciary duty of confidentiality for the unauthorized disclosure of medical information may run directly against medical corporations, even when the employee responsible for the breach is not a physician and acts outside the scope of her employment?”:

… [A] medical corporation's duty of safekeeping a patient's confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment.  Doe v Guthrie Clinic Ltd, 224, CtApp 1-9-14

 

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Dismissal of Slip and Fall Case at Summary Judgment Stage Was Premature Where Relevant Evidence Is Entirely Within the Control of the Defendants

The Third Department determined summary judgment granted to the village and county in a slip and fall case should have been denied.  Plaintiff tripped on patched pavement on an approach to a bridge.  There was a question of fact whether the county or the village was responsible for repairs in that area.  Because the information regarding the repairs was totally beyond the control of the plaintiff, dismissal at the summary judgment stage was premature:

…[P]laintiffs have not produced any direct evidence that either the County or the Village performed the patching that plaintiffs’ expert says caused plaintiff’s injury.  Notably, however, neither defendant produced written policies, repair logs, inspection reports or other documentation – other than the survey – to support their respective claims; both deny that any pertinent records exist and rely exclusively upon the testimony of their officials.  The pertinent facts are entirely outside plaintiffs’ knowledge and within the exclusive knowledge of the parties moving for summary judgment – a circumstance in which summary judgment is inappropriate … .  In the absence of direct evidence, plaintiffs are forced to rely solely on circumstantial evidence to oppose defendants’ summary judgment motion – that is, the inference that, given the claim of each defendant that the other bears responsibility for maintaining the bridge approach, and the dearth of evidence that any other entity has such responsibility or authority, one of them must have performed the repairs that allegedly caused plaintiff’s accident … .   In these circumstances, “[a]lthough plaintiffs clearly will bear the burden of proof on the issue at trial, they raised sufficient issues of fact in the context of [these] summary judgment motion[s] to warrant having the circumstantial evidence and defendants’ credibility concerning the [creation of the defect] tested by cross-examination and assessed by the trier of fact”… . Guimond v Village of Keeseville, 515869, 516320, 3rd Dept 1-9-13

 

Question of Fact About Negligent Operation of a Ski Lift

The Fourth Department determined plaintiffs had raised a question of fact about whether the operators of a ski lift were negligent in failing to notice plaintiff’s skis were entangled as they approached the point where they were to get off the lift.  Supreme Court had determined the cause of action was prohibited by the assumption of the risk doctrine:

It is beyond debate that there is inherent risk of injury to participants in downhill skiing . . . Moreover, there is undoubtedly some risk of injury inherent in entering, riding and exiting from a chairlift at a ski resort.  However, . . . the latter is not of such magnitude as to eliminate all duty of care and thereby insulate the owner from claims of negligent supervision and training of the lift operator or negligent maintenance and operation of the lift itself since such negligence may unduly enhance the level of the risk assumed” (…see General Obligations Law § 18-101…). …

We conclude … that defendants’ own submissions raised triable issues of fact whether they were negligent in their operation of the chairlift, thereby unduly enhancing the risk to plaintiff … . … Upon reaching the sign directing passengers to prepare to unload, plaintiff noticed that her skis were entangled with her son’s skis.  Defendants did not slow or stop the chairlift, and plaintiff was unable to unload from the chairlift before it passed the unloading area.  Plaintiff was injured when she either jumped or was thrown from the chairlift before it reached the safety gate that would have stopped the chairlift.  Tone v Song Mountain Ski Center…, 1377, 4th Dept 1-3-14

 

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Plaintiff Did Not Raise Question of Fact About Whether Municipality Had Notice of Sidewalk Defect and Was Affirmatively Negligent

The Fourth Department, over a dissent, determined the plaintiff failed to raise a question of fact about whether the municipality created a dangerous condition by placing a piece of plywood over a hole in a sidewalk.  There was evidence the municipality had received a work order for the area in question and the area was inspected but no problem was found.  There was no evidence the municipality was responsible for placing the plywood over the hole:

Contrary to plaintiff’s contention, the court properly determined that the City’s prior written notice requirement applies inasmuch as the area where the accident occurred is part of the sidewalk … .  Because the City established in support of its motion that it did not receive prior written notice, the burden shifted to plaintiff to demonstrate the applicability of an exception to that requirement … .  We agree with defendants that the court erred in determining that plaintiff met that burden by establishing that such an exception applies, i.e., that the City was affirmatively negligent … .  Although plaintiff submitted a preaccident “work order” to the City for the location in question, she failed to adduce any evidence that the City placed the plywood over the hole in which she fell.  Further, the City established that, in response to the “work order,” it dispatched an employee who testified that he inspected the area in question, found nothing wrong with it, and performed no work. Thus, plaintiff failed to raise an issue of fact “whether the City created a defective condition within the meaning of the exception” to defeat defendants’ motion … . Pulver v City of Fulton …, 1086, 4th Dept 1-3-14

 

Res Ipsa Loquitur Cause of Action Should Not Have Been Dismissed/Question of Fact About Whether Handrail Which Came Loose Was In Exclusive Control of Defendant

The Fourth Department determined Supreme Court should not have granted defendant’s motion for summary judgment on plaintiff’s res ipsa loquitur case of action.  Plaintiff was injured when a handrail came loose from the wall in her apartment building:

Supreme Court … erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant established as a matter of law that it did not have exclusive control of the handrail, i.e., one of the necessary conditions herein for the applicability of the doctrine of res ipsa loquitur ….  We conclude that plaintiff raised an issue of fact whether the handrail was in the exclusive control of defendant, and thus that the court erred in granting defendant’s motion … .  …

“The exclusive control requirement . . . is that evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it . . . The purpose is simply to eliminate within reason all explanations for the injury other than defendant’s negligence” … .  Here, plaintiff established that access to the internal stairway is limited to the residents of the three units in the building and defendant’s maintenance staff …, and a former maintenance staff person testified that railings in other buildings had become loose and were tightened as needed.  We therefore conclude that plaintiff raised an issue of fact “that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it”… . Herbst v Lakewood Shores Condominium Association, 1337, 4th Dept 12-27-13

 

Restaurant Chair Collapsed: No Question of Fact About Constructive Notice of Condition of the Chair/Res Ipsa Loquitur Did Not Apply

The Fourth Department, over a two-justice dissent, affirmed the grant of summary judgment to defendant restaurant owner.  A chair at the restaurant collapsed when plaintiff sat down.  The court determined the defendant did not have constructive notice of the condition of the chair and the doctrine of res ipsa loquitur did not apply:

The duty of a property owner to inspect his or her property “is measured by a standard of reasonableness under the circumstances” … .  Here, defendant testified that she wipes down the chairs at the end of each day and that, “every month or so,” she performs a “major cleaning” of the restaurant, which includes an inspection of the chairs.  In the absence of any prior complaints, incidents, accidents, or any other circumstances that should have aroused defendant’s suspicion that the chairs were defective …, we conclude that plaintiffs failed to raise a triable issue of fact concerning the reasonableness of defendant’s inspection practices, and thus whether defendant had constructive notice of the alleged defective condition of the chair.

We reject plaintiffs’ alternative contention that notice to defendant was not required because the doctrine of res ipsa loquitur applies.  That doctrine “does not apply here because, inter alia, defendant was not in exclusive control of the instrumentality that allegedly caused plaintiff’s injuries,” i.e., the chair… . Catalano v Tanner, 1087, 4th Dept 12-27-13

 

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No Special Duty Owed to Claimant/County Clerk Cannot Be Sued For Failure to Properly Docket a Judgment

In a full-fledged opinion by Justice Angiolillo, the Second Department determined that the County Clerk could not be sued by a judgment debtor based on the clerk’s failure to properly docket a judgment.  The court held that no special duty of care was owed by the municipality to the claimant, and therefore it was unnecessary to address the “sovereign immunity” and “discretionary” versus “ministerial” issues:

A “special duty” is “a duty to exercise reasonable care toward the plaintiff,” and is “born of a special relationship between the plaintiff and the governmental entity” (Pelaez v Seide, 2 NY3d 186, 189, 198-199; see McLean v City of New York, 12 NY3d at 199).

“A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez v Seide, 2 NY3d at 199-200; see McLean v City of New York, 12 NY3d at 199). * * *

To satisfy the first and second prerequisites, the claimant must be “one of the class for whose particular benefit the statute was enacted,” and it must be shown that “recognition of a private right of action would promote the legislative purpose” of the governing statutes … . A determination that these two prerequisites are met here would require us to conclude that the class for whose particular benefit the governing statutes were enacted comprises judgment creditors, and that the legislative purpose of the statutory scheme was to make judgment creditors whole for their losses. This is simply not the case. * * *

In any event, even if the first two prerequisites have been met, the third one has not. “[T]he most critical inquiry in determining whether to recognize a private cause of action where one is not expressly provided is whether such action would be consistent with the over-all legislative scheme” … . A private right of action for a new type of claim should not be judicially recognized by implication “where the statutes in question already contain[ ] substantial enforcement mechanisms, indicating that the Legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . The judgment lien created by CPLR 5018 and 5203 is simply one weapon in the “arsenal of enforcement mechanisms under CPLR article 52” provided to judgment creditors… .  Flagstar Bank FSB v State of New York, 2013 NY Slip Op 08592, 2nd Dept 12-26-13

 

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