You are here: / Negligence

Homeowner Did Not Create Dangerous Condition (Wet Leaves on a Slope)/Condition Was Open and Obvious (No Duty to Warn)

The Third Department affirmed the grant of summary judgment to the defendants homeowners in a slip and fall case.  Plaintiff, who was following the homeowner as they walked around the house counting windows, slipped on a slope adjacent to the house which was covered with wet leaves.  The court determined defendants did not create the hazardous condition and had no duty to warn of the condition:

“Generally, landowners both owe a duty to exercise reasonable care in maintaining their property in a reasonably safe condition and have a duty to warn of a latent, dangerous condition of which the landowner is or should be aware” … . However, the landowner’s duty to warn “does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” … .  As the movants, defendants were required to “make a prima facie showing of entitlement to judgment as a matter of law” … .

Defendants satisfied their threshold burden, as the moving parties, by establishing … that they exercised reasonable care by maintaining the premises year round and in a seasonally appropriate manner, and that they did not create the condition, which occurred as a result of natural seasonal changes.  Notably, plaintiff’s fall did not occur on a pathway, walkway or driveway but, rather, on the surface of the ground along the side of the house on the unaltered natural contour of the land in an area that was exposed to the elements; it was not foreseeable that someone would traverse on this obviously slippery terrain so as to impose an obligation on the owners to take precautions such as clearing the ground area of leaves and debris … .

Moreover, defendants’ proof established that the slippery condition of the leaf and debris-covered natural, unimproved downward slope was an open and obvious hazard, as opposed to a latent or concealed one, in that the danger “could not be overlooked by any observer reasonably using his or her ordinary senses”…. . Freeese v Bedford, 516863, 3rd Dept 12-26-13

 

,

No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases

The Third Department determined summary judgment was properly granted to defendants in a lead-paint exposure case.  Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling paint in the apartment:

To raise a triable issue of constructive notice, plaintiff was required to show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment. Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants’ awareness that paint was peeling in the apartment.  Cunningham v Keehfus, 516733, 3rd Dept 12-26-13

The Third Department affirmed the same result in another lead-paint exposure case:

Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in the basement apartment, had the right to enter the apartment to make repairs, and did so.  However, he testified that he “didn’t know anything about lead poisoning” before the October 1990 inspection, did not remember peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the building before he purchased it.   This testimony was sufficient to establish on a prima facie basis that defendant did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish triable issues of fact… .

…[T]he record includes no evidence that the prior owner told defendant about the building’s previous lead problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his education and reading skills were limited – was sophisticated in the ownership and maintenance of rental properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues … Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd Dept 12-26-13

 

Defendant Shoveled Sidewalk and Snow Piled on Either Side Melted/Question of Fact Whether Defendant Created the Dangerous Condition Resulting from Subsequent Freezing of Melted Snow

The Second Department determined a question of fact existed about whether defendant created the hazardous condition (ice on a sidewalk) which caused plaintiff to fall.  Defendant testified she shoveled the sidewalk which left one-foot high piles of snow on either side of the sidewalk.  She also testified that she observed the piles of snow melting.  The temperature subsequently fell below freezing and was below freezing at the time of the accident:

The defendant, as the property owner, failed to establish as a matter of law that her snow removal activities did not create the allegedly hazardous icy condition which resulted in the plaintiff’s injuries … . The defendant’s submissions failed to eliminate all triable issues of fact as to whether the ice upon which the plaintiff slipped was formed when snow piles created by the defendant’s snow removal efforts melted and refroze … . Viera v Rymdzionek, 2013 NY Slip Op 08615, 2nd Dept 12-26-13

 

,

Rear-End Collision: No Rational Process By Which Jury Could Have Found Plaintiff Negligent

The Second Department determined there was no rational process by which the jury could have found the plaintiff negligent in a rear-end collision case.  Plaintiff’s CPLR 4401 motion for judgment as a matter of law should have been granted. The plaintiff was stopped to allow a pedestrian, who had run in front of the vehicle, to cross.  The defendant acknowledged that he took his eyes off the road briefly to look at the pedestrians and then struck the rear of plaintiff’s car:

” A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision'” … . Moreover, although the issue of comparative fault generally presents a question of fact …, that issue should be submitted to a jury “only where there is a triable issue of fact as to whether the frontmost driver also operated his or her vehicle in a negligent manner” … .

Here, viewing the evidence in the light most favorable to the defendant, there is no rational process by which the jury could find that the defendant had a nonnegligent explanation for the accident, or that the plaintiff was, to any extent, at fault in the happening of the accident. Clarke v Phillps, 2013 NY Slip Op 08585, 2nd Dept 12-26-13

 

“Wheel Stop” in Parking Lot Does Not Present an Unreasonable Risk of Harm

In this slip and fall case, the Second Department determined that a “wheel stop” or concrete divider in a parking lot is an open and obvious condition that does not present an unreasonable risk of harm:

While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons …, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … . Bellini v Gypsy Magic Enters Inc, 2013 NY Slip Op 08581, 2nd Dept 12-26-13

 

, , ,

Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff

The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he has given any statements to a quality assurance committee, even though the statements themselves would be privileged; (3) substantial changes to deposition testimony in an errata sheet would be allowed, but, based on the substantive nature of the changes, further deposition of the witness was appropriate as well.  With respect to questioning the defendant doctor as an expert about his own treatment, the court wrote:

In the context of a medical malpractice action, the Court of Appeals has held that “a plaintiff . . . is entitled to call the defendant doctor to the stand and question him [or her] both as to his [or her] factual knowledge of the case (that is, as to his [or her] examination, diagnosis, treatment and the like) and, if he [or she] be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” … .  Thus, although “one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness[,] [w]here . . . the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert” … . Lieblich … v Saint Peter’s Hospital of the City of Albany…, 516736, 3rd Dept 12-19-13

 

“Equitable Medical Monitoring” Cause of Action Rejected; Plaintiffs, Who Had No Signs of Cancer from Heavy Smoking, Were Not Entitled to Bring an Action to Cover the Costs of CT Scans to Periodically Check for Cancer

In a full-fledged opinion by Judge Pigott, with two dissenting judges, the Court of Appeals determined New York does not recognize a “medical monitoring” cause of action.  The plaintiffs were all heavy smokers.  None of the plaintiffs is currently sick.  The lawsuit sought damages to pay for “medical monitoring” (low dose CT scans “LDCT”) as a way to ensure early diagnosis of cancer:

Plaintiffs do not claim to have suffered physical injury or damage to property.  They assert, rather, that they are at an “increased risk” for developing lung cancer and would benefit from LDCT monitoring, which they claim would allow them to discover the existence of cancers at an earlier stage, leading to earlier treatment.

A threat of future harm is insufficient to impose liability against a defendant in a tort context … .  The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state’s tort system … .  The physical harm requirement serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims.

Having alleged no physical injury or damage to property in their complaint, plaintiffs’ only potential pathway to relief is for this Court to recognize a new tort, namely, an equitable medical monitoring cause of action. Caronia v Philip Morris USA Inc, 227, CtApp 12-17-13

 

Question of Fact About Resort Owner’s Duty to Maintain Walkways in Winter Despite Claim the Resort Was Closed in the Winter Months

The Third Department determined the claim that a resort was closed in the winter did not relieve the property owner from the duty to maintain the walkways during the winter months.  Plaintiff slipped and fell on a snow-covered walkway.  Condominiums at the resort were accessible year-round:

…[I]t is well settled that “a landowner has a duty to exercise reasonable care in maintaining his [or her] own property in a reasonably safe condition under the circumstances” … .  The nature and scope of a landowner’s duty and the persons to whom such duty is owed are determined by consideration of, among other things, “the likelihood of injury to another from a dangerous condition on the property, . . . the burden of avoiding the risk [as well as] the foreseeability of a potential plaintiff’s presence on the property” … .  “Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally” … .

In order to satisfy its burden on summary judgment, defendant was required to present evidence conclusively establishing that its duty to use reasonable care did not extend to plaintiff.  We reject defendant’s argument that it was not required to maintain the walkway on which plaintiff fell because the resort was closed to the public during the winter months.  It is undisputed that there was no gate or other apparatus blocking the public’s access to the resort and, apart from a sign posted on the main hotel door, there was no notice that either the resort property resort, generally, or the subject walkway, in particular, was closed to the public at the time of plaintiff’s accident. Significantly, the condominiums located on the resort property were accessible year-round, with no limitation on visitors.  It is also uncontroverted that defendant did not inspect the walkway in question.  In our view, defendant failed to establish as a matter of law that plaintiff’s use of the path was not reasonably foreseeable… . Drake v Sagbolt LLC, 516967, 3rd Dept 12-12-13

 

,

Snow Removal Contractor May Be Liable to Plaintiff in Slip and Fall Action/Question of Fact Whether Failure to Use Low-Temperature Salt Created a Dangerous Condition

The Third Department determined there was a question of fact whether a contractor hired to clear snow and ice created a dangerous condition by not using salt designed for low temperatures:

While a snow removal contractor is generally not liable to injured persons who were not parties to the contract …, plaintiffs argue the recognized exception that extends a duty to noncontracting third parties where the contractor fails to exercise reasonable care in the performance of duties such that he or she “‘launche[s] a force or instrument of harm'” … .

In opposition to the motion for summary judgment, plaintiffs submitted affidavits from experts who opined that, among other things, [defendant’s] application of plain, untreated rock salt to the parking lot on the morning in question was negligent because temperatures, which were below 20 degrees Fahrenheit, were too cold for plain rock salt to be effective.  According to plaintiffs’ experts, by using untreated salt instead of treated, low temperature salt, [defendant] caused snow shoveled from the sidewalk to the parking lot … to melt and then quickly refreeze, creating a layer of ice beneath the snow. There is no dispute that [defendant] had the option of using untreated or treated salt pursuant to the contract and that he had both kinds available.  There was also evidence that [defendant] was aware that snow would be shoveled from the sidewalk onto the parking lot, and [a witness] testified that he had observed salt in the area where plaintiff fell.  This evidence sufficiently raises a question of fact as to whether [defendant] “‘negligently create[d] or exacerbate[d] a dangerous condition'” by using untreated salt, resulting in the formation of the ice on which plaintiff allegedly slipped… .  Belmonte v Guilderland Associates LLC…, 516830, 3rd Dept 12-12-13

 

,

Defaulting Defendant Forfeits the Right to Discovery Re: Inquest on Damages

The Second Department determined that a defaulting defendant could not compel plaintiff to submit to an independent medical examination:

Although ” a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages,’ a defendant forfeits the right to discovery by defaulting in answering the complaint” … . Contrary to the Supreme Court’s determination, the defendant was not entitled to any further discovery, since its right to discovery was forfeited by its default in answering the complaint .. . Accordingly, the Supreme Court erred in denying the plaintiff’s cross motion for a protective order and directing him to submit to an independent medical examination. Kolonlowski v Daily News LP, 2013 NY Slip Op 08230, 2nd Dept 12-11-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy