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Bicyclist’s Negligence as a Matter of Law Did Not Warrant Summary Judgment to Defendant (Bus Driver, etc.)/There Can Be More than One Proximate Cause of an Accident

The Second Department determined that the fact that the plaintiff was riding his bicycle the wrong way on a one-way street (negligence as a matter of law)  did not mandate summary judgment for the defendant bus driver (Wright).  There can be more than one proximate cause to an accident and defendant failed to demonstrate it was free from fault:

Although the plaintiff concedes that he was negligent as a matter of law by traveling the wrong way on Adams Street in violation of Vehicle and Traffic Law § 1127(a) …, there can be more than one proximate cause of an accident, and the proponent of a motion for summary judgment has the burden of establishing freedom from comparative fault as a matter of law … .

Here, the defendants failed to make a prima facie showing as a matter of law that Wright was free from any comparative fault in the happening of the accident. There are triable issues of fact as to whether Wright failed to see what was there to be seen through the proper use of his senses …, failed to exercise due care to avoid the collision (see Vehicle and Traffic Law § 1146[a]…), or was traveling at a reasonable and prudent speed as he approached the intersection in light of the conditions then present … . Espiritu v Shuttle Express Coach Inc, 2014 NY Slip Op 01707, 2nd Dept 3-1914

 

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Conclusory and Unsupported Affidavit from Plaintiff’s Expert Did Not Raise a Question of Fact/Standard of Care for Doctors and Mental Health Professionals In the Context of a Patient’s Post-Treatment Suicide Described

The First Department, in a full-fledged opinion by Justice Sweeny, reversed Supreme Court and granted the defendants’ motion for summary judgment dismissing the action.  The complaint alleged that plaintiff’s husband’s suicide was the result of negligence on the part of the treating doctors, psychiatrists and other health professionals.  The court noted that in most instances the affidavit from an expert asserting a deviation from the appropriate standard of care will be sufficient to defeat summary judgment.  But here the affidavit from plaintiff’s expert was conclusory and unsupported:

It is well settled that “a doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgment elected to pursue, proves ineffective. . .” … . Liability is imposed “only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” … . Although a plaintiff’s expert may have chosen a different course of treatment, “this, without more, represents, at most, a difference of opinion among [medical providers], which is not sufficient to sustain a prima facie case of malpractice'” … . In the context of mental health providers, we have held that “[w]hen a psychiatrist chooses a course of treatment, within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability” … . Where a psychiatrist fails to predict that a …patient will harm his or herself if released, liability will likewise not attach for a mere error in professional judgment … . While it is true that “the line between medical judgment and deviation from good medical practice is not easy to draw” … , the “prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instance it involves a measure of calculated risk. If liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitations of a vast number of patients would be impeded and frustrated” … . However, if a decision to release a patient was less than a professional medical determination, liability may attach … . A decision will not be insulated by the medical judgment rule if it is not based upon a careful examination … .

Generally, ” the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants'” … . To suffice, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … . However, where “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment” … . Park v Kovachevich, 2014 NY Slip Op 01679, 1st Dept 5-13-14

 

Licensee Assumed Sufficient Control Over Hired Premises to Create Duty to Maintain Premises in Safe Condition

The Third Department determined the American Cancer Society (ACS), as a licensee, had assumed sufficient control of the premises hired for an event hosted by the ACS to create a duty to maintain the premises in a safe condition.  Plaintiff had tripped over a cable placed by an outfit hired by ACS to provide audio-visual services:

Supreme Court properly concluded that ACS owed plaintiff a duty of care. In the context of premises liability, a party owes a duty to take reasonable measures to protect others from dangerous conditions on the property only where that party owns, occupies or controls the property or makes a special use of it … . No party contends that ACS owned, leased or made special use of the Hall of Springs. However, ACS, as a licensee exercising control, owed a duty to those on the property to maintain the premises in a reasonably safe condition during the period of its use … . Although “mere sponsorship, absent control, does not render [an entity] legally responsible” for defects on the premises …, ACS’s involvement with the gala exceeded bare sponsorship. ACS entered into a contract with Mazzone Management for use of the Hall of Springs, approved the floor plan for the gala, hired ACES to provide audiovisual services, and hired a band for entertainment, and ACS representatives were present during and oversaw the set up and the event. An ACS representative testified at her deposition that she was present during the set up between 1:00 p.m. and 4:00 p.m. on the day prior to the event, that she performed a walk-through of the premises, and that if she had noticed any hazards – including tripping hazards – she would have pointed them out and had them remedied. As the record demonstrates that ACS “conceived of, planned, orchestrated and supervised the [gala],” it had control over the premises during the set up and the event and thereby owed a duty of care to those present to maintain the site in a reasonably safe condition … . Stevenson v Saratoga Performing Arts Center…, 517156, 3rd Dept 3-13-14

 

Question of Fact Whether Driver’s Gesture to Turn Was Proximate Cause of Collision

The Third Department determined there was a question of fact about whether defendant driver’s (Slawiendski’s) gesture indicating a second defendant driver (Shaut) could make a left turn in front of him was the proximate cause of plaintiff’s collision with the turning car:

…[T]he duty of a driver to act reasonably in signaling to another driver that he or she will yield the rightof-way or that the other driver may safely proceed is owed not just to the driver being signaled, but also to other motorists and passengers … . Here, there is evidence that Slawienski acted unreasonably based upon his testimony that he failed to check for traffic in his rear or side view mirrors before signaling to Shaut.  However, a signaling driver is liable only when the gesture is a proximate cause of a subsequent collision – an inquiry that “depends on whether the recipient of the gesture relied on it as an indication that the path was safe and clear” … . Proximate cause is generally a factual issue for a jury to resolve … . Here, Shaut testified that he relied on Slawienski’s signal in deciding to make the turn and would not have done so if not for the gesture; further, Slawienski testified that Shaut did not stop as he crossed into plaintiff’s lane, suggesting that Shaut relied on the gesture to indicate that the lane was clear. However, Shaut testified that he knew that he was separately obliged to check the safety of plaintiff’s lane; he stated that he slowed or stopped his vehicle before entering plaintiff’s lane to look for oncoming traffic, but did not see the motorcycle until after the collision. This evidence neither establishes as a matter of law that Shaut fully relied upon Slawienski’s gesture nor that his decision to proceed into plaintiff’s lane was entirely independent … . Thus, there are factual issues for the jury regarding the degree of Shaut’s reliance on Slawienski’s gesture, whether Shaut independently checked the safety of plaintiff’s lane, and if he did, whether the check was a superseding act severing the causal link between the gesture and the collision… . Nasadoski v Shaut, 516374, 3rd Dept 3-6-14

 

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Failure to Allege that But for the Legal Malpractice the Causes of Action Would Have Succeeded Required Dismissal

The Third Department determined plaintiff did not make out a prima facie case of legal malpractice because there was no allegation the causes of action would have been successful but for the alleged malpractice:

…[D]efendants correctly argue that Supreme Court should have granted their motion to dismiss the legal malpractice claim. It is well established that, “[i]n order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” … . Here, although the complaint is replete with allegations of [the attorney’s] alleged failures to use reasonable and ordinary skill in connection with both of plaintiff’s underlying claims, it contains no allegation that, but for these alleged failures, plaintiff would have been successful on either claim. Therefore, even if we accept the allegations as true and liberally construe the complaint to allege negligent representation by [the attorney] …, the allegations are insufficient to make out a prima facie case of legal malpractice… . Hyman v Schwartz, 516728, 3rd Dept 2-27-14

 

Defendant Not Entitled to Dismissal of Complaint On Ground that Condition of the Property Was Open and Obvious

The Second Department determined defendant was not entitled to summary judgment dismissing the complaint on the ground that the condition causing plaintiff’s injury was open and obvious. Plaintiff stepped back when fireworks were being set off in defendant’s yard. Plaintiff tripped on blocks forming a border around a tree and was impaled on a wooden stake within the border. The Second Department also determined the defendant was not entitled to dismissal of the negligent supervision cause of action (re: third persons setting off fireworks):

A property owner is charged with the duty of maintaining its premises in a reasonably safe condition … . A property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . The issue of whether a dangerous condition is open and obvious is also fact-specific, and usually a question of fact for a jury to resolve … . Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances … . A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted …. .The evidence relied upon by the defendant in support of his motion, which included the photographs attached to his affidavit as well as the parties’ deposition testimony, did not establish his prima facie entitlement to judgment as a matter of law by demonstrating that the subject condition was open and obvious under the circumstances of this case… . Pelligrino v Trapasso, 2014 NY Slip Op 01304, 2nd Dept 2-26-14

 

Height Differential Between Concrete Slabs in Sidewalk “Trivial” As a Matter of Law

The Second Department determined a defect which caused plaintiff to trip was “trivial” as a matter of law. The defect was a difference in height between two concrete slabs in a sidewalk:

A property owner may not be held liable 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, 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” … . “[T]here 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 not actionable… . Slattery v Sachen N High Sch, 2014 NY Slip Op 01310, 2nd Dept 2-26-14

 

A Prima Facie Case Under the Dram Shop Act Had Been Made Against Both Bars Which Served Plaintiff’s Decedent, Even Though the Alcohol Served at the First Bar Would Have Metabolized by the Time of the Accident Had Plaintiff’s Decedent Not Continued to Drink at the Second Bar

The Second Department determined a bar, defendant Mulinos, could be liable under the Dram Shop Act even though the alcohol consumed at Mulinos would have metabolized by the time of the vehicle accident had plaintiff’s decedent not consumed more alcohol. After leaving Mulinos, however, plaintiff’s decedent went to another bar, defendant Trotters Tavern, and was served more alcohol. A jury could have found the alcohol served at Mulinos contributed to his intoxication as he continued drinking at Trotters Tavern. The Second Department determined plaintiff had made out a prima facie case at trial that both bars were liable under the Dram Shop Act and, therefore, the trial judge should not have granted the defendants’ motions for judgments dismissing the complaint as a matter of law:

Contrary to the Supreme Court’s conclusion, accepting the evidence presented at trial by the plaintiff as true, and according it every favorable inference, the plaintiff established, prima facie, that there was a “reasonable or practical connection” between the alleged unlawful sale of alcohol at Mulinos and the resulting damages … . Although the Medical Examiner acknowledged that the alcohol that Sullivan consumed at Mulinos would have been metabolized by the time of the accident, “assum[ing] that [he] did not consume anymore alcohol that evening,” she also opined, based on the testimony of the witnesses and Sullivan’s blood alcohol content at the time of the accident, that Sullivan did indeed consume numerous drinks after leaving Mulinos. Considering the evidence presented, a jury could have reasonably concluded that Sullivan remained intoxicated throughout the night, that the alcohol consumed at Mulinos contributed to his intoxication to an appreciable degree, and thus, that there was a reasonable and practical connection between the alcohol served at Mulinos and the damages sustained in the accident … . Sullivan v Mulinos of Westchester Inc, 2014 NY Slip Op 01161, 2nd Dept 2-19-14

 

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Questions of Fact Raised About Whether Insufficient Warnings On Flammable Floor Refinishing Materials Constituted the Proximate Cause of the Injuries

In a full-fledged opinion by Justice Gische, the First Department determined a lawsuit based upon failure to warn survived summary judgment. While plaintiff’s decedent [Carino] was using highly flammable floor refinishing materials, the materials caught fire and plaintiff’s decedent was burned. There were warnings about fire on the containers and plaintiff’s decedent had worked with the materials before. But questions of fact were raised about exactly what dangers plaintiff’s decedent was aware of and, therefore, whether defendants were relieved (by the level of his knowledge) of the duty to warn of the dangers not addressed on the labels:

A product may be defective due to inadequate warnings of the risks and dangers involved in its foreseeable use … . The duty also extends to forseeable product misuse … . To be actionable, however, the absence of warnings must be a proximate cause of the claimed injuries … . Even if a duty to warn otherwise exists, recovery may be denied to a knowledgeable user, i.e. one who was fully aware of the specific hazard without receiving the warning … . While in a proper case the court can decide as a matter of law that there is no duty to warn …, in most cases whether a party is a knowledgeable user is a factual question … . Even if a user has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of the knowledge ….While there is evidence that Carino had some knowledge about general hazards associated with using floor refinishing products, it cannot be said, as a matter of law, that his knowledge base was sufficient to relieve defendants of any duty they may have had to provide adequate warnings. There is evidence that Carino had used floor refinishing products before and that he had been told by his employer that they were flammable and required certain safety precautions, such as shutting off the gas and electricity. There is no evidence, however, that he knew about the particular properties of each product he was using, including their flashpoints, the fact that one product was much more volatile than the other and the specifications for proper ventilation when using these products, or that he knew one product was prohibited for indoor use in the City of New York. Thus, it is for a jury to determine whether Carino had sufficient knowledge of the specific hazards attendant to the use of the floor finishing products to relieve defendants of any duty to warn of those hazards. Public Adm’r of Bronx County v 485 E 188th St Realty Corp, 2014 NY Slip Op 01142, 1st Dept 2-18-14

 

Hospital Does Not Have a Duty to Prevent a Patient from Leaving the Hospital Against Medical Advice or to Ensure Patient’s Safe Return Home

The Fourth Department, over a two-justice dissent, concluded a cause of action against defendant hospital brought by a patient who suffered frostbite after leaving the hospital against medical advice should have been dismissed:

…[P]laintiffs alleged that defendant was negligent in failing to prevent plaintiff from leaving the hospital and in failing to ensure plaintiff’s safety when he left the hospital inasmuch as defendant’s staff did not contact plaintiff’s wife or make arrangements for someone to pick him up. We agree with defendant that, pursuant to Kowalski v St. Francis Hosp. & Health Ctrs. (21 NY3d 480, 484-485), which was decided after the court rendered its decision …, it did not have a duty to prevent plaintiff from leaving the hospital against medical advice. We further agree with defendant that it did not have the concomitant duty to ensure plaintiff’s safe return home … . Inguitti v Rochester General Hospital, 1302, 4th Dept 2-14-14

 

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