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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

 

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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

 

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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

 

Under the Facts, a Stairwell Partially Covered by a Piece of Wood Was Not an Unreasonably Dangerous Condition

The Second Department determined that a stairwell leading to the basement of defendant’s restaurant, which was partially covered by a piece of wood, did not constitute an unreasonably dangerous condition.  Plaintiff fell down the stairwell after leaving a nearby bar by the back door and climbing over a fence:

A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries … . The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk … . “Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required to illuminate their property during all hours of darkness’”… .

[Defendant] submitted evidence demonstrating that it was not aware of any other prior similar incidents or injuries on its premises and that there was no access between the rear of its premises and the rear portions of the stores situated to the west of it, which included the subject bar. Additionally, [defendant’s] submissions demonstrated that the restaurant was closed at the time of the incident, that the back door of the restaurant was locked, and that none of [defendant’s] employees was at the premises. Thus, [defendant] established, prima facie, that under the circumstances of this case, the basement stairwell partially covered by a piece of wood did not constitute an unreasonably dangerous condition … . In opposition, the plaintiff failed to raise a triable issue of fact. Assefa v Bam, 2013 NY Slip Op 08220, 2nd Dept 12-11-13

 

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Uncovered Baseboard Radiator May Constitute an Unsafe Condition Created by Landlord

The First Department determined there were questions of fact about whether the landlord assumed a duty to cover a baseboard heating unit, whether the landlord created an unsafe condition by removing the baseboard heating unit’s cover, and whether the uncovered unit needed repairs or was defective.  The infant plaintiff, who suffers from mental retardation and cerebral palsy, was burned when her face and hand was in contact with an uncovered baseboard radiator for an unknown period of time.  Nina W v NDI King Ltd Partnership, 2013 NY Slip Op 08202, 1st Dept 12-10-13

 

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Workers’ Compensation Board’s Finding Re: Extent of Disability Should Not Be Given Collateral-Estoppel Effect in Related Negligence Action

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that collateral-estoppel effect should not be given to a finding by the Workers’ Compensation Board in a related negligence action.  Plaintiff, a delivery person, had been struck by a piece of plywood which fell from a building under construction in 2003.  The Workers’ Compensation Board found that plaintiff’s disability from the accident ceased as of January, 2006. In the related negligence action, the defendant sought to limit plaintiff’s proof of disability to the period prior to January, 2006.  The court held “that there is no identity of issue and that collateral estoppel therefore should not be applied:”

…[D]efendants have failed to meet their burden of establishing that the issue decided in the workers’ compensation proceeding was identical to that presented in this negligence action.  We have observed that the Workers’ Compensation Law “is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties” … .  The purpose of awarding such benefits is to provide funds on an expedited basis that will function as a substitute for an injured employee’s wages … .  We have observed that the term “disability,” as used in the Workers’ Compensation Law, “generally refers to inability to work” … .  In addition, the Board uses the term “disability” in order to make classifications according to degree (total or partial) and duration (temporary or permanent) of an employee’s injury … .  The focus of the act, plainly, is on a claimant’s ability to perform the duties of his or her employment.

By contrast, a negligence action is much broader in scope.  It is intended to make an injured party whole for the enduring consequences of his or her injury — including, as relevant here, lost income and future medical expenses. Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff’s lifetime.  Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical. Auqui v Seven Thirty One Limited Partnership, 212, CtApp 12-10-13

 

Question of Fact Whether Tavern Served Visibly Intoxicated Defendant

The Third Department determined the defendant tavern was unable to exclude the possibility defendant driver was served alcohol after defendant driver was visibly intoxicated in violation of General Obligations Law 11-101:

In order to establish its entitlement to summary judgment, the Tavern was required to present evidence excluding the possibility that it served [defendant driver] alcohol when she was visibly intoxicated (see Alcoholic Beverage Control Law § 65 [2]…).  Hurtado… v Williams, 516727, 3rd Dept 12-5-13

 

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Defendant’s Snow Removal Practices May Have Caused Icy Condition in Parking Lot

In a slip and fall case, the Third Department determined there was a question of fact about whether the snow removal practices of defendant’s contractor created the dangerous icy condition:

…[T]here are factual issues posed as to whether defendant’s snow removal procedures created the dangerous condition.  Defendant had hired an outside contractor to plow the snow into piles.  Plaintiff alleges that some of the piles were located on the parking lot’s perimeter, as well as between her parking spot and the sidewalk adjacent to the building.  There is a slight grade extending from these areas, encompassing the area of her fall.  Thus, there are factual issues as to whether the snow removal techniques caused the dangerous icy condition when the snow piles melted in the warm weekend weather and then refroze in the night before plaintiff’s accident… . Riozzi v 30 Kingston Realty Corporation, 516533, 3rd Dept 12-5-13

 

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Question of Fact About Whether the Three-Year Statute of Limitations for Professional Malpractice Was Tolled by the “Continuous Representation” Doctrine

The Second Department determined plaintiff had raised a question of fact about whether the “continuous representation” doctrine tolled the statute of limitations.  The complaint alleged that the defendant engineering and architectural firms failed to provide design and construction services which complied with the disability-accessibility design requirements.  The causes of action sounded in professional malpractice and breach of contract. Here the work was completed more than three years prior to the action (three-year statute of limitations applies even to the contract cause of action).  But the firms were later used to remedy the deficiencies uncovered by the Attorney General:

“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations (CPLR 214[6]…). “A cause of action to recover damages for professional malpractice . . . for defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship”… . However, a professional malpractice cause of action asserted against an architect or engineer may be tolled under the “continuous representation” doctrine if the plaintiff shows its reliance upon a continued course of services related to the original professional services provided … .

The “continuous representation” doctrine, as applied to professionals including architects and engineers, “recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed of the manner in which the services are rendered” … . The doctrine applies when a plaintiff shows that he or she relied upon a continuous course of services related to the particular professional duty allegedly breached… . * * *

The law recognizes that the supposed completion of the contemplated work does not preclude application of the continuous representation toll if inadequacies or other problems with the contemplated work timely manifest themselves after that date and the parties continue the professional relationship to remedy those problems … . In this regard, a motion to dismiss pursuant to CPLR 3211(a)(5) will be denied unless the facts establish that a gap between the provision of professional services on the particular matter is so great that the representation cannot be deemed continuous as a matter of law … . Regency Club at Wallkill LLC v Appel Design Group PA, 2013 NY Slip Op 08067, 2nd Dept 12-4-13

 

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“Special Relationship” Required Before Municipality Can Be Liable for Failure to Enforce Statute or Regulation

The Second Department determined Supreme Court should have dismissed a complaint against the village alleging plaintiffs were exposed to “noise, smoke and odor” emanating from a Verizon facility and the exposure constituted a health hazard.  The complaint against the village alleged the negligent failure to enforce rules, regulations and building codes.  The Second Department explained that absent a “special relationship” creating a duty of care for the benefit of particular people, liability may not be imposed on a municipality for failure to enforce a statute or regulation.  The criteria for a special relationship are:

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 the municipality 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… .

“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action”… .

With respect to the creation of a special relationship by the municipality’s voluntary assumption of a duty and the plaintiffs’ justifiable reliance on the municipality’s undertaking, four criteria must be shown: “ (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking’”… .

“[R]eliance must be examined in the specific context of the nature of the affirmative duty undertaken[,]” and “[i]t is the plaintiffs’ burden to show that the defendants’ conduct actually lulled them into a false sense of security, induced them to . . . forego other avenues of protection, and thereby placed themselves in a worse position than they would have been had the defendants never assumed the duty”… . Ferriera v Cellco Partnership…, 2013 NY Slip Op 07706, 2nd Dept 11-20-13

 

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