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Causes of Action Stated Against County for Allowing Public Traffic During Paving Operation and Violation of Regulation Requiring Truck-Brake Maintenance

The Third Department determined plaintiff had stated causes of action sounding in negligence and a violation of Labor Law 241(6).  Plaintiff was driving a truck hauling asphalt to a county roadway paving operation (which had been contracted out to a private company–Graymont) when the truck’s brakes failed. Plaintiff was seriously injured when, after avoiding public traffic, he jumped from the truck which continued on over an embankment. The court upheld the negligence claim against the county which was based upon the county’s permitting public traffic on the road during construction.  The court further determined the county was entitled to summary judgment on its indemnification action against the private construction company (Graymont—based upon the county’s contract with the company). And the court upheld the Labor Law 241(6) claim, finding the regulation requiring truck-brake maintenance supported the cause of action:

Plaintiff alleges that the County violated 12 NYCRR 23-9.7 (a),  which provides that “[t]he brakes of every motor truck shall be so maintained that such truck with full load may be securely held on any grade that may be encountered in normal use on the job.”  While the County does not dispute that this provision is sufficiently specific to form the basis for liability under Labor Law § 241 (6), it argues that the regulation is not applicable to the circumstances here.  Mindful that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” …, we cannot agree.  Although the regulation speaks in terms of the ability of the brakes to “h[o]ld” the construction vehicle, the purpose of the regulation is to ensure proper functioning of a truck’s brakes on any terrain or grade normally encountered.  Thus, we find that the language of the regulation addresses not only the ability of a truck’s brakes to hold a stopped truck in place, but also the ability of the brakes to bring a moving vehicle to a stop. Duffina v County of Essex…, 515346, 3rd Dept 11-14-13

 

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Abutting Property Owner Did Not Have a Duty to Maintain Crowd Control Barriers Placed on Sidewalk by City

The Second Department determined abutting property owners had no duty to maintain crowd control barriers erected by the City on sidewalks during the holiday season.  Therefore, plaintiff, who was allegedly injured tripping over a barrier, did not have a cause of action against the abutting property owner:

Generally, liability 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 … . “Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . Legislative enactment in derogation of the common law which creates liability where none previously existed must be strictly construed … .

Under the circumstances presented here, the defendant established, prima facie, that the barrier at issue, which was part of a long chain of barriers erected by the NYPD as part of its crowd control measures during the holiday season, was not part of the “sidewalk” for purposes of liability under Administrative Code § 7-210 … . Accordingly, Administrative Code § 7-210 is inapplicable and the defendant had no duty to maintain the barriers. Staruch v 1328 Broadway Owners, LLC, 2013 NY Slip Op 07467, 2nd Dept 11-13-13

 

Summary Judgment in Rear-End Collision Case

In a rear-end collision case, the Second Department affirmed summary judgment in favor of the plaintiff on liability.  The accident occurred when the weather was clear and the roads dry:

“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” … . A conclusory assertion by the operator of the following vehicle that the sudden stop of the vehicle caused the accident is insufficient, in and of itself, to provide a nonnegligent explanation … . The issue of comparative fault will be left for a jury to determine 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 … . However, ” [v]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead’… . Gutierrez v Trillium USA, LLC, 2013 NY Slip Op 07450, 2nd Dept 11-13-13

 

Defendant Failed to Demonstrate Lack of Constructive Notice of Condition; Did Not Present Evidence of Last Inspection of Area Where Slip and Fall Occurred

In a slip and fall case, the Second Department noted defendants’ failure to demonstrate when the area where the fall occurred had last been inspected:

By failing to demonstrate when the area where the plaintiff fell was last inspected in relation to the accident, the defendants failed to make a prima facie showing that they lacked constructive notice of the allegedly dangerous condition described by the plaintiff … . Further, the defendants, by merely pointing to gaps in the plaintiff’s proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden as movants seeking summary judgment on the issue of whether the condition complained of did in fact constitute a defect… . Griffin v JK Chopra Holding LLC, 2013 NY Slip Op 07448, 2nd Dept 11-13-13

 

“Sudden Stopping” and “Emergency Doctrine” Jury Instructions Proper in Rear-End Collision Case

Plaintiff was rear-ended by defendant [Dellapenta] on a clear, windy day when blowing snow caused a temporary whiteout. The jury returned a verdict of no cause for action.  The Fourth Department determined the jury was properly given the “sudden stopping” charge and the emergency doctrine:

While plaintiff claimed that he was forced to stop due to the actions of the vehicle ahead of him …, Dellapenta testified that plaintiff did not slow down before the whiteout, he did not see any vehicles ahead of plaintiff, plaintiff’s vehicle was completely stopped in the whiteout, he never saw plaintiff’s brake or hazard lights, and plaintiff told Dellapenta after the accident that he stopped because he could not see.  Thus, the issue whether plaintiff “stopped suddenly, without an apparent reason to do so,” was properly submitted to the jury … .

We reject plaintiff’s further contention that the court erred in instructing the jury on the emergency doctrine (see PJI 2:14) inasmuch as, evaluating the evidence in the light most favorable to defendants, a reasonable view of the evidence supported the conclusion that a sudden and temporary whiteout constituted a qualifying emergency … .  Although Dellapenta had previously experienced whiteouts … at that location, such experience does not negate the applicability of the emergency doctrine “as to the events in issue in this case” … . Barnes v Dellapente…, 1039, 4th Dept 11-8-13

 

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Emergency Doctrine Precluded Action on Behalf of Driver of Car Which Crossed Into On-Coming Lane of Traffic; ”Noseworthy” Doctrine Did Not Apply to Reduce Plaintiff’s Decedent’s Burden of Proof

The Fourth Department reversed Supreme Court and granted summary judgment to defendant who was struck when plaintiff’s decedent’s on-coming car crossed into defendant’s lane.  The court determined the “Noseworthy” rule (lowering the plaintiff’s burden of proof) did not apply and the emergency doctrine precluded recovery:

Under the emergency doctrine, “ ‘when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency’ ” … .  It is well established that a driver is “not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel” … .

Here, defendants met their initial burden by establishing that the emergency doctrine applied, inasmuch as they established that decedent’s vehicle unexpectedly crossed over into defendant’s lane of travel, defendant had been operating his vehicle in a lawful and prudent manner, and defendant had little time to react to avoid the collision … .  Although “it generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver’s] response was reasonable” …, we conclude that summary judgment is appropriate here because defendants presented “sufficient evidence to establish the reasonableness of [defendant’s] actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact”… . Shanahan… v Mackowiak…, 1105, 4th Dept 11-8-13

 

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“Patient/Visitor Occurrence Report” Not Statutorily Privileged in Malpractice Action Against Hospital

The Fourth Department determined Supreme Court properly allowed plaintiffs, in a medical malpractice action, to see a “patient/visitor occurrence report” generated by defendant hospital.  The court noted that the report is subject to the privilege set forth in Education Law 6527 (3), but the hospital did not establish the report was generated in connection with a quality assurance review or a malpractice prevention program:

…[T]he hospital failed to meet its burden of establishing that the report was “generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j” … .  Moreover, with respect to the privilege set forth in Public Health Law § 2805-j, we deem the conclusory statement in the affidavit submitted by the hospital’s director of risk management that “[t]he report was prepared solely and exclusively in connection with the hospital’s malpractice prevention program, as required by statute” to be insufficient to meet the hospital’s burden of demonstrating that the form was actually generated at the behest of the hospital’s malpractice prevention program.  Slayton … v Kolli…, 1083, 4th Dept 11-8-13

 

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“At Will” Clause in Employment Contract Precluded Action Based Upon Promissory Estoppel, Fraud and Negligent Representation/Criteria for Tortious Interference With Contract and Prima Facie Tort Not Met

The Third Department affirmed the dismissal of a complaint brought by a doctor against the hospital where he was employed and the doctor who supervised him.  The plaintiff was hired pursuant to an agreement which included an “at will” clause allowing termination without cause upon 60 days notice. Plaintiff was terminated upon 90 days notice. Plaintiff sued the hospital for promissory estoppel, fraud, and negligent representation.  Plaintiff sued his supervisor [Hussain] for tortious interference with contract and prima facie tort:

Plaintiff’s claims against the hospital all required a showing that, among other things, he reasonably relied on any alleged promises or misrepresentations made to him by the hospital … .  In this regard, we note that “[w]here, as here, ‘a plaintiff is offered only at-will employment, he or she will generally be unable to establish reasonable reliance on a prospective employer’s representations'” … . * * * Inasmuch as any oral assurances made by the hospital as to the security of plaintiff’s position could not have altered the at-will nature of the employment contract, the hospital established its prima facie entitlement to judgment as a matter of law dismissing the claims against it, shifting the burden to plaintiff “‘to establish the existence of material issues of fact which require a trial of the action’”… . * * *

… [A] claim of tortious interference with contract requires (1) the existence of a valid contract between a plaintiff and a third party, (2) a defendant’s knowledge of such contract, (3) the intentional inducement of a breach of that contract, and (4) damages … .  Significantly, as the contract here was terminable at will, plaintiff was also required to “show that [Hussain] employed wrongful means, such as fraud, misrepresentation or threats[,] to effect the termination of employment”… .No such showing was made here. * * *

“[Prima facie tort] requires a showing of an intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful . . . and that malevolence was the sole motivating factor” … .  Considering plaintiff’s acknowledgment that Hussain prevented him from examining patients as a result of complaints made by patients who wanted to be treated by Hussain and not plaintiff, plaintiff could not establishthat Hussain’s actions were motivated solely by “disinterested malevolence”… . Hobler v Hussain…, 516381, 3rd Dept 11-7-13

 

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Town Could Not Be Liable for Discretionary Judgment Made by EMT (Third Dept).

The Third Department determined that an EMT employed by the town made a discretionary judgment that plaintiff’s decedent did not need life support during transport to the hospital.  Plaintiff’s decedent’s condition worsened during the trip and he died a week later.  Because the EMT’s judgment was discretionary, the town could not be held liable:

The Court of Appeals recently held that when a municipality provides emergency first responder services in response to a 911 call for assistance, as the Town did here by dispatching its paramedic, “it performs a governmental function[, rather than a proprietary one,] and cannot be held liable unless it owed a ‘special duty’ to the injured party” … .  A plaintiff generally must first establish the existence of a special duty before it becomes necessary for the court to address whether the governmental function immunity defense applies …, but the special relationship issue is irrelevant where the government action in question is discretionary … .  “Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … .  Discretionary authority involves “the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … .

Although the record here at least arguably contains factual issues concerning whether the Town voluntarily assumed a duty to decedent or plaintiff, thereby creating a special duty …, we need not address that question because the Town’s actions were discretionary.  The Town’s paramedic exercised his discretion in making medical determinations concerning decedent’s condition … . DiMeo… v Rotterdam Emergency Medical Services, Inc, 516264, 3rd Dept 10-31-13

 

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False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice

In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:

Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others” (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff’s claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because “[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice”… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13

 

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