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Fraternity Not Liable for Injuries Caused by Intoxicated Person

The Second Department ruled that summary judgment should have been granted to a fraternity (SPFI) in an action brought pursuant the General Obligations Law 11-100 (creating a cause of action against those who provide alcohol to persons who subsequently cause injury). Plaintiff was injured in a fight that took place outside the fraternity house and there was no evidence the assailant (Poffenbarger) was provided with alcohol while in the fraternity house:

A defendant may be liable for injuries caused by an intoxicated guest that occurred on the defendant’s property, or in an area under the defendant’s control, where the defendant had the opportunity to control the intoxicated guest and was reasonably aware of the need for such control … . Here, the [fraternity] defendants established their prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action insofar as asserted against SPFI by showing that the plaintiff’s injuries occurred in an area not under SPFI’s control and, thus, that SPFI had no duty to supervise or control Poffenbarger’s conduct in that area … .

…Supreme Court erred in denying that branch of the Sigma Pi defendants’ motion which was for summary judgment dismissing the cause of action to recover damages pursuant to General Obligations Law § 11-100 insofar as asserted against SPFI.

General Obligations Law § 11-100 provides:

“Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.” * * *

Here, the [fraternity] defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages pursuant to General Obligations Law § 11-100 … . Specifically, the [fraternity] defendants established… that SPFI did not knowingly cause Poffenbarger’s intoxication or impairment of ability … . Holiday v Poffenbarger, 2013 NY Slip Op 06658, 2nd Dept 10-16-13

 

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Late Notice of Claim Denied—Infancy Alone Not Sufficient Reason to Allow Late Notice

In affirming the denial of a petition for leave to file a late notice of claim, the Second Department noted that the infancy of the injured person did not compel the granting of the petition:

…[T]he factor of infancy alone does not compel the granting of a petition for leave to serve a late notice of claim … . Here, the failure to serve a timely notice of claim and the lengthy delay in seeking leave to serve a late notice of claim were not the product of the injured person’s infancy … . Furthermore, the excuse proffered for the delay in commencing this proceeding, that the petitioner, the infant’s father, was not aware of the extent of his daughter’s injury and disability until 4½ years after the accident, is unacceptable without supporting medical evidence explaining why the extent of the injury and disability took so long to become apparent… . Matter of Sparrow v Hewlett-Woodmere Union Free Scjh Dist (#14), 2013 NY Slip Op 06696, 2nd Dept 10-16-13

 

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Late Notice of Claim Denied—Criteria Explained

In affirming the denial a petition for leave to file a late notice of claim, the Second Department explained the relevant criteria:

Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the New York City Transit Authority (hereinafter the NYCTA) (see General Municipal Law § 50-e[1][a]…). In determining whether to extend the time to serve a notice of claim, the court will consider whether, in particular, the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to serve a timely notice of claim, and whether the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50-e[5]…). Matter of Ryan v New York City Tr Auth, 2013 NY Slip Op 06691, Second Dept 10-16-13

 

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Defendant May Be Liable for Obstruction in Municipal Right of Way

The Second Department determined the defendant’s (Argyros’s) motion for summary judgment in a slip and fall case should have been denied.  Plaintiff tripped on a piece of wood that was anchored into the ground.  Argyros owned the land and the piece of wood was in the town’s municipal right of way over the land.  There was evidence most property owners cared for the areas in the right of way:

” The law imposes a duty to maintain property free and clear of dangerous or defective conditions only upon those who own, occupy, or control property, or who put the property to a special use or derive a special benefit from it'” … . Here, while Argyros owned the real property on which the accident occurred and the Town possessed a right of way over the portion of it where the plaintiff fell, title to the land under the right of way is not determinative in assessing the issue of duty, as issues of control and maintenance of the property must also be considered … . * * *

The Supreme Court should have denied Argyros’s motion for summary judgment dismissing the complaint insofar as asserted against him, as the evidence submitted in support of the motion failed to eliminate all triable issues of fact as to whether he controlled or maintained the area of the property where the plaintiff fell … . Riccardi v County of Suffolk, 2013 NY Slip Op 06673, 2nd Dept 10-16-13

 

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Existence of Elevator Maintenance Contract Did Not Rule Out Duty of Care to Elevator User

The Second Department determined plaintiff had stated a cause of action in negligence against a company with a contract to maintain an elevator.  The elevator escape door and debris fell on plaintiff.  The court explained that the existence of a contract did not rule out that the company owed a duty of care to the plaintiff:

” Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party'” … . “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … Exceptions to this general rule exist “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launch[e]s a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties[;] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Here, [defendant] failed to meet its prima facie burden of demonstrating that no questions of fact existed as whether it failed to exercise reasonable care while repairing the subject elevator and whether it thereby launched a force or instrument of harm that caused the accident… . Dautaj v Alliance El Co, 2013 NY Slip Op 06657, 2nd Dept 10-16-13

 

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Erasure of Audio Recording Constituted Negligent Spoliation of Evidence Under New York Common Law—No Need to Turn to Federal Law Re: Preservation of Electronically Stored Information

In a full-fledged opinion by Justice Saxe, the First Department determined the City’s erasure of an audio recording related to a police chase that resulted in injuries to plaintiffs constituted negligent spoliation under New York common law and there was no need to rely on federal authority re: the spoliation of electronically stored information [ESI]:

…[P]laintiffs’ spoliation claim can be fully addressed under New York’s common-law spoliation doctrine. However, because plaintiffs rely exclusively on the [federal] Zubulake IV rule that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold'” to preserve evidence (220 FRD at 218), we briefly address the question of whether we need to import Zubulake’s rules into the established New York common-law rules as to spoliation of non-ESI evidence.

The cases in which this Court has explicitly adopted the Zubulake rulings have involved ESI discovery … . The usefulness of the Zubulake standard in the e-discovery arena, is … that it “provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered” (93 AD3d at 36). At the same time, … Zubulake “is harmonious with New York precedent in the traditional discovery context” … . This is an area that did not need greater certainty or clarification. * * *

We … conclude that reliance on the federal standard is unnecessary in this context. Zubulake interpreted federal rules and earlier federal case law to adapt those rules to the context of ESI discovery. However, the erasure of, and the obligation to preserve, relevant audiotapes and videotapes, can be, and has been, fully addressed without reference to the federal rules and standards. Strong v City of New York, 2013 NY Slip Op 06655, 1st Dept 10-15-13

 

Lab Conducting Blood Tests for Drugs Owed Duty of Care to Plaintiff Whose Blood Was Tested

In a full-fledged opinion by Judge Lippman, over two dissenting opinions, the Court of Appeals held that plaintiff had stated a negligence cause of action against a laboratory (Kroll) which issued a test-result positive for the presence of drugs and initiated a violation of probation proceeding against the plaintiff.  In concluding the laboratory owed a duty of care to the plaintiff, Judge Lippman wrote:

Although the existence of a contractual relationship by itself generally is not a source of tort liability to third parties, we have recognized that there are certain circumstances where a duty of care is assumed to certain individuals outside the contract … .  As relevant here, such a duty may arise “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm” … .  This principle recognizes that the duty to avoid harm to others is distinct from the contractual duty of performance.  Accepting the allegations of the complaint as true, Kroll did not exercise reasonable care in the testing of plaintiff’s biological sample when it failed to adhere to professionally accepted testing standards and, consequently, released a report finding that plaintiff had tested positive for THC.  The alleged harm to plaintiff was not remote or attenuated. Indeed, it was his own biological specimen that was the sole subject of this testing and he was directly harmed by the positive test result causing the extension of his probation and the necessity of having to defend himself in the attendant court proceedings.

Additionally, there are strong policy-based considerations that counsel in favor of finding that Kroll owed a duty to plaintiff under these circumstances.  Without question, the release of a false positive report will have profound, potentially life-altering, consequences for a test subject.  In particular, here, plaintiff faced the loss of freedom associated with serving an extended period of probation.  The laboratory is also in the best position to prevent false positive results. Under the circumstances, we find that Kroll had a duty to the test subject to perform his drug test in keeping with relevant professional standards and that the existence of its contract with the County does not immunize defendant laboratory.  Landon v Kroll Laboratory Specialists Inc, 142, CtApp 10-10-13

 

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Plaintiff Should Have Been Allowed to Amend Complaint to Allege City Had Notice of Sidewalk Defect

In a slip and fall case, the plaintiff did not allege the city had notice of the defect and sought to amend the complaint to add the allegation.  The Second Department determined plaintiff should have been allowed to amend:

… [T]he Supreme Court erroneously granted that branch of the City’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff had failed to plead prior written notice of the alleged sidewalk defect. Instead, under the facts of this case, the Supreme Court should have granted the plaintiff’s cross motion and permitted him to amend the pleadings and the notice of claim to add an allegation that the City received prior written notice of the alleged sidewalk defect where, as here, the amendment would not prejudice or surprise the City (see CPLR 3025; General Municipal Law § 50-e[6]…).  Perez v City of New York, 2013 NY Slip Op 06553, 2nd Dept 10-9-13

 

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Valid Cause of Action Stated in Slip and Fall Suit Against Abutting Property Owner for Obstruction in Sidewalk (Gas Cap Cover)

The Second Department reversed Supreme Court and determined the slip and fall complaint stated a cause of action against the owner of property abutting a sidewalk.  In the sidewalk was a gas cap cover, owned by a utility, and concrete on top of the gas cap created raised area which was alleged to have caused plaintiff to fall.  A Long Beach City Ordinance imposed a duty upon abutting landowners to remove obstructions. The defendant relied heavily on cases construing New York City’s sidewalk law, which differed from the more broadly worded Long Beach ordinance:

The Charter imposes broad obligations on abutting landowners with respect to the condition of sidewalks, and also provides for tort liability on those landowners:

“The owner . . . of lands fronting or abutting on any street . . . shall make, maintain and repair the sidewalk . . . adjoining his lands and shall keep such sidewalk . . . free and clear of and from snow, ice and all other obstructions. Such owner . . . shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk . . . or to remove snow, ice or other obstructions therefrom, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks . . . and the removal of snow, ice and other obstructions from sidewalks” (Charter § 256 …).

The Code of Ordinances of the City of Long Beach defines “sidewalk” as “any portion of a street between the curbline and the adjacent property line, intended for the use of pedestrians, excluding parkways” (Code of Ordinances of the City of Long Beach § 1-2). Here, the gas cap was located entirely within a sidewalk flag and was level with the sidewalk, and therefore apparently was intended to be traversed by pedestrians. Thus, the plaintiff contends, the concrete above the gas cap is covered by Long Beach’s sidewalk law, at least to the extent that it may have been an “obstruction” on the sidewalk. Klau v Belair Bldg LLC, 2013 NY Slip Op 06548, 2nd Dept 10-9-13

 

Triable Issues of Fact in Lawsuit Against Bus Company and Property Owner for Slip and Fall on a Speed Bump

In reversing Supreme Court and reinstating the complaint, the Second Department determined there were triable questions of fact whether plaintiff was negligently allowed to step off a bus onto a speed bump, causing her to fall, and whether the property owner (JQ) allowed a dangerous condition (speed bump) to exist:

The [bus company] defendants failed to establish, prima facie, that they fulfilled the duty to alighting passengers to stop at a place where they may safely disembark and leave the area … . Triable issues of fact exist as to whether the driver was aware, or reasonably should have been aware, of the presence of a speed bump in the subject location, whether the speed bump constituted a dangerous condition, and whether the driver should have stopped the bus at the designated stop or another location not adjacent to a speed bump … . There is also a triable issue of fact as to whether the driver failed to see that which should have been seen through the reasonable use of one’s senses and was, therefore, negligent… . The injured plaintiff’s failure to positively state whether sand on the speed bump contributed to her fall was not fatal to her cause of action, because the evidence was sufficient to permit a finding based on logical inferences from the record, and not speculation alone, that the placement of the bus was a proximate cause of the accident, regardless of whether there was sand on the speed bump … .

The JQ defendants, as owners and operators of the office complex, which was open to the public, had a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress … . This duty may not be delegated by the owner to its agents or employees, or to an independent contractor … . The plaintiffs need not establish that the JQ defendants had notice of the alleged dangerous condition, as it was allegedly created by the JQ defendants or their agent … . The JQ defendants failed to establish, prima facie, that they did not create a dangerous condition on the premises in placing the speed bump, or causing it to be placed, in the subject location. There are triable issues of fact as to whether the speed bump constituted a dangerous condition or was readily visible to a disembarking bus passenger, given its location near the bus stop, and given the conflicting testimony as to whether the speed bump was painted yellow … . Furthermore, triable issues of fact exist as to whether the circumstances were such as to render the subject speed bump a trap for the unwary … . Some visible hazards, because of their nature or location, are likely to be overlooked. The facts here do not warrant concluding as a matter of law that the speed bump was so obvious that it would necessarily have been noticed by any careful observer, so as to make any warning superfluous… . Grizzell v JQ Assoc LLC, 2013 NY Slip Op 06544, 2nd Dept 10-9-13

 

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