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Res Ipsa Loquitur Doctrine Re: Shard of Wood Ingested by Plaintiff Allowed Case to Survive Summary Judgment

In reversing Supreme Court, the Third Department determined the doctrine of res ipsa loquitur sufficiently raised a question of fact about whether a shard of wood, which was swallowed by plaintiff, was negligently present in food prepared by defendant (Cipriani):

Res ipsa loquitur is neither a theory of liability nor a presumption of liability, but instead is simply a permitted inference – that the trier of fact may accept or reject – reflecting a “common-sense application of the probative value of circumstantial evidence” … .  Criteria for res ipsa loquitur to apply are that “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” … .  The parties dispute the exclusive control element and, to establish that element, plaintiffs were “not obligated to eliminate every alternative explanation for the event, but only to demonstrate that the likelihood of causes other than the defendant[s’] negligence is so reduced that the greater probability lies at defendant[s’] door, rendering it more likely than not that the injury was caused by defendant[s’] negligence” … .

Here, the event occurred at a banquet hall operated by Cipriani.  Cipriani prepared and provided all of the food. Attendees were not permitted to bring food onto the premises. Individuals undisputedly under Cipriani’s control (pursuant to a contractual arrangement) acted as captains, servers and bartenders.  Cipriani thus exclusively prepared, provided and served the food.  Although the shard possibly could have been present when the ingredients for food were purchased from suppliers, it was not so small as to have been likely concealed and thus not visible upon careful preparation (cf. Restatement [Second] of Torts § 328D, Comment e, Illustration 2).  … There is sufficient proof under these circumstances to find ample control by defendants for purposes of res ipsa loquitur. Brumberg v Cipriani USA Inc, 2013 NY Slip Op 06759, 3rd Dept 10-17-13

 

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Ad on Internet, Together With Communications With Florida Medical Group, Did Not Confer Long-Arm Jurisdiction Over the Group in a Malpractice Action Based On Surgery Done in Florida

In a full-fledged opinion by Justice Sgroi, over two dissenters, the Second Department determined that an ad on the Internet by a Florida medical group (LSI) and the group’s website, together with communications between the New York plaintiff and the Florida group, were insufficient to provide New York with long-arm jurisdiction over a medical malpractice case brought by the plaintiff who had undergone surgery in Florida:

…[I]t is not the number of contacts which is determinative of whether a defendant purposely availed itself of the benefits and privileges of conducting business in New York. Each jurisdictional inquiry pursuant to CPLR 302(a)(1) will turn upon the examination of the particular facts of the case, “[a]nd although determining what facts constitute purposeful availment’ is an objective inquiry, it always requires a court to closely examine the defendant’s contacts for their quality” .. . “Purposeful activities are those with which a defendant, through volitional acts avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws” … . “Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances” … .

In the case at bar, the “totality of circumstances” does not provide the plaintiff with a basis for imposing long-arm jurisdiction over the defendants. Initially, we note that personal jurisdiction cannot be based upon LSI’s website, since, as far as the record reveals, this website was informational only and, thus, “passive” in nature. There is no indication that the website permitted a user thereof to purchase any goods or services from LSI, that it contained any online form application process, or that it allowed any interaction through the site … . “When a website is passive . . . plaintiffs may have to prove something more’ to justify the exercise of personal jurisdiction–that is, plaintiffs must show that defendant purposefully (albeit electronically) directed his activity in an substantial way to the forum state'” … .

This Court has also recently held that such a passive website, without more, cannot be used as the basis for the assertion of long-arm personal jurisdiction. Paterno v Laser Spine Inst, 2013 NY Slip Op 06669, 2nd Dept 10-16-13

 

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Police Officer Injured by Debris in City’s Vacant Lot Stated a Cause of Action Under General Municipal law

In finding a police officer had stated a cause of action against the City pursuant to General Municipal Law 205-e based on an injury caused by debris in an empty lot owned by the City, the Second Department determined that a violation of the NYC Health Code section requiring lots be kept free of debris could be the basis of the action:

To support a cause of action under General Municipal Law § 205-e, a plaintiff law enforcement officer, inter alia, must identify the statute or ordinance with which the defendant failed to comply … . Liability pursuant General Municipal Law § 205-e will exist where there is negligent noncompliance with “any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus” (General Municipal Law § 205-e), provided that the statute, ordinance, rule, order or requirement cited is found in a “well-developed bod[y] of law and regulation” that “impose[s] clear duties” … . Section 205-e must be applied ” expansively’ so as to favor recovery by police officers whenever possible” … .

New York City Health Code § 153.19 provides that “[t]he owner, agent, lessee, tenant, occupant or other person who manages or controls a building or lot shall be jointly and severally responsible for keeping . . . the premises free from obstructions and nuisances and for keeping . . . the . . . lot clean and free from garbage, refuse, rubbish, litter, other offensive matter or accumulation of water.” Contrary to the Supreme Court’s conclusion, this provision constitutes a well-developed body of law… . Mulham v City of New York, 2013 NY Slip Op 06666, Second Dept 10-16-13

 

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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