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A Prank Played Upon Defendant Driver by a Passenger Warranted Instructing the Jury on the Emergency Doctrine

The Second Department, over a dissent, determined the trial court properly charged the jury on the emergency doctrine.  A jury found that the defendant was not negligent in the operation of her vehicle. A passenger in defendant’s car had pulled the string on her bikini top causing the top to fall off.  The court wrote:

In assessing the propriety of whether to instruct a jury on the emergency doctrine, the trial court must “make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a qualifying emergency’” … . “Only then is a jury instructed to consider whether a defendant was faced with a sudden and unforeseen emergency not of the actor’s own making and, if so, whether [the] defendant’s response to the situation was that of a reasonably prudent person” … . “The emergency instruction is, therefore, properly charged where the evidence supports a finding that the party requesting the charge was confronted by a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration’” … .

Here, “[v]iewing the evidence in the light most favorably toward giving the requested emergency doctrine instruction to the jury” … , based upon [defendant’s] testimony, there is a reasonable view of the evidence that her conduct was the product of a “ sudden and unexpected circumstance’” … . Contrary to our dissenting colleague’s determination, [defendant’s] general awareness that …a passenger in her vehicle…had engaged in certain distracting conduct while in the car would not preclude a jury from deciding that [defendant] did not anticipate that he would suddenly pull the strings on her bikini top, thereby causing the top to fall and her breasts to be exposed … . It was for the jury to find whether [defendant] was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was that of a reasonably prudent person… .  Pelletier v Lahm, 2013 NY Slip Op 07718, 2nd Dept 11-20-13

 

Question of Fact Re: Plaintiff’s Comparative Fault Precludes Summary Judgment—Supreme Court Erroneously Granted Summary Judgment to Plaintiff “To the Extent … Defendant Is Liable”

In a personal injury case involving a collision between defendant’s car and plaintiff’s bicycle, the Second Department determined that summary judgment should not have been granted to the plaintiff because there existed a question of fact about plaintiff’s comparative negligence.  Supreme Court had granted summary judgment to the plaintiff “to the extent that the defendant is liable:”

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault …, since there can be more than one proximate cause of an accident … . Thus, the issue of the defendant’s liability, a component of which is the apportionment of fault …, cannot be determined as a matter of law until it is decided whether any culpable conduct on the plaintiff’s part contributed to the happening of the accident. For this reason, the Supreme Court order granting the plaintiff’s motion “to the extent that the defendant is liable,” while directing that the “plaintiff’s comparative negligence, if any, shall be decided by a jury,” was internally inconsistent.  Lanigan v Timmes, 2013 NY Slip Op 07711, 2nd Dept 11-20-13

 

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Complaint Did Not State a Cause of Action Against City for Negligent Failure to Provide Emergency Medical Services—No “Special Relationship” Alleged

The Second Department determined a complaint against the City alleging a negligent failure to provide emergency services (resulting in the death of plaintiff’s decedent) should have been dismissed.  The court explained that the criteria for a “special relationship” with the city with respect to responding to a call for medical help had not been met:

As a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services” … . There is, however, a “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship’ between the municipality and the claimant” … . Such special relationship imposes a specific duty upon the municipality to act on behalf of the claimant … . As articulated by the Court of Appeals in Cuffy v City of New York, “[t]he elements of this special relationship’ are: (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”… .

Here, the complaint fails to allege any facts tending to show that there was any “direct contact” between the decedent and the defendants or that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the complaint does not state facts from which it could be found that there was a special relationship between the decedent and the defendants necessary to assert a negligence cause of action against the defendants … . In the absence of any allegation of such a relationship, the complaint cannot state a viable cause of action against the City based on its alleged negligence in failing to send an ambulance to the decedent’s home.  Freeman v City of New York, 2013 NY Slip Op 07707, 2nd Dept 11-20-13

 

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No Legal Duty Owed Independent of Contract—Negligence Cause of Action Dismissed

In the context of the dismissal of a tort action against Ferguson Electric Service Company after a building fire, the Fourth Department explained when a contractual relationship can give rise to an action in tort:

“It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . . This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … .  Plaintiffs cannot maintain their tort cause of action because Ferguson … owed no legal duty that is independent of the contract … .  Moreover, “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party…”… . Niagara Foods, Inc…v Ferguson Electric Service Company, Inc…, 1044, 4th Dept 11-15-13

 

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Plaintiff Entitled to Summary Judgment Where Defendant Crossed Into Her Lane Attempting to Make a Left Turn

The Fourth Department determined plaintiff (Daniels) whose car was struck head-on by defendant (Rumsey), whose car crossed into plaintiff’s lane attempting to make a left turn into a parking lot, was entitled to summary judgment, even though plaintiff may have been driving five miles an hour above the speed-limit:

…[W]e conclude that the court properly granted Daniels’s motion for summary judgment dismissing the complaint and cross claims against her.  Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left . . . into . . . [a] private road[] or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.” To meet her initial burden on her motion, Daniels was required “to establish both that [Rumsey’s] vehicle suddenly entered the lane where [Daniels] was operating [her vehicle] in a lawful and prudent manner and that there was nothing [Daniels] could have done to avoid the collision” … .  Daniels met that burden by submitting evidence that the accident occurred after Rumsey turned her vehicle left into Daniels’s path of travel in the southbound curb lane of Delaware Avenue, that Daniels had the right-of-way, and that Daniels was proceeding at a speed of between 30 and 35 miles per hour at the time of the accident, i.e., no more than five miles per hour above the posted speed limit.  Daniels also established that she did not see Rumsey’s vehicle until its grill was in her lane of travel, and that she had only “[f]ractions of a second” to take evasive measures, which proved unsuccessful.  Contrary to Rumsey’s contention, the fact that Daniels may have been driving at a speed in excess of five miles per hour over the posted speed limit of 30 miles per hour is inconsequential inasmuch as there is no indication that she could have avoided the accident even if she had been traveling at a speed at or below the posted speed limit … . Daniels v Rumsey, 1168, 4th Dept 11-15-13

 

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Admissibility of Medical Records as Business Records Does Not Preclude Evidentiary Objections to Admission

In the context of a personal injury case, the Fourth Department noted that the failure to object to the admissibility of medical records within 10 days (CPLR 3122-a [c]) did not render the documents automatically admissible:

Defendants contend that the court erred in denying their request at the commencement of trial to admit all of plaintiff’s medical records in evidence pursuant to CPLR 3122-a (c).  According to defendants, the records were automatically admissible because plaintiff raised no objection within 10 days of trial (see id.).  We reject that contention.  Plaintiff’s failure to object within 10 days before the trial waived any objection plaintiff had to the admissibility of the records as business records (see CPLR 3122-a [c]; 4518 [a]), but he did not waive any objection to their admissibility based on other rules of evidence … .  Indeed, plaintiff properly objected at trial on relevancy grounds with respect to the admissibility of some of the records… . Siemucha v Garrison…, 1145, 4th Dept 11-15-13

 

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Contractor May Be Liable to Noncontracting Third Party If Area Made Less Safe by Contractor’s Work

The Fourth Department reinstated a claim for contribution by the owner of a parking lot (Piedmont) against the contractor (Bach) hired to raze structures and fill in all holes.  Plaintiff was injured when his foot fell through a hole into a hidden vault below:

We conclude that Bach met its initial burden on its motion with respect to the claim for contribution by establishing its entitlement to judgment as a matter of law dismissing that claim … .  Specifically, Bach established as a matter of law “that the injured plaintiff was not a party to [the] contract . . . and that it thus owed no duty of care to the injured plaintiff” … .  In opposition, however, Piedmont raised triable issues of fact to defeat that part of the motion.  Although plaintiff was a noncontracting third party with respect to the construction contract between Bach and Piedmont, Bach may still be liable if, “in failing to exercise reasonable care in the performance of its duties, [it] ‘launche[d] a force or instrument of harm’ ” … , or otherwise made the area “less safe than before the construction project began” … .  Here, there are issues of fact whether Bach negligently filled in the vault only partially, and concealed its existence, thereby creating a force or instrument of harm or otherwise making the area less safe than before the demolition project began … . Paro v Piedmont Land and Cattle, LLC…, 1189, 4th Dept 11-15-13

 

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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

 

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