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Vehicle Owner’s Uncontradicted Deposition Testimony Not Enough to Overcome Presumption Vehicle Driven with Owner’s Consent

The Second Department determined that the defendant vehicle owner (Witsell) did not overcome the presumption her vehicle was being driven with her consent:

Vehicle and Traffic Law § 388(1) “makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner’”… .. Under this statute, there is a presumption that the operator of a vehicle operates it with the owner’s permission … . The presumption may be rebutted by substantial evidence that the owner did not give the operator consent …

Here, Witsell failed to establish her entitlement to judgment as a matter of law. … “The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use” … . Since Witsell failed to meet her initial burden as the movant, the burden never shifted to the party opposing the motion to raise a triable issue of fact… . Ellis v Witsell, 2014 NY Slip Op 00630, 2nd Dept 2-5-14

 

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Medical Malpractice Stemming from “Lack of Informed Consent” Explained/Signing a Generic Consent Form Does Not Preclude Suit

The Second Department determined that a question of fact had been raised about medical malpractice stemming from a lack of informed consent.  The plaintiff’s signing of a generic consent form did not entitle the doctor to summary judgment:

…”[L]ack of informed consent is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence” … . A cause of action premised on a lack of informed consent “is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'” … . Thus, “[t]o establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Walker v Saint Vincent Catholic Med Ctrs, 2014 NY Slip Op 00653, 2nd Dept 2-5-14

 

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Under City Administrative Code, Accident Occurred Before Time Had Expired for Property Owner to Address Ice on Abutting Sidewalk/Lessee Did Not Exacerbate the Dangerous Condition/No Liability for Slip and Fall

The Second Department determined that neither the owner nor the lessee of commercial property could be held liable for a slip and fall on ice covering the abutting sidewalk.  Under the Administrative Code of the City of New York the owner had until 11:00 am to address the ice that formed the night before (the accident occurred prior to 11:00 am). And the lessee was not liable because it did not undertake any ice removal efforts which made the condition more hazardous:

“The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so” … . Section 7-210 of the Administrative Code of the City of New York (hereinafter section 7-210) places such a duty on commercial property owners, and imposes tort liability for injuries arising from noncompliance (see Administrative Code § 7-210[a], [b]…). “[T]he language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123” … . Pursuant to Administrative Code section 16-123(a), owners of abutting properties have four hours from the time the precipitation ceases, excluding the hours between 9:00 p.m. and 7:00 a.m., to clear ice and snow from the sidewalk (see Administrative Code § 16-123[a]…). Here, the owners had until 11:00 a.m. on the day of the accident to comply with the ordinance. Since that period had not yet expired at the time of the injured plaintiff’s fall, the owners demonstrated, prima facie, that they could not be liable for any failure to clear the sidewalk at the time of the accident … .

The tort liability imposed by section 7-210 extends to “the owner of real property abutting [the subject] sidewalk” (Administrative Code § 7-210[b]). In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous … . Schron v Jean’s Fine Wine & Spirits Inc, 2014 NY Slip Op 00648, 2nd Dept 2-5-14

 

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Malpractice Cause of Action Stated Against an Attorney Who Died Just Before the Statute of Limitations on Plaintiffs’ Action Ran Out

In a full-fledged opinion by Justice Tom, the First Department determined that plaintiffs had stated a valid malpractice claim against an attorney who died just before the statute of limitations expired:

That a cause of action might accrue when the plaintiff actually sustains a loss, however, does not require the conclusion that an attorney is absolved of responsibility for any and all consequences of his neglect of the matter simply because it occurred prior to accrual of an actionable claim. Giving plaintiff the benefit of every possible favorable inference that can reasonably be drawn from the pleadings … , as we must on a pre-answer motion to dismiss … it appears that the inaction of counsel rendered the lapse of plaintiff’s cause of action not merely possible—or even probable—but inevitable. On a motion directed at the sufficiency of the pleadings, the issue is whether the facts alleged fit within any cognizable theory of recovery, not whether the complaint is artfully pleaded …, and the circumstances of this matter do not warrant dismissal of the action, at this juncture, as against the … defendants. Cabrera v Collazo, 2014 NY Slip Op 00622, 1st Dept 2-4-14

 

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Interplay Between New York Labor Law and Federal Longshore Workers’ Compensation Act Discussed

Plaintiff was injured when he fell on a “float stage” which was used to transport workers and materials on navigable waters.  The First Department discussed the interplay between the Labor Law (elevation-related fall) and the Longshore Workers’ Compensation Act:

Since the accident in which plaintiff Joseph Pipia (hereinafter plaintiff) was injured occurred in navigable waters, and plaintiff, an employee who was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 USC § 901 et seq.), has been receiving benefits thereunder, federal maritime law is applicable to this case … . Plaintiff may not sue his employer, JES, since the LHWCA “precludes recovery of damages against [the injured worker’s] employer” …. . …

Plaintiff is also barred from asserting any claims other than Labor Law § 200 and common-law negligence claims against Trevcon, the vessel owner (see 33 USC § 933…). Contrary to plaintiff’s contention, the float stage involved in his accident constituted a “vessel” for purposes of the LHWCA … . While it consisted of wooden planks bolted together, had limited weight capacity and could only be moved short distances from the pier, it was regularly used to carry workers and materials around the water. Although it generally was tied to land structures with a line, it sometimes was untied to allow a worker to move to a different location to pick up materials from the pier. … “[A] reasonable observer, looking to the [float stage]’s physical characteristics and activities, would . . . consider it to be designed to [a] practical degree for carrying people or things on water”… . Pipia v Turner Constr Co, 2014 NY Slip Op 00612, 1st Dept 2-4-14

 

There Can Be More than One Proximate Cause/Defendants Did Not Establish Freedom from Comparative Fault

The Second Department determined that Supreme Court should not have dismissed causes of action against a restaurant and a valet parking service.  Plaintiff’s decedent was struck and killed as she attempted to cross the street when defendant driver passed cars double-parked in front of the restaurant:

” There can be more than one proximate cause of an accident'” … . Thus, ” the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law'” … . The issue of comparative negligence is generally one for the trier of fact … .

Contrary to the Supreme Court’s determination, [the restaurant] and the [parking service] defendants each failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. On this record, even assuming, arguendo, that the actions of [the driver] and the decedent were negligent and were proximate causes of the accident, the evidence submitted by [the restaurant] and the [parking service] defendants, in support of their motion and cross motion, respectively, failed to eliminate all triable issues of fact as to whether those defendants were free from comparative fault….  Spadaro v Parking Sys Plus, Inc, 2014 NY Slip Op 00494, 1st Dept 1-29-14

 

Parked Garbage Truck Furnished Condition for the Accident, But Was Not Proximate Cause of the Accident

The Second Department determined plaintiff’s complaint was properly dismissed because the accident was caused by plaintiff’s failure to see what he should have seen.  Plaintiff’s vehicle struck a garbage truck which was stopped partially in the roadway:

Although the issue of proximate cause is generally one for the jury …, liability may not be imposed upon a party who “merely furnished the condition or occasion for the occurrence of the event” but was not one of its causes … . Here, the defendants demonstrated their entitlement to judgment as a matter of law by presenting evidentiary proof that [defendant’s] conduct in stopping his truck partially in the roadway merely furnished the condition for the accident, but was not a proximate cause thereof… . Lee v D Daniels Contr Ltd, 2014 NY Slip Op 00487, 2nd Dept 1-29-14

 

Question of Fact About Negligent Supervision at Skating Rink

The Second Department determined there was a question of fact whether injury incurred at defendant’s skating rink was the result of defendant’s negligent supervision:

Those charged with supervising a skating rink cannot be held liable for an injury if the act precipitating the injury was so sudden that no amount of supervision could have averted the accident … . Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision … . The duration and nature of the allegedly reckless conduct are factors that bear on this issue… .  Fader v Town of Oyster Bay, 2014 NY Slip Op 00324, 2nd Dept 1-22-14

 

In a Slip and Fall Case, the Flawed Constructive-Notice Jury Instruction Required Reversal of the Verdict (Plaintiff Had Won) and a New Trial on Liability

The First Department, over a dissent, reversed the verdict in plaintiff’s favor in a slip and fall case because of a flawed jury instruction and ordered a new trial on liability.  Plaintiff alleged she slipped and fell on ice on a subway platform.  The First Department determined that the jury instruction on constructive notice was so flawed that a new trial was necessary:

Over objection and despite defendant’s request for the correct instruction, the trial court instructed the jury that it had to find that “defendant either knew about the dangerous conditions or circumstances and that would be actual notice or a reasonable person would conclude that such a condition existed, and that would be called constructive notice.” This instruction does not make it clear that in order to find constructive notice, the jury must conclude that the condition was visible and apparent, and that it existed for a sufficient length of time for defendant to have discovered it and taken curative action (see PJI 2:90; 2:11 A…).  Harrison v New York City Tr Auth, 2014 NY Slip Op 00277, 1st Dept 1-16-14

 

No Constructive Notice of Icy Condition/Allegation Defendant Created the Condition Based on Speculation

The First Department, over a dissent, affirmed the grant of summary judgment to the defendant in a slip and fall case. Plaintiff alleged she slipped and fell on a thin sheet of ice in a plaza in front of defendant’s building.  Defendant demonstrated that the area had been inspected an hour before the accident and no ice was visible.  Plaintiff acknowledged she could not see the ice.  Plaintiff’s allegation that defendant created the dangerous condition by running a fountain which was the source of a wind-borne spray of water on the plaza was deemed too speculative:

The evidence submitted by defendant, including security logs, establishes that defendant’s employees routinely inspected the area where plaintiff fell, had conducted an inspection one hour prior to her accident, and did not observe any ice. In opposition and in support of her cross motion, plaintiff failed to provide evidence showing that the ice was discernable.

On appeal, plaintiff does not dispute defendant’s lack of actual notice of ice on the plaza, having conceded, at her examination before trial, that it was not visible. She testified that although conditions at about 9:30 a.m. were bright and clear, it “looked like a thin layer of ice that wasn’t noticeable enough for me to see it before I fell.” Thus, the record establishes that the hazardous condition was not “visible and apparent” so as to enable defendant’s employees to discover it and take remedial measures… . Tompa v 767 Fifth Partners LLC, 2014 NY Slip Op 00276, 1st Dept 1-16-14

 

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