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Question of Fact About Whether Horse Owner Liable for Injuries to Novice Rider

The Fourth Department affirmed the denial of summary judgment to the owners of a horse which allegedly brushed up against a tree, injuring the novice rider.  The court explained that the “knowledge of vicious propensities” doctrine applied here because there was evidence the defendants knew the horse had a propensity to ride too close to trees, the general release signed by plaintiff was void as against public policy, and the defendants did not establish as a matter of law that plaintiff had assumed the increased risk of horseback riding alleged here:

It is well settled that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … .  “[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” (id. at 447).  In support of their motion, defendants submitted the deposition testimony of plaintiff, wherein she testified that defendant and a guide employed by the Ranch instructed plaintiff to push off of the trees if the horse walked too closely to the trees on the single-file woodland trail.  * * *

Even assuming, arguendo, that defendants conclusively demonstrated that plaintiff executed the release, we conclude that, under these circumstances, where the riding lesson was ancillary to the recreational activity of horseback riding, General Obligations Law § 5-326 renders the release void as against public policy… .* * *

Finally, defendants failed to establish as a matter of law that plaintiff assumed the risk of horseback riding.  Horseback riding “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  Here, defendants submitted evidence that raised a question of fact whether they unreasonably increased the risks of horseback riding by using a bitless bridle on their horses, which did not provide plaintiff with the ability to control the horse, and by failing to give plaintiff, who was a novice rider, adequate instructions on how to control the horse … .  Vandeerbrook v Emerald Springs Ranch…, 855, 4th Dept 9-27-13

 

Emergency Doctrine Explained; Admissibility of Deposition Excerpts Re: Summary Judgment Motion Explained; Bicyclist Injured When Path Allegedly Blocked to Protect Child

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants. The plaintiff-bicyclist was injured when, it is alleged, one of the defendants stepped into the bicyclist’s path to protect children who were crossing the street. The court explained the admissibility requirements for excerpts of deposition testimony and an unsworn police report, as well as the emergency doctrine:

The unsigned excerpts of …defendants’ deposition testimony, which the defendants submitted in support of their motion, were admissible under CPLR 3116(a) since they were submitted by the party deponents themselves and, accordingly, those transcripts were adopted as accurate by those deponents … . Additionally, although the defendants initially failed to submit the certification page of the depositions of nonparties …, as well as those for the depositions of …defendants, they submitted those certifications in reply papers in response to the plaintiffs’ arguments in opposition … . Under the circumstances of this case, the late submission did not prejudice the plaintiffs, and the Supreme Court properly considered these certifications …. Furthermore, although unsigned, as noted above, the transcripts … were certified, and the plaintiffs did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the defendants’ motion for summary judgment … . However, the unsigned, uncertified excerpt of the injured plaintiff’s deposition was not in admissible form, nor was the uncertified, unsworn police report submitted by the defendants. Accordingly, neither of these items should have been considered in determining whether the defendants satisfied their prima facie burden … . * * *

“Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . ” This is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains that of a reasonable [person] under the given circumstances, except that the circumstances have changed'” … . ” Both the existence of an emergency and the reasonableness of a party’s response thereto will ordinarily present questions of fact'” … . Pavane v Marte, 2013 NY Slip Op 05991, 2nd Dept 9-25-13

 

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In Spite of Settlement of Underlying Action, the Legal Malpractice Case Alleging Failure to Adequately Investigate Can Go Forward

Plaintiff was attacked and injured in the lobby of his building.  He hired an attorney to bring a premises liability action.  The action was ultimately settled, but plaintiff brought a legal malpractice action against the defendant attorney alleging the attorney did not adequately investigate the security of the building.  The First Department determined that plaintiff, who was described as unsophisticated in legal matters, had stated a cause of action because the defendant attorney admitted he had relied entirely on a brief conversation with the plaintiff about the security situation at the building before recommending settlement.  The First Department explained the relevant principles as follows:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” … . A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” … . * * *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer. Furthermore, defendant says he told plaintiff, when he conveyed the settlement offer, that it was a “difficult liability case.” It is difficult to understand, on the record before us, how he made that assessment without going to the building, or speaking to the superintendent. Angeles v Aronsky, 2013 NY Slip Op 05955, 1st Dept 9-24-13

 

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No Negligence In School District’s, School’s and Attending Nurse’s Care of Child Who Died After Suffering an Allergic Reaction in School

In a full-fledged opinion by Justice Eng, the Second Department determined the action brought on behalf of a child who died in school after suffering an allergic reaction was correctly dismissed with respect to the Department of Education (DOE) and should have been dismissed with respect to the school and the attending nurse who was tasked with monitoring the child at school.  The lengthy opinion deals in depth with many topics including:  the DOE’s duty, the school’s duty, the nurse’s duty, the finding that the nurse was an independent contractor as opposed to an employee, and the proximate cause issue raised by the inability to determine what caused the allergic reaction.  The child was autistic and suffered from asthma and numerous severe allergies.  The DOE developed a plan (Individualized Education Program) which involved placement of the child in a private school equipped to care for children with special needs and the provision of a nurse who was with the child continuously during the school day.  The Second Department treated all the issues (including the adequacy of the medical care provided by the nurse) exhaustively and determined no questions of fact had been raised about the negligence of any of the defendants. Begley v City of New York, 2013 NY Slip Op 05867, 2nd Dept 9-18-13

 

Rear-End Collision Warranted Summary Judgment on Liability

In a rear-end collision case, the Second Department determined plaintiff’s motion for summary judgment on liability should have been granted:

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 claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that the defendant’s vehicle struck his vehicle in the rear as the plaintiff’s vehicle was slowing down for traffic in front of it … . In opposition, the defendant failed to raise a triable issue of fact. “[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” … . Robayo v Aghaabdul, 2013 NY slip Op 05889, 2nd Dept 9-18-13

 

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Question of Fact Whether City Had Notice of Pothole in Bicycle-Injury Case; Big Apple Pothole Map May Have Provided Notice

The Second Department affirmed the denial of defendant’s motion for summary judgment in a pothole bicycle-injury case.  The court determined that there was a question of fact about exactly where the pothole was and whether it was indicated on the Department of Transportation’s Big Apple Pothole map:

…”[W]here a municipality has enacted a prior written notice statute such as Administrative Code of the City of New York § 7-201(c)(2), it may not be subjected to liability for injuries arising from a defective roadway unless it has received timely prior written notice of the defective condition” … . A Big Apple map submitted to the Department of Transportation may serve as prior written notice of a defective condition … .

Here, the defendants failed to establish, prima facie, that they did not have prior written notice of the alleged defect. Where, as here, “there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff’s fall, and whether the alleged defect is designated on the map, the question should be resolved by the jury”… Chia v City of New York, 2013 NY slip Op 05873, 2nd Dept 9-18-13

 

Question of Fact Whether ¾ Inch Height Differential Was “Trivial”

In a slip and fall case, the Second Department reversed Supreme Court and determined there was a question of fact whether a defect, a ¾” height differential in a walkway, was “trivial:”

“Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law” … . “In determining whether a defect is trivial, the court must examine all of the facts presented including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury'” … . There is no “minimal dimension test” or per se rule that a defect, in order to be actionable, must be a certain height or depth … .

Here, in support of their motion, the Jamaica Seven defendants submitted evidence, including photographs, which showed that the bricks within the section of the entranceway where the plaintiff tripped were depressed below the adjacent public sidewalk, causing a height differential of at least 3/4 of an inch. This evidence, including the plaintiff’s deposition testimony, was insufficient to demonstrate as a matter of law that the alleged defect was trivial and, therefore, not actionable… . Cardona-Torres v City of New York, 2013 NY Slip Op 05870, 2nd Dept 9-18-13

 

Primary Assumption of Risk Precluded Lawsuit

The Second Department determined Supreme Court should have granted defendant’s motion for summary judgment based on the doctrine of primary assumption of risk. Plaintiff was an experienced boxer and was injured when he stepped into a gap (about which he was aware) under the canvas surface of the boxing ring:

The doctrine of primary assumption of risk provides that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with any open and obvious conditions of the playing field, including risks arising from “less than optimal conditions” … . Thus, “when an experienced athlete . . . is aware of the existence of a particular condition on the premises where the activity is to be performed, and actually appreciates or should reasonably appreciate the potential danger it poses, yet participates in the activity despite this awareness, he or she must be deemed to have assumed the risk of injury which flows therefrom” … . Baccari v KCOR, Inc, 2013 NY Slip Op 05865, 2nd Dept 9-18-13

 

Plaintiff Unable to Identify Cause of Fall

In reversing Supreme Court, the Second Department determined a slip and fall action against defendant (Trump Village) should have been dismissed because the plaintiff could not identify the cause of her fall:

” [A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation'” … . Although “[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident, . . . mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” … . Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation … . Ash v city of New York, 2013 NY Slip Op 05864, Second Dept 9-18-13

 

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Out-Of-Possession Landlord Not Liable for Slip and Fall

In affirming the grant of summary judgment to an out-of-possession landlord in a slip and fall case, the Second Department explained:

“An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation … . Castillo v Wil-Cor Realty Co, Inc, 2013 NY Slip Op 05871, 2nd Dept 9-18-13

 

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