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A Contract Between a Hospital and a Security Company Was Not Invalidated by the Failure to Spell Out the Duties of the Security Personnel—Missing Element Filled in by Conduct; Interplay of Contract and Tort Liability to Third Parties Discussed

The First Department, in a full-fledged opinion by Justice Renwick, determined a security company (Burns), which had contracted to provide security at a psychiatric hospital (RUMC), was not liable, under contract or tort, to the family of a patient who escaped from the facility, engaged in a gun battle with police, and was killed. The opinion includes good discussions of contract liability to third parties versus tort liability to third parties. and the potential availability of contribution among joint tortfeasors that may apply even where no contractual or tort duty exists.  The First Department determined the contractual exclusion of liability to third parties was valid, the security company owed no duty to the plaintiff in tort, and contribution did not apply.  The central point of the opinion was that a security contract can be enforceable even if the precise duties of the security personnel are not spelled out in the contract. The missing element was not deemed essential and could be filled in by conduct:

…[C]ourts have consistently held that “where [as here] it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain”… . Under such circumstances, “[s]triking down a contract as indefinite and in essence meaningless is at best a last resort” …  .

In this case, there is a clear method for supplying the missing term, the parties’ course of conduct; all other terms were adopted directly from the written agreement. Thus, the only thing that was absent in this contract was a writing evincing the particulars of a non essential provision, which was later filled in by the parties’ mutual consent and course of conduct.  Aiello v Burns Intl. Sec. Servs. Corp., 2013 NY Slip Op 05767, 1st Dept 9-3-13

 

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Defendant in Medical Malpractice Action Should Have Been Allowed to Amend His Answer to Add Statute of Limitations Affirmative Defense

The Second Department reversed Supreme Court’s denial of defendant’s motion to amend his answer by adding the passing of the statute of limitations as an affirmative defense.  The Second Department explained:

Here, it is undisputed that the two-year statute of limitations applicable to a cause of action alleging wrongful death began to run on August 14, 2007, the date of the decedent’s death (see EPTL 5-4.1), and that the plaintiff commenced the second action, in which Lehman was a named defendant, more than two years after the decedent’s death. Accordingly, Lehman’s proposed affirmative defense of the statute of limitations as to so much of the complaint as sought to recover damages for wrongful death was not palpably insufficient nor patently devoid of merit on its face, and the plaintiff’s contentions regarding the relation back doctrine (see CPLR 203[b]) did not warrant the denial of Lehman’s motion. Consequently, as there was no evidence that the amendment would unfairly prejudice the plaintiff, the Supreme Court should have granted Lehman’s motion for leave to amend his answer without conducting a further examination into the ultimate merits of the proposed amendment … . “If [the plaintiff] wishes to test the merits of the proposed added . . . defense, [the plaintiff] may later move for summary judgment upon a proper showing” … . Carroll v Motola, 2013 NY Slip Op 05728, 2nd Dept 8-28-13

 

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School District Did Not Owe Special Duty to Plaintiff Injured in Fight After Hours on School Grounds; Failure to Lock Gate Not Proximate Cause of Injury

Plaintiff was assaulted on an athletic filed owned by defendant school district while in a group which was on the field without permission at 9:30 pm. The plaintiff alleged the school district was negligent in not providing security and in not locking the gates to the field. The Second Department determined the school district owed no special duty to the plaintiff and the failure to lock the gates was not the proximate cause of the injury:

The “provision of security against physical attacks by third parties . . . is a governmental function . . . and . . . no liability arises from the performance of such a function absent a special duty of protection” … . This special duty arises when a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies on the direct assurances of the municipality’s agents … .

… The mere provision of security does not give rise to a special duty of protection …. The District established that it did not make direct assurances regarding security to the infant plaintiff and that he did not rely on the provision of security in deciding to congregate with others on the field. * * *

A public entity may not escape liability for negligent acts which it performs in a proprietary capacity and which are a proximate cause of an injury which was sustained as the result of a foreseeable act by a third party … . However, the District demonstrated, prima facie, that the failure to lock the gates accessing the field was not a proximate cause of the infant plaintiff’s injuries, since the assault here was not a foreseeable act. In opposition, the plaintiffs failed to raise a triable issue of fact. Weisbecker v West Islip Union Free Sch Dist, 2013 NY slip Op 05743, 2nd Dept 8-28-13

 

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Snow Removal Contractor Owed Duty to Slip and Fall Plaintiff

The Second Department determined plaintiff in a slip and fall case was owed a duty of care by a snow-removal contractor.  The Second Department explained the relevant law and its application to the facts of the case as follows:

“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” .. . “However, in Espinal v Melville Snow Contrs. (98 NY2d 136), the Court of Appeals identified three situations where a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches an instrument of harm or creates or exacerbates a hazardous condition, (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 (id. at 140)” … .

Here, the plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the issue of liability… [—-] the defendant’s oral agreement with the property owner constituted a comprehensive and exclusive contractual obligation for the defendant to maintain the exterior of the subject premises and to clear the parking lot and walkways of snow and ice. This was sufficient to support a duty of care running from the defendant to the plaintiff based on the defendant’s displacement of the property owner’s duty to maintain the premises safely… . Sarisohn v Plaza Realty Servs Inc, 2013 NY Slip Op 05741, 2nd Dept 8-28-13

 

Where Plaintiff’s Vehicle Repaired to Pre-Accident Condition, No Additional Recovery for Diminution in Resale Value

Plaintiff’s brand new Mercedes was damaged in an accident but was fully repaired, and the repairs were paid for by the defendants’ insurance carrier.  Plaintiff sought damages based upon the diminution in resale value resulting from the fact that potential buyers would be made aware of the car’s involvement in the accident.  The Second Department affirmed Supreme Court’s dismissal of the complaint explaining that diminution in resale value is not to be taken into account:

The defendants established that the plaintiff has no cause of action to recover the damages he seeks herein. “The measure of damages for injury to property resulting from negligence is the difference in the market value immediately before and immediately after the accident, or the reasonable cost of repairs necessary to restore it to its former condition, whichever is the lesser” … . “Where the repairs do not restore the property to its condition before the accident, the difference in market value immediately before the accident and after the repairs have been made may be added to the cost of repairs” … . However, where, as here, there is no dispute that the repairs fully restored the vehicle to its condition before the accident, and the only basis of the claim made by the plaintiff for the difference in value immediately before and immediately after the accident is not that his automobile could not be fully repaired, but, rather, that after repair the resale value would be diminished because the car had been in an accident, “the diminution in resale value is not to be taken into account” … . Parkoff v Stavsky, 2013 NY slip Op 05737, 2nd Dept 8-28-13

 

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Questions of Fact Raised Whether Negligent Diversion of Water by Private Property Owner and Negligent Repair by Town Caused Dangerous Icy- Road-Condition; Defendant Driver Lost Control of Her Car on the Ice and Collided with Plaintiffs

The Second Department determined that questions of fact existed about whether defendant abutting property owner (Gromley) and the defendant town created the icy road condition that caused defendant driver to lose control of her car, thereby allegedly injuring the plaintiffs in a collision with the school bus in which plaintiffs were riding:

A private landowner may be liable for injuries sustained in a car accident that is proximately caused by an ice condition occurring on an abutting public roadway, where that ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway… . … [T]he plaintiffs raised a triable issue of fact as to whether the artificially diverted water from the Gormley defendants’ property contributed to the ice condition on the subject roadway that caused [defendant driver] to lose control of her car and collide with the school bus… . * * *

…[T]he plaintiffs raised a triable issue of fact as to whether the Town affirmatively created the condition through an act of its own negligence, and whether the Town’s negligence at the time the road was repaired immediately resulted in the existence of the hazardous condition … . Cebron v Tuncoglu, 2013 NY slip Op 05729, 2nd Dept 8-28-13

 

Question of Fact Whether Defect in Basketball Court Was Concealed Precluded Summary Judgment Based upon Doctrine of Assumption of the Risk

In reversing Supreme Court, the Second Department determined there was a triable issue of fact whether plaintiff, who was injured when he tripped on part of a defunct sprinkler system while playing basketball on defendant-town’s court, assumed the risks associated with using the court.  The Second Department wrote:

Here, the Town failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law by eliminating all triable issues of fact as to the applicability of the doctrine of primary assumption of the risk … . The evidence submitted in support of its motion, including the plaintiff’s deposition testimony and photographs of the basketball court and metal cap, demonstrated that the metal cap was small, was raised only slightly above ground level, was painted the same color as the basketball court, and was difficult to see from more than a few feet away. Under these circumstances, a triable issue of fact exists as to whether the condition was concealed, and it cannot be said as a matter of law that the plaintiff assumed the risks associated with it … .  Bunn v Town of North Hempstead, 2013 NY Slip Op 05727, 2nd Dept 8-28-13

 

Plaintiff Assumed the Risk of Injury in Martial Arts Class

In reversing Supreme Court, the First Department determined the defendant, which conducted a mixed martial arts class, was entitled to summary judgment, based on the assumption-of-risk doctrine, in an action brought by a participant in the class injured when sparring with another “stockier” student. The First Department explained the relevant legal principles:

It is well established that the doctrine of assumption of risk generally applies where the plaintiff is injured while voluntarily participating in a sport or recreational activity, and the injury causing event is a “known, apparent or reasonably foreseeable consequence of the participation” … . The participant engaging in a sport or recreational activity “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” … . Further, the assumption of risk doctrine considers the appreciation of risk measured “against the background of the skill and experience of the particular plaintiff” … . Tadmor v New York Jiu Jitsu Inc, 2013 NY Slip Op 05721, 1st Dept 8-27-13

 

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Erroneous Admission of Hearsay and Expert Testimony Re: ANSI Standards Required Reversal of Million Dollar Verdict in Slip and Fall Case

In reversing a million dollar verdict in a slip and fall case, the Second Department determined that a hearsay statement (“oh my God, someone else fell”) and expert testimony about the floor mats not complying with American National Standards Institute [ANSI] standards should not have been admitted:

…[T]he security guard’s statement did not qualify as a present sense impression or an excited utterance. The statement was not admissible as a present sense impression because it is clear that the statement was not made as the security guard perceived the happening of the accident, and there was no evidence that corroborated his statement… . Regarding the excited utterance exception, the plaintiff was required to demonstrate that “at the time of the statement the declarant was under the stress of excitement caused by an external event sufficient to still [his] reflective faculties and had no opportunity for deliberation”… . Here, the plaintiff failed to meet that burden. Therefore, it was error to admit the hearsay testimony concerning the out-of-court statement of the security guard.

The Supreme Court also erred in allowing the plaintiff’s expert to testify, in effect, that the defendants’ conduct regarding the placement of mats was negligent because it allegedly did not comply with regulations promulgated by the American National Standards Institute (hereinafter ANSI). “[ANSI] standards do not constitute statutes, ordinances, or regulations”… . Although the court did not charge the jury regarding ANSI standards, by permitting such testimony, it allowed the jury to improperly speculate that the defendants’ conduct should be measured against a higher standard of care than is required under the common law… . Gonzalez v City of New York, 2013 NY slip Op 05614, 2nd Dept 8-14-13

 

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Criteria for Accountant’s Liability to Third Parties in Absence of Contractual Relationship Explained

In finding that the complaint did not state a cause of action against an accountant for negligent misrepresentations made to third parties with no contractual relationship, the Second Department explained:

In certain circumstances, accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant… . In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance”… . Signature Bank v Holtz Rubenstein Reminick LLP, 2013 NY Slip Op 05564, 2nd Dept 8-7-13

 

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