The Fourth Department determined a 4 ½ inch drop just inside the entrance to a bowling alley raised a question of fact about whether the drop was a dangerous condition, even though no building codes applied. In addition, there was a question of fact about the failure-to-warn cause of action. Belsinger v M & M Bowling & Trophy Supplies, Inc, 558, 4th Dept 7-5-13
SLIP AND FALL
The Fourth Department reversed Supreme Court and granted summary judgment dismissing claims which alleged Sirota, who worked as an independent contractor for defendant Ridgeway, was negligent in advising plaintiff to purchase “certain security and investment vehicles.” The Fourth Department determined Ridgeway was entitled to summary judgment as Ridgeway had demonstrated it owed no duty of care to plaintiff to supervise Sirota (an independent contractor) because it did not direct or control Sirota’s providing investment advice:
…“[O]rdinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractors’ work is performed”… . Although there are exceptions to that general rule …, we conclude that none apply to the circumstances presented here. Although plaintiff’s claim sounds in negligent supervision, one of the recognized exceptions…, it is well settled that “the mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal”,,, Wendt v Bent Pyramid Productions, LLC, et al, 448, 4th Dept 7-5-13
In affirming the denial of plaintiff’s motion for summary judgment, the Second Department explained the standard for finding liability on the part of members of volunteer fire companies:
Members of volunteer fire companies may not be held liable for acts done in the performance of their duties in the absence of “willful negligence or malfeasance” (General Municipal Law § 205-b;…. Here, the plaintiff failed to establish, prima facie, that the manner in which [defendant]. operated the vehicle at the time of the accident constituted willful negligence or malfeasance…. Schleger v Jurcsak, 2013 NY Slip Op 05056, 2nd Dept 7-3-13
The Second Department determined that defendant’s motion for summary judgment should have been denied. The plaintiff was injured when his bicycle struck garbage and debris on a sidewalk abutting a building owned by defendants.
New York City Administrative Code § 7-210 imposes a duty upon property owners to maintain the sidewalk adjacent to their property. That duty includes the duty to remove “dirt or other material from the sidewalk,” which includes debris on the sidewalk which came from garbage bags placed on the sidewalk by the property owner (New York City Administrative Code § 7-210 [b];…). On their motion for summary judgment, the defendants bore the burden of establishing that they neither created the hazardous condition nor had actual or constructive notice of its existence…. The defendants failed to establish their entitlement to judgment as a matter of law. They failed to demonstrate that they did not create a dangerous condition, nor did they establish that they properly maintained the sidewalk as required by Administrative Code of the City of NY § 7-210… . Weinberg v 2345 Ocean Assoc, LLC, 2013 NY Slip Op 05060, 2nd Dept 7-3-13
In an action based on a leaky roof in a condominium, the First Department determined plaintiffs were entitled to summary judgment on the negligence cause of action against the sponsor and the cause of action for nuisance, also sounding in negligence, should not be dismissed:
The sponsor owed a nondelegable duty to plaintiffs to keep the condominium, including its roof, in good repair (see Multiple Dwelling Law § 78[1];…) . The sponsor breached that duty: Its principal… admitted that the original roof that the sponsor had caused to be installed did not render the condominium watertight and that there were instances of water infiltration into plaintiffs’ unit that needed to be addressed by the sponsor. * * *
Plaintiffs are correct that nuisance can be negligent; it does not have to be intentional…. In any event, they raised a triable issue of fact whether the sponsor’s allowing water to continue infiltrating their unit was intentional…. Liberman v Cayre Synergy 73rd LLC, 2013 NY Slip Op 04996, 1st Dept 7-2-13
In an action based on the allegation a bus was traveling too close to the curb when it struck plaintiff, the First Department (over a dissent) determined testimony that bus drivers’ operating criteria “are much higher than anyone else’s, so I would look at the accident by our standards a lot different from anyone else” required a new trial on liability:
The admission of testimony that holds a defendant to a higher standard of care than required by common law is clearly erroneous…. Moreover, the admitted testimony cannot be considered harmless error because it concerns the ultimate issue to be decided and corroborates unsupported theories of liability proffered by plaintiff’s expert, thereby lending them an unwarranted air of authority. It is well settled that “the duty owed by one member of society to another is a legal issue for the courts”…. Only after the extent of a duty has been established as a matter of law may a jury resolve — as a question of fact — whether a particular defendant has breached that duty with respect to a particular plaintiff…. As this Court has noted numerous times, “Where the offered proof intrudes upon the exclusive prerogative of the court to render a ruling on a legal issue, the attempt by a plaintiff to arrogate to himself a judicial function under the guise of expert testimony will be rejected”…. Williams v NYC Tr Auth, 2013 NY Slip Op 04975, 1st Dept 7-2-13
The First Department explained the application of res ipsa loquitur, where it was alleged a garage door suddenly came down on plaintiff’s head, as follows:
The motion court correctly determined that res ipsa loquitur applies in this action involving an accident that occurred, according to plaintiff’s testimony, when a garage door suddenly fell and struck him on the head, since this is the type of event that does not normally occur in the absence of negligence … . Notwithstanding defendants’ contentions that others could have had access to the garage door, plaintiff demonstrated sufficient exclusivity of control. “[R]es ipsa loquitur does not require sole physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control” … . Hutchings v Yuter, 2013 NY Slip Op 04988, 1st Dept 7-2-13
In affirming most of Supreme Court’s denial of a defendant’s motion for summary judgment, the Fourth Department explained why the economic loss doctrine did not preclude plaintiff’s recovery in tort, in spite of the contractual relationship between plaintiff and defendant and the contract-based causes of action in the complaint. Pursuant to two contracts, the defendant supplied electronics and fluorescent-tube recycling systems which allegedly failed resulting in mercury contamination:
…[T]he economic loss doctrine does not preclude plaintiff from recovering in tort as a matter of law.“ Pursuant to that doctrine, a plaintiff may not recover in tort against a manufacturer for economic loss that is contractually based, ‘whether due to injury to the product itself or consequential losses flowing therefrom’ ”…. Where, however, there is harm to persons or property other than the property that is the subject of the contract, a plaintiff is entitled to recover in tort… . The factors to consider are “the nature of the defect, the injury, the manner in which the injury occurred, and the damages sought”…. We conclude that defendant failed to meet its initial burden on the motion with respect to the causes of action sounding in tort because the evidence submitted by defendant establishes that the mercury contamination of plaintiff’s facility, which was allegedly caused by defendant’s products, caused damage to persons and property other than the property that was the subject of the contracts. Electrical Waste Recycling Group, Limited v Andela Tool & Machine, Inc…, 626, 4th Dept 6-28-13
The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the medical malpractice action was properly dismissed after plaintiff’s proof was put in. Defendant doctor intentionally left a guide wire (used during a surgical procedure) inside plaintiff’s body after he was unable to locate it. The guide wire was later removed with the aid of a special x-ray machine. The “foreign object” was not left plaintiff’s body unintentionally, which is a requirement of the res ipsa loquitur doctrine. And plaintiff was unable to show that it was the defendant doctor, and not someone else involved in the surgery, who exercised control over the guide wire:
Plaintiff Marguerite James commenced this medical malpractice action against defendants Dr. David Wormuth and his practice … after he failed to remove a localization guide wire during a biopsy of an area on plaintiff’s lung. On this appeal from the Appellate Division order affirming the dismissal of her amended complaint, we affirm.
In October 2004, a guide wire inserted into the plaintiff to assist with a biopsy of an area in her lung dislodged. Defendant Dr. Wormuth proceeded with the biopsy, but was unable to locate the dislodged wire. After an unsuccessful 20-minute manual search for the wire, defendant determined that it was better for the plaintiff to leave the wire and end the surgical procedure, rather than to extend the amount of time she was in surgery for him to continue searching for the wire. Defendant informed plaintiff after the surgery that he could not find the wire, and that he had determined that it was better to leave it rather than continue the search procedure.
Plaintiff subsequently returned to defendant complaining of pain she attributed to the lodged wire, and which she said was so significant that it disrupted her ability to work. Approximately two months after the first procedure, defendant performed a second operation. In that procedure, he successfully … located and removed the wire with the use of a special X-ray machine known as a C-arm. * * *
To the extent counsel argued that res ipsa loquitur applies because the wire could only have dislodged due to the doctor’s negligence, plaintiff failed to establish the elements of res ipsa, specifically that Dr. Wormuth had exclusive control … . Dr. Wormuth testified that there were other medical personnel involved in the process of inserting the wire and transporting the plaintiff prior to the doctor’s discovery that the wire had dislodged. Plaintiff did not produce any evidence to the contrary. Instead, plaintiff’s counsel appears to have … believed that the control element was satisfied because the doctor had control over the operation. Whether the doctor was in control of the operation does not address the question of whether he was in exclusive control of the instrumentality, because several other individuals participated to an extent in the medical procedure. Given that plaintiff failed to produce any evidence that the doctor had exclusive control of the wire, or sufficient proof that “eliminate[s] within reason all explanations for the injury other than the defendant’s negligence,” the control element clearly has not been satisfied … . James v Wormuth, 2013 NY Slip Op 04839 [21 NY3d 540] CtApp 6-27-13
In a slip and fall case, the First Department precluded plaintiff from asserting theories of liability not in the notice of claim:
The notice of claim limited plaintiffs’ theory of liability to negligent maintenance, upkeep and repair of the subject staircase, asserting that the infant plaintiff was caused to slip and fall due to a liquid substance on the floor and inadequate lighting. The infant plaintiff testified that he was caused to fall by “slippery juice” that was “all over the stairs.” He testified that he wasn’t able to see all of the juice due to insufficient lighting. Plaintiffs’ new theory, in opposition to the motion for summary judgment, that the infant plaintiff was caused to slip and fall due to various design defects including, inter alia, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials, is precluded… Rodriguez v Board of Educ of the City of NY, 2013 NY Slip Op 04912, 1st Dept 6-27-13
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