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More than One Possible Cause of Icy Condition Required Grant of Summary Judgment to Defendant

The Second Department affirmed the grant of summary judgment to the defendant in a slip and fall case.  The plaintiff alleged that the black ice which caused the fall was the result of water dripping from a gutter on defendant’s property. It had been drizzling for several days prior to the fall and was drizzling on the day of the fall. The court determined the attempt to link the icy condition to the dripping gutter was too speculative to support the action:

A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only if it created the dangerous condition or had actual or constructive notice of the condition … . “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” … .  Morreale v Esposito, 2013 NY Slip Op 05803, 2nd Dept 9-11-13

 

Not Enough Time Passed to Invoke Constructive Notice of Icy Condition Under “Storm Progress Rule”

The Second Department reversed Supreme Court and granted summary judgment to the defendant in a slip and fall case. The court determined not enough time elapsed to invoke constructive notice of the icy condition under the “storm progress rule:”

“A defendant may be held liable for a dangerous condition on its premises caused by the accumulation of snow or ice upon a showing that it had actual or constructive notice of the condition, and that a reasonably sufficient time had lapsed since the cessation of the storm to take protective measures” … . “Under the storm in progress’ rule, a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm” … . McCurdy v KYMA Holdings, LLC, 2013 NY Slip Op 05802, 2nd Dept 9-11-13

 

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Question of Fact Raised About Whether Snow-Removal Contractor Created or Exacerbated the Dangerous Condition

The Second Department affirmed the denial of summary judgment to a snow-removal contractor (SCS) in a slip and fall case.  The plaintiff fell on a mound of snow between the street and a sidewalk. The court explained:

A contractor may be held liable for injuries to a third party where, in undertaking to render services, the contractor entirely displaces the duty of the property owner to maintain the premises in a safe condition, the injured party relies on the contractor’s continued performance under the agreement, or the contractor negligently creates or exacerbates a dangerous condition … . SCS demonstrated its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it … by demonstrating that the injured plaintiff was not a party to the snow and ice removal contract, and that it did not owe a duty to him … . In opposition, however, the plaintiffs raised a triable issue of fact as to whether SCS’s alleged negligence created or exacerbated the hazard which was a proximate cause of the accident… . LaGuarina v Metropolitan Trans Auth, 2013 NY Slip Op 05800, 2nd Dept 9-11-13

 

No Demonstrated Connection Between Stair-Related Code Violations and Injury

In affirming the grant of summary judgment to the defendant in a slip and fall case, the Second Department noted that there was evidence the step risers and tread did not meet code requirements, but there was insufficient evidence connecting the defect with the accident:

The defendants made a prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff was unable to identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted expert evidence that the step risers and treads did not comply with various sections of, inter alia, the New York City Building Code. However, the plaintiff’s assertion that these alleged stairway defects proximately caused her accident is based on sheer speculation …, and is, in fact, contradicted by the record. Humphrey v Merivil, 2013 NY Slip Op 05799, 2nd Dept 9-11-13

 

Proximate Cause Can Not Be Based Upon Speculation; Many Possible Causes

In affirming the grant of summary judgment to the defendant, the Second Department explained that, although proximate cause can be established by circumstantial evidence, it cannot be based on speculation:

“Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident; however, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action”.. . Belousov v Warnock, 2013 NY Slip Op 05787, 2nd Dept 9-11-13

 

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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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