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No “Negligent Supervision” Cause of Action Against School Based on Student Attacking Another Student

In ruling that the defendant school district’s motion for summary judgment in a “negligent supervision” case should have been granted, the Third Department determined the school district could not have reasonably anticipated the attack of one student upon another.  The school personnel had been alerted to the possibility of an impending fight between the two students and had intervened.  The school personnel were assured by the student who ultimately attacked plaintiff’s daughter that she did not intend to fight plaintiff’s daughter.  The Third Department wrote:

…[A] school district will only be held liable for injuries intentionally inflicted by another  student  where  it is established that the dangerous conduct “could reasonably have been anticipated,” i.e., where school authorities had actual or constructive notice of prior similar conduct on the part of the offending student ….  Even where such notice is present and the consequent duty of supervision is breached, the plaintiff must further show that the alleged injury “was a normal or foreseeable consequence of the situation created by the school’s negligence”  … .The adequacy of supervision and the existence of proximate cause  are generally factual issues for a  jury to resolve … .

Regardless of any questions of fact regarding whether enough staff members were present in the hallway to prevent or break up the fight, defendant was entitled to summary judgment because it established that it could not have reasonably anticipated the attack.  Conklin v Saugerties Central School District, 515709, 3rd Dept, 5-30-13

 

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No Negligence Based on Defendant’s Dog Barking [Which Allegedly Caused Plaintiff to Fall from Her Horse as the Horse Broke Into a Run]

Plaintiff was injured when she fell from her horse.  The defendant was jogging behind the horse with her dogs. Plaintiff alleged barking caused the horse to break into a canter or a run.  The Third Department determined Supreme Court should have granted defendant’s motion for summary judgment.  After discussing the principles underlying assumption of the risk in this context and the permissible causes of action based on the behavior of animals, the Third Department wrote:

“The mere act of [walking] . . . in close proximity to an unknown horse, as the complaint alleges, does  not present an  issue of negligence, as a matter of law” …. In this regard, defendant – who had  no  prior experience with horses – was  walking on  a public highway, where  she had  every right to be  (see Vehicle and  Traffic Law  §  1156  [b]).  She slowed down  to evaluate the horses and riders ahead  of her, and, while she did not stop, she was  still 50 yards away when plaintiff and her daughter lost control of their horses. Morever, plaintiffs’ negligence claim also fails because they alleged no facts from which it could be inferred that defendant’s actions, in walking on a public street or otherwise, were the proximate cause of plaintiff’s injuries … . Filer v Adams, 515403, 3rd Dept, 5-30-13

 

Emergency Doctrine Not Applicable to Striking Plaintiff’s Decedent’s Body in Roadway

The Third Department determined summary judgment should not have been granted to the defendant based upon the emergency doctrine.  Defendant struck the decedent’s body which was in the roadway.  Although defendant slowed when she saw the brake lights and flashers on vehicles ahead of her, she continued driving at about 50 miles per hour:

We are not persuaded that these facts demonstrate, as a matter of law, that defendant was confronted with an emergency situation that left her with little time for deliberation or that her reaction was reasonable such that there was nothing she could have done to avoid the accident.  Notably, “it is not uncommon for motorists to encounter debris or other hazards in the roadway” …and, here, by defendant’s own testimony, she had  notice from at least 20  or 30  car lengths away that something  out of the ordinary was  happening  on  the highway ahead  ….   Further, there is also deposition testimony of the front seat passenger in codefendants’ vehicle, which had arrived at the scene and  first struck either decedent or his motorcycle.  This witness testified that, as decedent was  lying in the roadway, other vehicles stopped at the scene without striking him, and at least one other vehicle passed through the scene without incident.  In light of  this testimony,  “a question  arises as to whether defendant should have anticipated and been prepared to deal with the situation confronting [her]” and  whether  her actions were reasonable under the circumstances… . Hallenbeck …v Smith…, 515155, 3rd Dept, 5-30-13

 

 

Res Ipsa Loquitur Proof Requirements Not Met Re: Cause of Fire

A fire apparently started in the vicinity of a gas grill resulting in the destruction of an apartment building.  In affirming summary judgment granted to the defendants, the Third Department noted that an unsigned report from the fire department was properly ignored by the motion court and plaintiff was not entitled to an inference of negligence based on the doctrine of res ipsa loquitur:

…[P]laintiff has not established its entitlement to an inference of negligence pursuant to the doctrine of res ipsa loquitur. To do so, plaintiff was required to demonstrate, among other things, that the fire was one that ordinarily would not have occurred in the absence of defendants’ negligence….   While plaintiff need not have eliminated every alternative explanation for the event, it was required to demonstrate that the probability of other causes was so reduced that defendants’ negligence was more likely than not to have caused the injury….  In view of plaintiff’s failure to proffer any admissible evidence – or, indeed, any evidence whatsoever based upon more than pure speculation – that negligence was a factor in the cause of the fire, plaintiff has not met its burden of demonstrating that res ipsa loquitor applies … .  92 Court Street…. v Monnet, et al, 514458, 3rd Dept, 5-30-13

 

 

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Emergency Doctrine Did Not Apply to Police Officer’s Striking Plaintiff with Patrol Car​

In reversing Supreme Court, the Second Department determined the emergency doctrine did not apply to a police officer’s striking the plaintiff with his patrol car and ordinary negligence principles applied:

In the instant case, Officer DeMarco acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct – the failure to see that which was there to be seen – was not conduct specified in Vehicle and Traffic Law § 1104(b) as exempt from the rules of the road …. Accordingly, his conduct was governed by the principles of ordinary negligence …. In any event, since Officer DeMarco acknowledged at his deposition that, at the time he struck the plaintiff, he was “not aware of any emergency situation that needed to be addressed,” the common-law emergency doctrine is not applicable to this case. Accordingly, the fifth affirmative defense, which is based upon Vehicle and Traffic Law § 1104, and the sixth affirmative defense, which is based upon the common-law emergency doctrine, must be dismissed.

Under the principles of ordinary negligence, Officer DeMarco’s failure to see what was there to be seen established the plaintiff’s entitlement to judgment as a matter of law on the issue of liability… . Starkman v City of Long Beach, 2013 NY Slip Op 03829, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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Injury Not Connected to Accident; Motion to Set Aside Should Have Been Granted

In reversing Supreme Court and finding the motion to set aside the verdict should have been granted, the court determined there was no valid line of reasoning that led to the conclusion plaintiff’s serious injury was related to the car accident at issue:

Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff’s alleged serious injury was causally related to the subject automobile accident. Given the evidence of the plaintiff’s previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff’s expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff’s injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury. McDonald v Kohanfars, 2013 NY Slip Op 03821, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

Failure to Eliminate Comparative Negligence Precluded Summary Judgment to Plaintiff In Car-Accident Action

In reversing the grant of summary judgment to the defendant in a car accident case, the Second Department noted there can be more than one proximate cause of an accident and defendant failed to demonstrate freedom from comparative fault:

“There can be more than one proximate cause of an accident”…. A driver who has the right-of-way may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in an intersection…. Indeed, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative…. Here, the transcripts of the deposition testimony of the plaintiff and the defendant, which were submitted in support of the defendant’s motion, raised a triable issue of fact as to what actions the defendant took in order to avoid the collision. Therefore, the defendant failed to establish her prima facie entitlement to judgment as a matter of law … .  Jones v Vialva-Duke, 2013 NY Slip Op 03816, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

Question of Fact Raised—Tennis Player Injured Stepping on Plastic Bottle at Edge of Court​

In playing tennis on defendant’s court, plaintiff, when back-pedaling to reach the ball, was injured when he stepped on a plastic water bottle which was behind a curtain separating the court from an adjacent wall.  In reversing Supreme Court’s grant of summary judgment to the defendant [Lifeplex], the Second Department determined Lifeplex had not demonstrated (1) it did not create the defective condition, (2) it did not have constructive notice of the condition, (3) plaintiff was injured in the playing area, and (4) whether the condition was concealed:

Here, Lifeplex failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff’s injury was within the playing area of the tennis court, and whether the condition was concealed. Thus, Lifeplex failed to make a prima facie showing that the plaintiff assumed a risk inherent in the sport of tennis ….  Moreover, in moving for summary judgment dismissing the complaint, Lifeplex had the initial burden of establishing “that it neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident”…. . “To meet its initial burden on the issue of . . . constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell”…. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice… .  Herman v Lifeplex, LLC, 2013 NY slip Op 03815, 2nd Dept, 5-29-13

ASSUMPTION OF THE RISK

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Town Failed to Demonstrate It Conducted a Sufficient Search for Written Notice of Defect in Slip and Fall Case

The Second Department determined a slip and fall case could go ahead because the town failed to submit sufficient proof in its summary judgment motion that town records were searched for the notice:

Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it had no prior written notice of the alleged defect in the parking lot…. In support of its motion, the defendant submitted the deposition testimony of its deputy director of the Department of General Services and an affidavit from its deputy comptroller. However, neither of those individuals averred that they had specifically searched the records maintained by the Town Clerk and the Town Superintendent of Highways to determine whether the defendant had prior written notice of the defect at issue. Accordingly, the burden never shifted to the plaintiff to raise a triable issue of fact, and this Court need not review the sufficiency of the plaintiff’s opposition papers ….  Betz v Town of Huntington, 2013 NY Slip Op 03809, 2nd Dept, 5-29-13

 

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Submission of Affidavit of Merit in Reply Improper​

In reversing the vacation of the dismissal of a medical malpractice action, the Second Department noted that it was improper to submit an affidavit of merit from a medical expert in reply papers:

The assertion of the plaintiff’s counsel that he incorrectly calendared the date on which the note of issue was due amounted to a reasonable excuse of law office failure…. However, the plaintiff failed to provide in her initial moving papers an affidavit of merit from a medical expert competent to attest to the meritorious nature of the cause of action alleging medical malpractice…. It was improper for the plaintiff to submit an affidavit of merit from a medical expert for the first time in her reply papers….  King v Dobriner, 2013 NY Slip Op 03817, 2nd Dept., 5-29-13

 

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