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No Evidence Police Officer Acted in “Reckless Disregard” for Safety

The First Department determined the plaintiff did not raise a question of fact about whether a police officer drove his vehicle (which collided with plaintiff’s) in “reckless disregard for the safety of others,” finding plaintiff’s allegations “conclusory and speculative.:”

Defendants’ proof established that defendant Steve Tompos, a police officer, did not act in “reckless disregard for the safety of others” while operating his vehicle in the wrong direction on a one-way street (see Vehicle and Traffic Law § 1104[e]). Tompos testified that his vehicle’s emergency lights and siren had been activated prior to the accident, and the evidence showed that he reduced his speed before turning onto the subject street and that he veered to his right in an attempt to avoid impact … . We note in particular that Tompos’s partner testified that Tompos reduced the vehicle’s speed to 10 miles per hour as he turned into the street where the accident occurred. Plaintiff’s testimony that Tompos was driving at a “high” rate of speed, which plaintiff was admittedly unable to estimate, is conclusory and speculative .. . We therefore disagree with the dissent’s view that issues of fact preclude summary judgment. Frezzell v City of New York, 2013 NY Slip Op 02700, 8861 116366/07, 1st Dept, 4-23-13

TRAFFIC ACCIDENTS

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“Law of the Case” Does Not Bind Appellate Courts

In a medical malpractice action, plaintiff had moved to amend her complaint to add a cause of action for wrongful death and the motion was denied.  There was a mistrial.  Before the second trial, plaintiff again moved to amend her complaint.  The motion was denied because the first denial was deemed the law of the case.  In determining the motion to amend should have been allowed, the Second Department noted that the law of the case doctrine does not apply to appellate courts:

The doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination …. Accordingly, this Court is free to consider that branch of the plaintiff’s motion which was for leave to amend the complaint on the merits …. Under the circumstances presented here, we conclude that leave to amend the pleading should be permitted.

Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]…). Here, in the aftermath of the court’s granting of a mistrial, Mercy [defendant] failed to allege, much less show, surprise or prejudice resulting from the plaintiff’s delay in asserting the wrongful death cause of action against it … . Moreover, the proposed amended complaint, which sufficiently alleged that Mercy’s negligence caused the decedent to suffer injuries and ultimately death, was neither “palpably insufficient nor patently devoid of merit” … .   Hothan v Mercy Med Ctr, 2013 NY Slip Op 02541, 2011-10562, Index No 14345/06, 2nd Dept, 4-17-13

 

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Question of Fact Raised About Whether School-Wrestler’s Risk of Injury Increased by Condition of Wrestling Mats

The Second Department ruled Supreme Court had properly denied the school’s motion for summary judgment because a question of fact had been raised about whether the way mats had been taped together increased the risk of injury to wrestlers:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting 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”‘” … . “The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon” … . “If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies” … . However, “a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” … . Philippou v Baldwin Union Free Sch Dist, 2012-02566, Index No 790/10, 2nd Dept, 4-17-13

 

Adult Care Facility, in Which Residents Have a High Level of Autonomy, Can Not Be Held Liable for Assault by One Resident Upon Another

In finding that Lakeside, an adult care facility (ACF), was not liable for an assault by a resident, Fierro, upon the plaintiff (also a resident), the Second Department wrote:

…[C]ourts have imposed a duty of care where “there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that [courts] have identified a duty to do so. Thus, [courts] have imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [the] third person whose actions expose plaintiff to harm such as would require [one] defendant to protect the plaintiff from the conduct of others” … .

…Lakeside [presented evidence that its] residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding. Because it is an ACF, Lakeside’s control over Fierro, “and consequent duty to prevent him from harming others, is more limited than in cases involving persons confined to mental institutions” …. Lakeside did not require the issuance of day passes, which would have been indicative of “a certain level of authority and control” over its residents …, who did not “relinquish general autonomy” … .  Malave v Lakeside Manor Homes for Adults, Inc, 2013 NY Slip Op 02547, 2012-00696, Index No 100904/10, 2nd Dept, 4-17-13​

THIRD PARTY ASSAULT

 

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Question of Fact About Whether Emergency Doctrine Excused Police Officer’s Causing a Collision

In finding that a question of fact had been raised about whether a police office, when responding to an emergency call in her vehicle, had exhibited reckless disregard for the safety of others (resulting in a collision), the Second Department wrote:

Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws when they are involved in an emergency operation …. The emergency operation of a police vehicle includes “responding to [a] police call” (Vehicle and Traffic Law § 114-b). A radio call to an officer on patrol by a police dispatcher regarding a 911 complaint falls squarely within the plain meaning of “police call” …. When a police officer engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), such conduct may not form the basis of civil liability to an injured third party unless the officer acts in reckless disregard for the safety of others …. The “reckless disregard” standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow … . * * *…[T]he respondents submitted the deposition testimony of four witnesses, which raised triable issues of fact as to whether the siren and emergency lights on the police officer’s vehicle were activated and whether that vehicle slowed down prior to entering the intersection at which the collision occurred. Miller v Suffolk County Police Dept, 2013 NY Slip Op 02549, 2012-03783, dInex No 5044/06, 2nd Dept, 4-17-13

 

 

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Jury Verdict Finding No Negligence Reversed on Appeal/Article 16 Defenses Re: Negligence of Non-Party Allowed

A mechanic working in the basement of a two-family house left a trap door, which was directly outside the side door of plaintiff’s apartment, open.  Plaintiff fell through the open trap door.  In setting aside the jury verdict finding the mechanic was not negligent, the Second Department wrote:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . In exercising our authority to review the weight of the evidence …, we find that the jury’s verdict was contrary to the weight of the evidence. “Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same circumstances” …. Applying this standard, we conclude that the jury’s determination that the defendant was not negligent was not based on a fair interpretation of the evidence, since a reasonable person should have been aware that leaving the trapdoor open created an unsafe condition …. Accordingly, we reverse the amended judgment, reinstate the complaint, and remit the matter … for a new trial.

The Second Department also made the following findings, pursuant to CPLR article 16, about defenses based upon the liability of the non-party out-of-possession landlord:

…[T]he Supreme Court did not err in denying that branch of the plaintiff’s motion which was to preclude the defendant from offering evidence as to the liability of a nonparty, the out-of-possession landlord, for the purpose of limiting the defendant’s liability for noneconomic damages pursuant to CPLR article 16. Contrary to the plaintiff’s contention, a defendant is not required to plead that defense as an affirmative defense (see CPLR 1601[1]…).

…[T]he Supreme Court properly denied the plaintiff’s motion to dismiss the defendant’s affirmative defense pursuant to CPLR article 16, as the defendant presented evidence demonstrating that a question of fact existed as to the negligence of the nonparty landlord (see CPLR 1603…).  Cooper v Burt’s Reliable, Inc, 2013 NY Slip Op 02529, 2012-00098, Index No 6053/07, 2nd Dept 4-17-13

 

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No Common Law Negligence Cause of Action to Recover for Injuries Caused by Dog, Even Where Dog Owner May Be Negligent

Where the plaintiff was injured when defendant’s dog collided with his bicycle, the First Department determined defendant’s (the dog owner’s) motion for summary judgment should have been granted, despite allegations of negligence on the part of the defendant (there was a dissent):

Plaintiff was injured when, while riding his bicycle, he collided with defendant’s dog. Plaintiff alleges that defendant was negligent because as plaintiff was riding nearby, defendant called for the dog, which was not wearing a leash, to come to her, resulting in the dog’s running into plaintiff’s path of travel.

“New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” …. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal’s vicious propensities …. The term “vicious propensities” includes “the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” …. Here, there is no evidence that defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted ….  Doerr v Goldsmith, 2013 NY Slip Op 02501, 9030, 103840/10, 1st Dept, 4-16-13

 

Condition of Fence Gate “Open and Obvious” Precluding Recovery

Plaintiff was injured when, sitting on the ground, he leaned back against a fence-gate which swung open causing him to fall.  The First Department determined the condition of the fence was “open and obvious” precluding recovery (there was a dissent).  The court wrote:

Although property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware …, they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous … . “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” …Here, defendant … established prima facie that the unlocked gate that allegedly caused plaintiff to injure himself was open and obvious, and was not inherently dangerous. The color photographs in the record show that the gate was “plainly observable and did not pose any danger to someone making reasonable use of his or her senses” … .  Boyd v New York City Hous Auth, 2013 NY Slip Op 02507, 9724, 310500/10, 2nd Dept 4-16-13

 

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Fall After Coverage Ceased Not Covered, Even though Dangerous Condition Alleged to Have Existed Before Termination of Coverage

After the premises was sold it was removed from coverage under a Travelers insurance policy.  Plaintiff slipped and fell on the property ten days after coverage was removed.  Supreme Court determined Travelers was obligated to defend because it was alleged the injury was related to a dangerous condition that existed before the property was sold (when it was insured by Travelers).  In reversing, the Second Department wrote:

Here, the subject insurance policy, read as a whole, clearly and unambiguously provides that the duty to defend and indemnify will attach only to bodily injury caused by an “occurrence” that is covered by the policy and that occurs during the policy period … .Accordingly, Travelers made a prima facie showing of its entitlement to judgment as a matter of law by establishing that the bodily injury for which the plaintiff seeks a defense and indemnification occurred after the premises had been removed from coverage … .Contrary to the plaintiff’s contention, the … allegation that the accident was caused by a dangerous condition that existed on the premises before it was removed from coverage does not obligate Travelers to defend and indemnify it. Since the policy predicates coverage upon the sustaining of bodily injury during the policy period, it is immaterial that the negligent acts which allegedly caused the occurrence took place while the policy covering the premises was still in effect … .  Jericho Atrium Assoc v Travelers Prop Cas Co of Am, 2013 NY Slip Op 03461, 2nd Dept, 5-15-13

SLIP AND FALL

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Late Notice of Settlement of Negligence Action to Workers’ Compensation Carrier Did Not Preclude Court-Approval of Settlement Pursuant to Workers’ Compensation Law

Plaintiff was struck by a car driven by defendant while she was taking a walk during a layover between work assignments for her employer.  She filed for workers’ compensation benefits.  And she sued the driver in a negligence action.  While the workers’ compensation proceeding was progressing plaintiff settled with the driver’s carrier.  Upon notice to the employer’s workers’ compensation carrier, the carrier refused to approve the settlement. Plaintiff then moved for court-approval of the settlement pursuant to the Workers’ Compensation Law.  Supreme Court granted the motion and the Third Department affirmed, noting:

When,  as here, court approval of a  settlement is not sought within three months of the date of settlement, a  plaintiff seeking a nunc pro tunc order must establish the reasonableness of the settlement, the lack of any  fault or neglect in applying for approval and the lack of any prejudice to the carrier … .   These determinations are directed to the discretion of the court … . Lindberg, et al, v Ross, et al, 515373, 3rd Dept 4-11-13

TRAFFIC ACCIDENTS

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