The Fourth Department affirmed the Court of Claims’ determination that a 21/2 inch drop off in the shoulder of a road was not the proximate cause of a driver’s losing control of her vehicle. The doctrine of “qualified immunity” in connection with road defects is explained. Marrow… v State…, CA 12-00974, 241, 4th Dept, 4-26-13
TRAFFIC ACCIDENTS
Plaintiff had signed a release of liability in connection with a one-hour skydiving course. Before the course could be given, the plane crashed and plaintiff was injured. In moving to dismiss the complaint, the defendants argued that General Obligations Law 5-326, which renders releases issued by “places of recreation” void, did not apply. The motion court denied the motion to dismiss and the Fourth Department affirmed:
Defendants assert that section 5-326 does not apply here because [defendant] is an instructional facility, rather than a recreational facility. Where a facility is “used for purely instructional purposes,” section 5-326 is inapplicable even if the instruction that is provided relates to an activity that is recreational in nature … . “In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” …. On a motion to dismiss pursuant to CPLR 3211, a court “may . . . consider affidavits and other evidentiary material to ‘establish conclusively that plaintiff has no cause of action’ ” … We conclude that [defendant’s] facility is not used purely for instructional purposes based upon our review of [defendant’s] certificate of incorporation, including the statement of purpose contained therein; the services for which plaintiff paid a fee, i.e., whether she paid for a course of instruction or for use of the facilities; as well as the other evidence submitted by defendants. Thus, defendants have failed to establish as a matter of law that General Obligations Law § 5-326 does not apply here … and have failed to establish conclusively that plaintiff has no cause of action. Tiede v Frontier Skydivers, Inc, CA 12-01861, 216, 4th Dept, 4-26-13
In reversing the motion court and granting summary judgment to defendant car dealership, the Fourth Department (over a dissent) determined that defendant dealership was not the owner of the vehicle involved in the accident, and therefore could not be held vicariously liable under Vehicle and Traffic Law 388. Defendant’s employee (the daughter of the owner) agreed to lend her personal car to one Leederman while Leederman’s vehicle was being fixed at the dealership. All of defendant’s “loaner cars” were in use and the dealership’s owner asked his daughter to lend her car to Leederman. Leederman, in turn, let defendant Trummer use the car. Trummer was driving when the accident occurred. The Fourth Department wrote:
Pursuant to Vehicle and Traffic Law § 388, an owner of a motor vehicle is vicariously liable for the negligent use or operation of such vehicle by anyone operating the vehicle with the owner’s express or implied permission (see § 388 [1] …).The term “owner” is defined as “[a] person, other than a lien holder, having the property in or title to a vehicle . . . The term includes a person entitled to the use and possession of a vehicle . . . subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle . . . having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days” (§ 128; see § 388 [3]).
We agree with defendant that it established as a matter of law that it was not the owner of the vehicle involved in the motor vehicle accident at issue, and that plaintiffs failed to raise a triable issue of fact with respect to ownership of that vehicle. Monette v Trummer, et al, CA 12-01274, 79, 4th Dept, 4-26-13
TRAFFIC ACCIDENTS
Plaintiff was standing on a barrel performing work for his employer. In reaching for a tool he grabbed onto some bricks on a column. The bricks came loose and plaintiff lost his balance and fell. Plaintiff sued the parties responsible for installing the bricks six years before (pursuant to a contract with the employer). In affirming summary judgment to the defendants, the Fourth Department wrote:
Here, defendants established as a matter of law that they did not owe any duty to plaintiff, and plaintiff failed to raise a triable issue of fact. Although defendants had contractual obligations with respect to the construction of the project for plaintiff’s employer, as a general rule “a contractual obligation, standing alone, will . . . not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract …. There is an exception to that general rule, however, “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” …, thereby “creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk” …. Contrary to plaintiff’s contention, the instrument of harm doctrine does not apply to the facts of this case, and thus there was no duty of care running from defendants to plaintiff based on that doctrine …. Spaulding v Loomis Masonry, Inc. et al, CA 12-01395, 32, 4th Dept, 4-26-13
The First Department reversed Supreme Court’s denial of summary judgment and held that the accident was unforeseeable as a matter of law. The plaintiff fell off a “setback roof” which was accessible only by climbing through the window of plaintiff’s friend’s apartment:
An accident is unforeseeable as a matter of law where the conduct or chain of events was so extraordinary that the defendant’s duty did not extend to preventing it … . Here, given the nature and location of the setback, it was unforeseeable that individuals would choose to access it, and thus defendant had no duty to guard against such an occurrence … . Powers v 32 E 31 LLC, 2013 NY Slip Op 02846, 1st Dept, 4-25-13
Plaintiff’s car was side-swiped by defendant’s van when the van was in a merging lane called a taper. The taper was 100 feet shorter than required. In affirming summary judgment to the defendants responsible for constructing the taper, the First Department determined the van was the sole proximate cause of the accident:
The Supreme Court properly found that the alleged negligence of the DOE van’s driver was a proximate cause of the accident. Here, as the van was stopped next to plaintiff’s vehicle, the length of the taper, created by defendants Tully and Verizon, was entirely unrelated to the occurrence of the accident. As noted, the accident was caused by the alleged improper operation of the DOE vehicle. There is no evidence that the van was unable to safely merge, instead of merely trying to get to the front of the line of traffic moving through the construction zone. A jury would thus be required to speculate that the taper was a proximate cause of the accident. As a result, even assuming the taper in this case did not comply with …standards, and that it may have furnished the condition or occasion for the occurrence, it was not a proximate cause of it … . Collins v City of New York, 2013 NY Slip Op 02816, 1st Dept, 4-25-13
TRAFFIC ACCIDENTS
In a personal injury action, the fact that consolidation of two actions arising from the same accident will result in the jury learning of the existence of insurance did not warrant the denial of the motion to consolidate. The Second Department wrote:
The trial court has broad discretion in determining whether to order consolidation … . The interests of justice and judicial economy are better served by consolidation in those cases where the actions share material questions of law or fact … . A motion to consolidate should be granted absent a showing of prejudice to a substantial right by a party opposing the motion .. . Here, the appellants principally argued that they would be prejudiced if the two actions are tried before the same jury since it will bring to the jury’s attention the existence of insurance in Action No. 1 …. However, even assuming that under the circumstances of this case, the appellants would be prejudiced by consolidation, any such prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue … . Furthermore, the possibility of such prejudice to the appellants can be mitigated by appropriate jury instructions. Hanover Ins Group v Mezansky, 2013 NY Slip Op 02713, 2nd Dept, 4-24-13
TRAFFIC ACCIDENTS, PEDESTRIANS
In affirming the dismissal of a personal injury complaint the Second Department noted that defendant store-owners were “not required to cover all of [their] floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … . Valentin v Shoprite of Chester, 2013 NY Slip Op 02739, 2nd Dept, 4-24-13
SLIP AND FALL
The Second Department reversed the trial court’s deeming a late notice of claim as timely served nunc pro tunc. The claim was against the New York Health and Hospitals Corporation (HHC) which is not the same as the City of New York for purposes of a notice of claim. The Second Department wrote:
The Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge of the facts constituting the claim within 90 days after it arose or “within a reasonable time thereafter” (General Municipal Law s 50-e[5]). The fact that a police accident report was prepared by the New York City Police Department did not constitute notice to the HHC of the essential facts constituting the claim … . * * *Moreover, the plaintiff’s mistake as to the identity of the public corporation against which her claim should be asserted was not excusable. … Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHC in its defense on the merits. The plaintiff did not serve a notice of claim upon the HHC until eight months after the 90-day period expired and then did not move for two more months to have that late notice of claim deemed timely … . Platt v New York City Health & Hosps Corp, 2013 NY Slip Op 02733, 2nd Dept, 4-24-13
In affirming the grant of leave to file a late notice of claim in the absence of a reasonable excuse, the Second Department wrote:
Here, the Fire Island Union Free School District (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose …. Immediately after the petitioner allegedly was injured in an accident at a school in the District, the petitioner told the school’s custodian how the accident occurred, a District employee called emergency medical services, and the petitioner was transported to a hospital. An incident form was prepared by the District which indicated the time and place of the accident and the petitioner’s injuries, and the petitioner’s accident was discussed at a construction meeting attended by the school’s superintendent. Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice …. The District’s conclusory assertions of prejudice, based solely on the petitioner’s delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing …
While the petitioner’s excuses for his failure to serve a timely notice of claim were not reasonable …, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and absence of prejudice …. Matter of Rodriquez v Woodhull Sch, 2013 NY Slip Op 02754, 2nd Dept, 4-24-13
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