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Circumstances Under Which Contractor Can Be Held Liable for Slip on Snow and Ice 

In this slip and fall case, the Second Department explained the circumstances under which a snow-and-ice-removal contractor can be held liable for injuries to third parties:

Generally, “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, there are three recognized exceptions: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (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” … .  Santos v Deanco Servs, Inc, 2013 NY Slip Op 02065, 2012-02786, Index No 5927/09, 2nd Dept 3-27-13

 

 

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Assault by Another Student—Question Whether School District Had Notice of Dangerous Conduct Precluded Summary Judgment to Plaintiff

In reversing the trial court’s grant of summary judgment to the plaintiff on the issue of liability, the Second Department determined there was a question of fact concerning whether the defendant school district adequately supervised students (the plaintiff was assaulted by another student):

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Braunstein v Half Hollow Hills Cent. Sch. Dist., 2013 NY Slip Op 02039, 2012-04442, Inex No 23108/09, 2nd Dept. 3-27-13

THIRD PARTY ASSAULT

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Experts’ Failure to Address Proximate Cause Precluded Summary Judgment

The defendants in a medical malpractice action were granted summary judgment finding that any departures from the standard of care were not the proximate cause of plaintiff’s injuries.  The Court of Appeals reversed because the defendants’ experts did not address proximate cause in their affidavits in support of the summary judgment motion.  The defendants therefore did not meet their burden on the issue of proximate cause. Orsi, et al, v Haralabatos, et al, 50, CtApp 3-26-13

 

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Lawsuit Prohibited by Unambiguous Release

In reversing the trial court, the Second Department determined a medical malpractice complaint should have been dismissed based on the unambiguous language of a release signed by the plaintiff:

The action should have been dismissed as against defendants-appellants based on the unambiguous language in the release, which clearly intended to put an end to the action …. Given the unambiguous terms of the release, the motion court should not have considered extrinsic evidence… . Bernard v Sayegh, 2013 NY Slip Op 02027, 8619, 111756/06, 1st Dept. 3-26-13

 

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City Deemed Immune from Suit—Governmental and Proprietary Functions Explained 

Plaintiff was injured when a Department of Transportation (DOT) worker, who was setting up cones on the roadway in preparation for road repair, allowed plaintiff to ride through the work area on her bicycle.  The plaintiff was injured when she rode over a pothole. The First Department determined the defendant City was immune from suit because the DOT worker was performing a discretionary/governmental, not a proprietary function, when he allowed the plaintiff to ride through.  The decision includes detailed discussion of discretionary/governmental versus proprietary functions.  Wittorf v City of New York, 2013 NY Slip Op 02014, 8358, 103233/06, 1st Dept 3-26-13

 

Open and Obvious Nature of Condition Required Dismissal of Complaint

In reversing the denial of defendant’s motion to dismiss the complaint, the First Department determined the open and obvious nature of the danger precluded the lawsuit:

Dismissal of the complaint as against the City is warranted inthis action where the 14-year-old decedent drowned after she and friends scaled a fence, ignored signs prohibiting swimming, and entered into the Bronx River, which runs through River Park, even though she did not know how to swim. Although the City has a duty to maintain its property in a reasonably safe condition, in view of all the circumstances …, “the duty to take reasonable precautions does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” … .  Torres v City of New York, 2013 NY Slip Op 02019, 9607, 303086/11, 1st Dept 3-26-13

 

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Falling Off X-Ray Table Raised Question of Fact

The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays:

Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff[’s decedent] was not injured thereby’ ” … . With respect to decedent’s fall from the X ray table, defendant failed to present competent proof that it did not deviate from the applicable standard of care when the technician left the room to develop the X rays that had just been taken, with decedent still on the table.  Welsh, et al, v St Elizabeth Medical Center, 332, CA 12-01576, 4th Dept. 3-22-12

 

 

Stuck Door Could Constitute a “Dangerous Condition”

In finding that a stuck door could constitute a “dangerous condition,” the Fourth Department wrote:

Plaintiff commenced this action seeking damages for injuries he allegedly sustained when, in the course of his employment, he was delivering a package to defendant’s property. He attempted to open a door but, according to plaintiff, the door would not open because it was stuck and defendant had prior notice that “the door stuck on occasion.” Defendant moved for summary judgment dismissing the complaint on the sole ground that the “condition alleged by Plaintiff, [i.e.], the door that would not open on the date of the accident, is not an inherently dangerous condition giving rise to a duty in tort.” We conclude that Supreme Court erred in granting the motion.

As the Court of Appeals has written, the issue “whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally [one] of fact for the jury” … . With respect to summary judgment motions, it is well established that “[a] motion for summary judgment must be denied ‘if there is any significant doubt as to the existence of a triable issue [of fact], or if there is even arguably such an issue’ . . . Moreover, summary judgment is seldom appropriate in a negligence action” … . Bielicki v Excel Industries, Inc., 335, CA 12-01494, 4th Dept. 3-22-13

 

 

 

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Question of Fact Raised About Owner’s Knowledge of Presence of Lead Paint

The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the apartment had constructive notice of the presence of lead paint:

The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had constructive notice of a dangerous lead paint condition on his property. For instance, Weston alternately testified that there “could have been” peeling or chipping paint, that he did not recall whether there was peeling or chipping paint, and that he had “no problem” with peeling or chipping paint. [Defendant] similarly contradicted himself as to whether he knew that a child lived in the apartment.  Regarding the other [Chapman v Silber (97 NY2d 9)] factors, [defendant] testified that he believed that he had a right to re-enter the apartment to make repairs, and he admitted that he knew by 1990 that lead was bad for children and that it could be found in houses like his. In short, [defendant’s] testimony … raised triable issues of fact regarding constructive notice … .  Watson v Priore, et al, 293, CA 12-00977, 4th Dept. 3-22-13

 

 

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Cause of Action Based on the Failure to Warn Mechanic About Remote Car Starter Survived Summary Judgment

The denial of summary judgment was affirmed by the Fourth Department.  The plaintiff, a mechanic, was injured when a remote car starter started the car he was working on, dragging and running over him.  The Court determined plaintiff had alleged sufficient facts to support the theory that the defendants (the owners/users of the car in question) had a duty to warn the plaintiff the car was equipped with a remote starter which could start the car when it was in gear and the clutch was not depressed:

Contrary to the contention of defendants, we conclude that Supreme Court properly denied their motion for summary judgment dismissing the complaint. “Under general tort rules, a person may be negligent because he or she fails to warn another of known dangers or, in some cases, of those dangers [of] which he [or she] had reason to know”… .  Chambers v Evans, et al. 291, CA 12-01517, 4th Dept. 3-22-13

 

 

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