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1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

The Third Department, in a decision by Justice Garry, reversed Supreme Court’s dismissal of a 1983 action against employees of the Department of Corrections and Community Supervision challenging a urinalysis report:

Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be commenced in the Court of Claims; however, it has been established that this provision may not be applied to bar actions brought pursuant to 42 USC § 1983 … . Carrington v Moore, 513818, 3rd Dept 3-28-13

 

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Child Care Agency Could Be Found Negligent for Failure to Remove Child from Foster Parents’ Home

In a full-fledged opinion by Justice Acosta, the First Department reversed the trial court’s dismissal of a complaint against a child care agency which places children in foster homes.  A child the defendant placed allegedly started a fire in which members of the foster family were either killed or severely injured.  The First Department held that the child care agency, although it did not have a duty to control the child when he was in the foster family’s physical custody, had a duty to remove the child from the foster home upon notice of his propensity for setting fires:

In general, a defendant will not be liable for the conduct of third persons who cause harm to others … . However, the duty to control a third person’s conduct may arise when the defendant has authority to do so, and because of either the relationship between the defendant and the third person or the relation between the defendant and the plaintiff … . An example is the parent-child relationship … .

Thus, a child care agency, acting in loco parentis, has a duty to exercise reasonable care to prevent foster children under its supervision and control from harming others … .  Wynn, as Administratrix … v Little Flower Children’s Services, 2013 NY Slip Op 02156, 15276/95, 9200, 1st Dept 3-28-13

 

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“Professional” Standard of Care Can Be Required Based Solely on Nature of Services Provided

The First Department noted that a “professional” standard of care could be required of a party solely by virtue of the nature of services rendered:

The court properly found that Impact had a professional duty independent of the parties’ agreements. Although Impact, an environmental consultant, was not subject to licensing requirements, public policy requires that it should be held to a “professional” standard of care, given the nature of its services … . Indeed, “[p]rofessionals . . . may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties” … .  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Dept 3-28-13

 

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Assisting Resident Can Not Be Sued for Malpractice

In dismissing a medical malpractice complaint against a resident who assisted another doctor during surgery, the Second Department wrote:

A resident or fellow who is supervised by a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice unless the resident or fellow knows that the supervising doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, or the resident or fellow commits an independent act that constitutes a departure from accepted medical practice …. Poter v Adams, 2014 NY Slip Op 02061, 2012-03922, Index No 27069/09, 2nd Dept 3-27-13

 

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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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