You are here: / Negligence
,

“Open and Obvious” Nature of Defect Does Not Negate Duty to Keep Premises Safe.

Plaintiff brought a Labor Law and common law negligence action based upon the allegation that a 1 1/2 inch depression in a marble step at the Buffalo City Hall caused him to slip.  At the time of the accident, plaintiff was employed by a subcontractor which had been hired by defendant company.  The defendant company claimed on appeal that its duty to maintain the premises in a safe condition was obviated by the open and obvious defect in the stair.  The Fourth Department noted that the fact that the defect was “open and obvious” speaks only to plaintiff’s comparative negligence, and does not negate the defendant’s duty to keep the premises reasonably safe.  The Fourth Department went on to hold that the defendant company “failed to establish as a matter of law that the hazard posed by the stair was open and obvious and that they had no duty to warn plaintiff of that tripping hazard.”  Landahl v City of Buffalo and U & S Services, Inc., 1333, CA 12-01208 Fourth Dept. 2-1-13

 

, , ,

Single Policy Limit Held to Apply to Successive Tenants in Lead-Paint-Tainted Apartment.

In a full-fledged opinion by Justice Smith, the Fourth Department discussed the liability-limits of an insurance carrier for injuries caused to children by lead paint in the insured apartment.  The policy, which had a $500,000 limit, included the following sentence:  “All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.”  Children in one family who lived in the apartment suffered injury from lead paint and the carrier paid out $350,000.  Subsequently children in another family who moved into the same apartment suffered injury from lead paint.  The question before the Court was whether the liability to the second family was capped at $150,000 because the total liability of the carrier could not exceed $500,000, or whether the injury to the second family triggered another $500,000 in policy coverage.  The Fourth Department determined the carrier was liable for a total of $500,000 for the injuries to both families and the second family could recover no more than $150,000.   Nesmith, et al v Allstate Insurance Company, 1252, CA 12-00182 Fourth Dept. 2-1-13

 

Defendant Did Not Demonstrate Lack of Constructive Notice in Slip and Fall Case—Slip and Fall Cause of Action Should Not Have Been Dismissed.

In a slip and fall involving snow and ice, the defendant, in seeking summary judgment, did not demonstrate a lack of constructive notice by offering “some evidence as to when the area in question was last cleaned or inspected relative to the time when plaintiff fell….”.  Specifically, the defendant “offered no evidence as to what, if any, cleaning procedures or inspection procedures were performed from December 9 … when the parking lots … were plowed, until the time of the injured plaintiff’s accident on December 12 …”.  Without such evidence, the Second Department held, the defendant did not meet its prima facie burden and the cause of action should not have been dismissed by the trial court.  Feola v City of New York, et al, 2011-06933, Index No. 101006/07, Second Dept. 1-23-13

 

,

Damages for Worry About Baby’s Health Not Recognized in New York.

The Second Department held that plaintiff could not recover for purely emotional damages.  The complaint alleged plaintiff’s doctor knew plaintiff was pregnant, but allowed her to undergo a CT-scan without informing her of the pregnancy. Plaintiff sought damages for “the emotional distress arising from her fear that the CT-scan might have harmed her unborn child.”  The Second Department determined defendant’s motion to dismiss the complaint should have been granted because “[n]o such claim is recognized under New York law…”. Nadal v Jaramillo, 2012-04006, Index No. 30748/08 Second Dept.1-23-13

 

,

Late Notice of Claim Allowed.

The Second Department allowed plaintiff to serve a late notice of claim against the defendant School District because: (1) the School District was made aware of the facts constituting the claim within the 90-day statutory period (shown by a medical claim completed by the school principal); (2) there was a reasonable excuse for the delay (mother was unaware of the severity of the child’s injury and had relied on the School District’s prior willingness to pay for the child’s medical treatment); (3) there was no prejudice to the School District’s ability to defend the action.  In the Matter of Funkhouser v Middle Country Central School District, et al, 2011-08142, Index No. 2333/11 Second Dept. 1-9-13.

 

, ,

Assault in Medical Facility, Spoliation of Evidence.

Plaintiff, a patient at defendant medical center, was assaulted by another patient.  Shortly after the incident plaintiff’s attorney sent a letter to the medical center asking that it preserve all records of the incident, including videotape.  The letter was apparently never forwarded to the defendant’s risk management department and any videotape of the incident was overwritten in the ordinary course of business.  The trial court, pursuant to CPLR 3126, sanctioned the defendant by striking the defendant’s answer “to the extent of precluding the defendant from introducing evidence at trial that the alleged perpetrator was being supervised by its employees at the time of the incident.”  The Second Department discussed the sanctions available for spoliation of evidence and held that, because the plaintiff was not prevented from establishing her case by the spoliation, the imposed sanction was too harsh.  The appropriate sanction was an adverse inference charge to the jury.  Jennings v Orange Regional Medical Center, 2012-00209, Index No. 5601/10 Second Dept. 1-9-13

 

, , ,

Medical Malpractice Against Hospital, No Need to Name Individual Doctors.

In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital.  Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13

 

,

Primary Assumption of Risk Jury Charge Required Reversal.

The Second Department reversed the trial court’s dismissal of a personal injury complaint after a “no cause” verdict.  The plaintiff’s daughter was a 14-year-old pitcher on a school softball team.  During practice, she was instructed to pitch from a position closer to the plate than the pitching mound.  A so-called “L-screen,” a protective pitching screen, was used.  But the screen was not properly supported and kept falling down. At some point, the pitcher was instructed by the coach to keep pitching even though the screen was down.  The pitcher was then struck and injured by a “line drive” hit by the batter.  The trial court submitted the “primary assumption of risk” charge to the jury which states that a participant in a sport consents to the usual risks associated with the sport.  The Second Department ruled that whether to apply the primary assumption of risk theory is an issue of law for the court, not the jury, and therefore the jury should not have been instructed on it. There is a substantive discussion of the doctrine of primary assumption of risk and the reasons the doctrine did not apply to the facts of the case.  The Second Department went on to say that the evidence raised a question of fact about whether the pitcher impliedly assumed the risk of pitching in the absence of the screen.  Therefore, at the new trial, the jury should be instructed on the implied assumption of risk, as well as comparative negligence.  Weinberger v Solomon Schechter School of Westchester, 2010-05992, 2010-10382, Index No. 10087/08 Second Dept. 1-9-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy