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Prior Written Notice of Defect Not Needed Where It Is Alleged Municipality Created Dangerous Condition.

In finding the plaintiff had raised a question of fact about whether the municipality affirmatively created a dangerous condition (a curved section of fence alongside a roadway), the Second Department wrote:

Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition absent proof of prior written notice or an exception thereto … . “The Court of Appeals has recognized two exceptions to this rule, namely, where the locality created the defect or hazard through an affirmative act of negligence [and] where a “special use” confers a special benefit upon the locality'” … .

The affirmative creation exception “[is] limited to work by the City that immediately results in the existence of a dangerous condition” … . Thus, while the eventual emergence of a dangerous condition as a result of wear and tear and environmental factors does not constitute an affirmative act of negligence …, where, as here, the allegedly dangerous condition would have been immediately apparent, the affirmative creation exception applies … . Laracuente v City of New York, 2013 NY Slip Op 01810, 2011-09475, Ind No 17543/06, Second Dept. 3-20-13

 

 

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No Notice of Defect Needed Where Municipality Affirmatively Created It.

The Second Department reversed the grant of summary judgment to the defendant village because the village did not rule out the possibility that the sidewalk defect had been affirmatively created by negligent design and construction, an exception to the requirement that the village have prior notice of a sidewalk defect before a personal injury suit will be allowed:

Here, the defendant established that it did not receive prior written notice of the alleged dangerous condition. Nonetheless, it failed to demonstrate its prima facie entitlement to judgment as a matter of law. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . Here, the plaintiff’s pleadings alleged that the defendant affirmatively created the dangerous condition that caused the accident through negligence in the design and construction of the sidewalk … . Under these circumstances, the defendant was required to eliminate all triable issues of fact as to whether it affirmatively created the alleged dangerous condition through negligent design and construction to sustain its prima facie burden … . The defendant failed to do so, and therefore, its motion for summary judgment should have been denied without regard to the sufficiency of the plaintiff’s opposition papers …. Carlucci v Village of Scarsdale, 2013 NY Slip Op 01798, 2012-09179, Second Dept. 3-20-13

slip and fall

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Expert Affidavit Did Not Raise a Question of Fact 

In affirming the grant of summary judgment to the defendant hospital, the Second Department explained the flaws in the plaintiffs’ expert’s affidavit, finding the expert did not lay a foundation for an opinion outside the expert’s area of specialization and made “speculative” and “conclusory” assertions:

In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. When, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiffs’ expert failed to lay the requisite foundation. Moreover, even assuming the requisite foundation had been laid, the expert’s assertions that a diagnosis of the fracture at the hospital would have led to adequate immobilization, without specifying what adequate immobilization would have entailed, and may have resulted in “normal healing,” are conclusory and speculative, and thus, insufficient to raise a triable issue of fact as to causation … . Shashi v Nassau Communities Hosp., 2013 NY Sip Op 01818, 2011-04552, Index No 15636/08, 2nd Dept. 3-20-13

 

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“Emergency Exception” to Rule Hospital Is Not Vicariously Liable for Negligence of Non-Employee Physicians Did Not Apply

he Second Department determined the hospital’s (Winthrop-University Hospital’s) motion for summary judgment dismissing the cause of action alleging it was vicariously liable for the actions of a non-employee physician (Raio) should have been granted.  The hospital demonstrated that the “emergency room exception” to vicarious liability for the negligence of a non-employee physician did not apply:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . “However, an exception to the general rule exists when a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … .

Here, Winthrop-University Hospital made a prima facie showing of its entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it was vicariously liable for the alleged malpractice of Raio by submitting evidence that Raio was not an employee of Winthrop-University Hospital, but rather, an attending physician at the hospital …. Furthermore, Winthrop-University Hospital made a prima facie showing that the emergency room exception was inapplicable, by demonstrating that the decedent was referred to Raio’s care by his own internist … .  Giambona v Hines, et al, 2013, NY Slip Op 01803, 2011-05943, Ind No 7819/07, 2nd Dept. 3-20-13

 

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Relation Back Doctrine Allowed Adding Doctor as Defendant in Medical Malpractice Action after Expiration of Statute of Limitations.

The relation back doctrine was applied in a medical malpractice action to allow the addition of a doctor as a defendant after the statute of limitations expired. The doctrine applies where “(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits, and (3) the additional party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well.”  The fact that the omission of the party may have been “negligent,” as opposed to a “mistake,” did not prevent the application of the doctrine. Kirk, et al, v University Ob-Gyn Associates, Inc., et al, 159, CA 12-01405, Fourth Dept. 3-15-13

 

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Owner/Officer of Company Can Be Personally Liable for Toxic Emissions Released by Company.

Plaintiffs brought an action for personal injuries and property damage allegedly caused by toxic emissions released by defendant Tonawanda Coke Corporation.  An owner and officer of Tonawanda Coke (Crane) moved to dismiss the cause of action suing him in an individual capacity.  In affirming the denial of that motion, the Fourth Department wrote:

Although “[a] corporate officer is not held liable for the negligence of the corporation merely because of his official relationship[,]” that officer will be held liable if it is established “that the officer was a participant in the wrongful conduct” … .Plaintiffs alleged in the first amended complaint that Crane was or should have been aware of the relevant environmental regulations, was ultimately responsible for reporting benzene emissions to the Environmental Protection Agency, and personally supervised and exercised control over Tonawanda Coke’s operations … .Thus, plaintiffs have alleged that Crane actively participated in the wrongful conduct by approving the policies that allegedly caused the environmental contamination … .   Abbot v Tonawanda Coke Corporation, et al, 155, CA 12-01384, Fourth Dept. 3-15-13

 

Absent Landowners Not Liable for Injuries at Party Hosted on their Property.

The Fourth Department reversed the trial court and granted a summary judgment motion brought by the owners of a golf course.  At a party that was not hosted by the landowners (and at which the landowners were not present), plaintiff was injured by another party-goer.  In determining the landowners had demonstrated they were not liable, the Fourth Department explained:

In general, “[landowners] are under a common-law duty to ‘control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control’ ” …Thus, landowners who are not present when a guest engages in harmful conduct and who have neither notice of nor control over such conduct are under no duty to protect others from such conduct …, unless the nature of the relationship between the landowners and the party host is such that the landowners, even if absent, are deemed to share in the duty imposed upon the host …. Pettit v Green, et al, 80, CA 12-01293, Fourth Dept. 3-15-13

third party assault

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Failure to Instruct Jury that Medical Practice Guidelines Did Not Set Forth the Applicable Standard of Care Required Reversal

The case turned on whether the defendant failed to recommend and perform a timely colonoscopy (the plaintiff, who had a history of colon polyps, contracted colon cancer).  At trial the defendant doctor was allowed to introduce in evidence guidelines published by the American Gastroenterological Association which included the recommended frequency of colonoscopies.  The plaintiff objected and requested a limiting instruction informing the jury that the guidelines “did not set forth the standards of care with regard to the diagnosis and treatment of plaintiff’s colon cancer.” The trial court gave a cursory limiting instruction at the time the guidelines were admitted, and told the jury another instruction would be forthcoming.  The trial court subsequently declined to give any further instructions on the issue.  In reversing the judgment for the defendant and ordering a new trial, the First Department wrote:

The court erred in failing to give the instruction that plaintiff requested. Although the trial court’s instruction informed the jury that it was to make its determination based on “all the evidence,” this instruction was not sufficient to guide the jury on how to apply the Guidelines to the facts before it. The court’s instruction as rendered failed to make clear to the jury that the Guidelines were simply recommendations regarding treatment, and thus, that compliance with the Guidelines did not, in and of itself, constitute good and accepted medical practice … . The trial court should have given the jury an instruction specifically stating that the Guidelines were not the same as standards of care and that the jury was to make its determination based on the particular circumstances of the case, not on the Guidelines alone. Introducing the Guidelines into evidence without the appropriate limiting instruction allowed the jury to infer that a physician need not exercise professional judgment with regard to individual patients, but could simply abide by the recommendations promulgated in the Guidelines.  Hall v Kiyici, 2013 NY Slip Op 01616, 9067, 23531/05, 1st Dept. 3-14-13

 

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Res Ipsa Loquitur Is Rarely a Basis for Summary Judgment/Questions of Fact About Defendant’s Control of the Instrumentality Causing Injury Precluded Summary Judgment.

A homeowner was sued by a utility employee who was injured when a staircase leading to the homeowner’s basement collapsed.  At the deposition the homeowner testified the house was new when he bought it and he had made no alterations to the stairway.  The plaintiff was granted summary judgment pursuant to the doctrine of res ipsa loquitur.  The Second Department reversed because it could not be ruled out that the builder of the home, and not the defendant, was negligent.  It was not demonstrated, therefore, that the accident was caused by an instrumentality in the exclusive control of the defendant.  The Court wrote:

The plaintiff’s reliance on the doctrine of res ipsa loquitur was insufficient to establish his prima facie entitlement to judgment as a matter of law. A plaintiff must establish the following in order for the doctrine to apply: “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Only in the rarest cases will a plaintiff be awarded summary judgment or judgment as a matter of law in the course of a trial by relying upon the doctrine of res ipsa loquitur … .  Bunting v Haynes, 2013 NY Slip Op 01521, 2012-01717, Index No 25382/10, Second Dept. 3-13-13

 

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Medical Malpractice—Expert Opinion Can Be Based Entirely on Experience.

In affirming the denial of defendants’ motion for summary judgment, the First Department noted that an expert’s affidavit can be sufficient to raise a triable issue of fact even where the opinion is based entirely on the expert’s professional experience: “While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience …”.  Mitrovic v Silverman, 9282, 304369/09, First Dept. 3-7-13

 

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