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THE REAR-DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT; HERE THERE IS A QUESTION OF FACT WHETHER THE FRONT DRIVER STOPPED SUDDENLY FOR NO APPARENT REASON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the rear driver in this rear-end collision case was negligent. The rear-driver alleged plaintiff’s vehicle stopped for no apparent reason when no cars were in front of it:

“‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle'” (… see Vehicle and Traffic Law § 1129[a]). “‘There can be more than one proximate cause of an accident, and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident'” …. “‘[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision'” … . Laureano v EAN Holdings, LLC, 2024 NY Slip Op 01538, Second Dept 3-20-24

Practice Point: The rear driver in a rear-end collision case is not always negligent. Here there was a question of fact whether the front driver stopped suddenly for no apparent reason.

 

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A DEFECT IN THE TOP STEP OF A STAIRWAY WAS ALLEGED TO HAVE CAUSED THE TRIP AND FALL; THERE WERE QUESTIONS OF FACT WHETHER THE DEFECT WAS OPEN AND OBVIOUS AND WHETHER THE DEFECT WAS A DANGEROUS CONDITION; THE COURT NOTED THAT AN OPEN AND OBVIOUS CONDITION MAY STILL BE DANGEROUS AND THE QUESTION IS USUALLY FOR A JURY TO DECIDE (SECOND DEPT).

The Second Department,, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway trip and fall case should not have been granted. The court noted that a condition which is open and obvious may still be dangerous. Here it was alleged a defect on the edge of the top step caused the fall:

While there is “no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … , when a dangerous condition exists on the premises, proof that the dangerous condition is open and obvious “does not preclude a finding of liability against an owner for failure to maintain property in a safe condition” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually a question of fact for a jury” … .

Here, the defendants’ submissions, including photographs of the alleged defect, failed to eliminate all triable issues of fact as to whether the allegedly defective condition was open and obvious … . While the plaintiff testified at her deposition that she had previously used the stairway and observed the allegedly defective condition, she also testified that she did not inspect the condition each time that she had used the stairway and that she had not noticed that the condition had worsened since she last observed it. Johnson v 1451 Assoc., L.P., 2024 NY Slip Op 01537, Second Dept 3-20-24

Practice Point: An open and obvious condition can still be a dangerous condition. Whether a condition is open and obvious and whether it is inherently dangerous are usually fact-specific questions for a jury.

 

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ALTHOUGH THE REAR DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT, THE ALLEGATION THE FRONT DRIVER SUDDENLY STOPPED FOR A YELLOW LIGHT WAS NOT ENOUGH TO AVOID SUMMARY JUDGMENT IN FAVOR OF THE FRONT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment in this rear-end collision case. The defendant rear driver alleged plaintiff stopped for a yellow light, which did not raise a question of fact about plaintiff’s negligence:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision” … . “But ‘vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows'” … .

Here, in support of his motion, the plaintiff submitted his own affidavit that established, prima facie, that the defendant driver was negligent when he struck the rear of the plaintiff’s stopped vehicle, and that the defendant driver’s negligence was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact. The defendant driver’s explanation for striking the plaintiff’s vehicle in the rear, set forth in his affidavit in opposition to the plaintiff’s motion, that the plaintiff’s vehicle stopped abruptly at a yellow light in front of the intersection’s thick white stop line, was insufficient to raise a triable issue of fact as to the defendant driver’s negligence or whether the plaintiff’s actions contributed to the happening of the accident … . Yawagyentsang v Safeway Constr. Enters., LLC, 2024 NY Slip Op 01580, Second Dept 3-20-24

Practice Point: There are more appellate decisions of late finding questions of fact about whether the rear-driver is negligent in a rear-end collision based upon the allegation the front-driver stopped suddenly for no apparent reason. Here the rear driver alleged the front driver stopped suddenly for a yellow light. That was not enough to raise a question of fact.

 

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PLAINTIFF REAL ESTATE DEVELOPER’S PRIVATE NUISANCE, PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION BASED UPON THE ALLEGED NOXIOUS ODORS FROM DEFENDANT’S LANDFILL SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff real estate developer causes of action against defendant landfill operation for private nuisance, public nuisance and negligence, based upon noxious odors from the landfill, should have been dismissed: Plaintiff alleged the odors made it difficult to sell homes and reduced the value of properties in the vicinity of the landfill:

… [A] private nuisance is one that “threatens one person or . . . relatively few” … . … [P]laintiff’s allegations indicate that the noxious odors affected a large number of community residents and, therefore, we conclude that plaintiff’s cause of action for private nuisance must be dismissed … . …

… [A] public nuisance consists of “a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . “A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large” … .

Here, plaintiff alleged that it suffered a special injury because it “suffered lost profit[s] and other substantial economic loss,” including “irreparable damage to its reputation in the community as a residential home builder.” … [P]laintiff did not allege facts sufficient to support a public nuisance cause of action. It failed to allege that it sustained any harm or damages that were “different in kind, not merely in degree,” from the community at large … .

* * * [P]laintiff “ha[s] not alleged any tangible property damage or physical injury resulting from exposure to the odors” and, “likewise, the economic loss resulting from the diminution of plaintiff[‘s] property values is not, standing alone, sufficient to sustain a negligence claim under New York law” … . William Metrose Ltd. Builder/Developer v Waste Mgt. of N.Y., LLC, 2024 NY Slip Op 01458, Fourth Dept 3-15-24

Practice Point: Here noxious odors from a landfill did not support causes of action for private nuisance, public nuisance or negligence, criteria explained.

 

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THE FACT THAT PLAINTIFF WAS SPECIFICALLY TARGETED FOR A HOME INVASION DID NOT PRECLUDE A FINDING THAT INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property owners should not have been awarded summary judgment in this home invasion case. The fact that plaintiff was specifically targeted did not preclude a finding that building security was inadequate:

Plaintiff was the victim of a home invasion of his apartment in a building owned and operated by defendants. The incident began when someone knocked on plaintiff’s apartment door and asked by name for his niece, who also lived in the apartment. When plaintiff looked through the peephole, he thought he saw a young woman, but the peephole was blurry, as it had been since plaintiff had moved in three or four years earlier. Plaintiff also testified that the chain guard on the door did not function properly. When plaintiff opened the door slightly, the young woman and a man he had not seen through the peephole pushed their way into the apartment and pistol whipped him. After demanding $5,000 that had purportedly been sent to plaintiff’s niece, the two assailants assaulted plaintiff for an extended period and looted the apartment before leaving.

Defendants failed to establish their entitlement to summary judgment dismissing the complaint, as evidence that an attack was targeted toward a particular person does not sever the proximate cause link as a matter of law in cases alleging negligent security … . In light of the record evidence that the building’s locks were malfunctioning, and that plaintiff’s apartment peephole and chain lock were defective, proximate cause is for the factfinder to decide … . Cabrera-Perez v Promesa Hous. Dev. Fund Corp., 2024 NY Slip Op 01338, First Dept 3-14-24

Practice Point: The fact that plaintiff was deliberately and specifically targeted for a home invasion did not preclude a finding that malfunctioning locks and a defective peephole constituted a proximate cause of the invasion and consequent injury.

 

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PLAINTIFF, AN EXPERIENCED GOLFER WHO WAS PARTICIPATING IN A TOURNAMENT, ASSUMED THE RISK OF BEING STRUCK IN THE EYE BY A GOLF BALL WHILE RIDING IN A GOLF CART (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff golfer assumed the risk of being struck by a golf ball during a golf tournament. Supreme Court and the dissenters concluded there was a question of fact whether the design of the defendant golf course unreasonably increased the risk:

Plaintiff was riding in a golf cart on the seventh hole fairway when he was hit by a ball struck by defendant Justin Hubbard, who had just teed off from the third hole. Both the third and seventh holes are over 400 yards in length. The fairways on each hole run parallel, in part, in the area in front of the third tee, and that part of the seventh fairway approaching the green, which from a vantage point on the fairway, is adjacent to and to the right of the third tee.  * * *

… [I]t is well established that “being hit without warning by a shanked shot” is “a commonly appreciated risk” of participating in the sport … . ” ‘[G]olfers are deemed to assume the risks of open topographical features of a golf course’ “… , and “evidence establishing that the proximity of [a tee] to [a different] green and hole was open and obvious” will preclude liability against a golf course for injuries sustained as a result of such proximity … . Katleski v Cazenovia Golf Club, Inc., 2024 NY Slip Op 01366, Third Dept 3-14-24

Practice Point: The majority concluded plaintiff golfer assumed the risk of being struck by a golf ball. Supreme Court and the two dissenters argued the design of defendant golf course unreasonably increased the risk.

 

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THE DISCOVERY DEMANDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST DEFENDANT SCHOOL DISTRICT ALLEGING SEXUAL ABUSE BY A TEACHER WERE OVERLY BROAD AND UNDULY BURDENSOME AND SHOULD HAVE BEEN STRUCK IN THEIR ENTIRETY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discovery demands in this negligent supervision action against a school district, alleging the sexual abuse of plaintiff-student by a teacher, were overly broad and unduly burdensome. Therefore the demands should have been struck in their entirety with no attempt to prune them:

… [A] “‘ …party is not entitled to unlimited, uncontrolled, unfettered disclosure'” … . “Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper” … . A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information (see CPLR 3120[2] …). “Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” … .

Here, many of the plaintiff’s discovery demands were palpably improper in that they were overbroad and burdensome … . The plaintiff’s discovery demands broadly sought, among other things, documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present. Thus, the Supreme Court should have denied the plaintiff’s motion pursuant to CPLR 3124 to compel the District to comply with the plaintiff’s first and second demands for discovery and granted the District’s application pursuant to CPLR 3103(a) for a protective order striking those demands in their entirety instead of pruning them … . Ferrara v Longwood Cent. Sch. Dist., 2024 NY Slip Op 01293, Second Dept 3-13-24

Practice Point: In this negligent supervision action against a school district alleging sexual abuse by a teacher plaintiff’s discovery demands included “documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present”. The demand was overly broad and unduly burdensome and was struck in its entirety.

 

EVEN IF PLAINTIFF’S STAIRWAY FALL RESULTED FROM A MISSTEP, EVIDENCE THAT PLAINTIFF WAS “LOOKING FOR A HANDRAIL” RAISED A QUESTION OF FACT WHETHER THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF THE FALL (SECOND DEPT).

The Second Department, reversing Supreme Court in this stairway slip and fall case, determined that plaintiff’s testimony that he was “looking for a handrail” at the time he fell was sufficient to raise a question of fact whether the absence of a handrail was a proximate cause of the fall. Even if a fall is the result of a misstep, the absence of a handrail could be a proximate cause of the fall:

… [E]ven if a plaintiff’s fall is precipitated by a misstep, where the plaintiff testifies that he or she reached out to try to stop his or her fall, the absence of a handrail, if required by law, may raise an issue of fact as to whether the absence of the handrail was a proximate cause of his or her injury” … . In contrast, the absence of a handrail will not create an issue of fact where the plaintiff does not offer testimony demonstrating “that she [or he] reached out for a handrail either before or during her [or his] fall” or otherwise showing that “the lack of handrails contributed to [the] accident” … .

… Although he was not sure what caused him to lose his balance, the injured plaintiff testified that he was “looking for a handrail” before descending the final set of steps but observed that no handrails were available. “Even if the [injured] plaintiff’s fall was precipitated by a misstep,” his testimony indicating that he would have been using a handrail at the time of his accident had one been available was sufficient to create “an issue of fact as to whether the absence of [an accessible] handrail was a proximate cause of h[is] injur[ies]” … . Curto v Kahn Prop. Owner, LLC, 2024 NY Slip Op 01290, Second Dept 3-13-24

Practice Point: In a stairway-fall case, if the plaintiff indicates they reached for a handrail at the time of the fall, that raises a question of fact whether the absence of a handrail was a proximate cause of the fall, even if the fall was due to a misstep.

 

PLAINTIFF FELL WHEN HER FOOT BECAME ENTANGLED IN CORDS OR TUBES CONNECTED TO MEDICAL EQUIPMENT IN A HOSPITAL ROOM; DEFENDANT DID NOT DEMONSTRATE THE CORDS OR TUBES WERE OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; DEFENDANT SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tubes or cords attached to medical equipment in a neurologic intensive care unit which caused plaintiff’s slip and fall were not demonstrated to be “open and obvious and not inherently dangerous:”

“While a possessor of real property has a duty to maintain that property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” … . “A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … . Moreover, “[a] condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The question of whether a condition is open and obvious is usually a question of fact properly resolved by a jury … .

Here, the defendant failed to establish, prima facie, that the alleged condition of the tubes or cords was open and obvious and not inherently dangerous under the circumstances surrounding the accident … . Butler v NYU Winthrop Hosp., 2024 NY Slip Op 01289, Second Dept 3-13-24\

Practice Point: Whether a condition is open and obvious and not inherently dangerous is usually a question for the jury. Here, in this slip and fall case, there was a question of fact whether cords or tubes connected to medical equipment constituted an open and obvious condition which was not inherently dangerous.

 

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IN THIS SLIP AND FALL CASE, STEPS WHICH DO NOT HAVE UNIFORM RISER HEIGHTS COULD CONSTITUTE A DANGEROUS CONDITION UNDER COMMON LAW NEGLIGENCE PRINCIPLES, WITHOUT REFERENCE TO WHETHER A BUILDING CODE WAS VIOLATED; BOTH THE PROPERTY OWNER AND THE SUBLESSEE COULD BE LIABLE (FIRST DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined the steps which did not have uniform riser heights could constitute a dangerous condition for which the property owner and the sublessee could be liable:

Here, the record demonstrates that the riser heights of the steps were not uniform and that the top riser was approximately three inches taller than the bottom riser. Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party … , we find that both the defendant owner and the defendant car service [the sublessee] failed to demonstrate, prima facie, that a dangerous condition did not exist on the steps or that the disparity in riser heights was not a proximate cause of the accident … . Amparo v Christopher One Corp., 2024 NY Slip Op 01286, 3-13-24

Practice Point: Steps which do not have uniform riser heights can constitute a dangerous condition which is  the proximate cause of a slip and fall under common law negligence principles, irrespective of whether the non-uniform riser heights violated a building code.

 

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