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THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE POTHOLE WHERE PLAINTIFF FRACTURED HER ANKLE AND FAILED TO REPAIR IT; NONJURY VERDICT REVERSED (THIRD DEPT).

The Third Department, reversing a nonjury verdict in the Court of Claims, determined the evidence demonstrated the defendant (NYS) had constructive notice of the pothole where plaintiff fractured her ankle in September 2017:

All four DOT [Department of Transportation] witnesses acknowledged that they did not know how long the pothole existed prior to [plaintiff’s] accident. One DOT witness, a retired assistant resident engineer, confirmed that with a “freeze/thaw in the winter . . . the actual [popping out [of a pothole] . . . can occur sometime later, even in warmer months.” The key testimony came from George Laundrie, DOT’s resident engineer … . When asked whether the pothole “must have formed sometime prior to the summer” of 2017, Laundrie responded: “I don’t think it’s fair to say it must have formed prior to June of 2017. I think it’d be fair to say it’s likely it probably formed prior to that . . . , I wouldn’t say must have, but it’s probably pretty likely it formed prior to June.” …

In reviewing a nonjury verdict on appeal, this Court has broad, independent authority to weigh the evidence and render a judgment “warranted by the facts” … . In our view, Laundrie’s testimony was not ambiguous and established that it was probable that the pothole existed for several months before Feeney’s accident. Correspondingly, the record shows that defendant’s road maintenance crews worked in this area six times since January 2017, and most recently in July 2017. On this record, we conclude that claimants met their burden of proving that despite having constructive notice, defendants were negligent in failing to repair the pothole (see PJI 1:60). Inasmuch as issues of comparative negligence and damages remain to be determined, the claim must be remitted to the Court of Claims (see Court of Claims Act … . Feeney v State of New York, 2023 NY Slip Op 06574, Third Dept 12-21-23

Practice Point: Here the Third Department reversed a nonjury verdict in the Court of Claims finding that the evidence demonstrated the State had constructive notice of the pothole where plaintiff fractured her ankle and negligently failed to repair. The matter was sent back for determination of the comparative negligence and damages issues.

 

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QUESTION OF FACT WHETHER DEFENDANT DRIVER, WHO ALLEGEDLY MADE A TURN IN FRONT OF PLAINTIFF BICYCLIST, SAW WHAT WAS THERE TO BE SEEN (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant driver saw what was there to be seen in this bicycle-vehicle accident. Plaintiff bicyclist alleged he was halfway across the road in a crosswalk when defendant made a sudden turn into his path:

“Pursuant to Vehicle and Traffic Law § 1231, a person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself into a dangerous position” … . Pursuant to Vehicle and Traffic Law § 1146(a), motorists must “exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal” on the roadway and to “give warning by sounding the horn when necessary” … . A motorist also has a “common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses” … .

… T]he defendant … failed to establish … that his conduct was not a proximate cause of the accident. The defendant testified at his deposition that he slowly made his turn, and that he did not see the plaintiff prior to the impact. The plaintiff testified at his deposition that he saw the defendant’s vehicle make a sudden right turn in front of him one second prior to the impact. Thus, the defendant’s own submissions raised triable issues of fact as to whether the defendant failed to see what was there to be seen through the proper use of his senses … . Khalil v Garcia-Olea, 2023 NY Slip Op 06517, Second Dept 12-20-23

Practice Point: A driver is expected to see what is there to be seen. Here it was alleged defendant driver made a turn into the path of plaintiff bicyclist. Defendant driver’s motion for summary judgment should not have been granted.

 

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INFANT PLAINTIFF ASSUMED THE RISK OF FALLING BECAUSE OF PEBBLES AND WET GRASS ON THE SOCCER FIELD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined infant plaintiff assumed the risk of falling in a school pick-up soccer game. Plaintiff alleged he fell because of pebbles and wet grass on the playing field:

The infant plaintiff testified that he fell because of a combination of, among other things, pebbles on the field and wet and muddy grass. The infant plaintiff further testified that there were no puddles, and the grass was wet from the previous day’s rain and other students playing with water balloons on the field. However, neither the pebbles nor the wet grass described in this case presented a concealed or unreasonably increased risk beyond those inherent in the activity of outdoor soccer … , regardless of whether the wet grass was caused by rain or water balloons … . Furthermore, merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision … .   To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields … . C.P.G. v Uniondale Sch. Dist., 2023 NY Slip Op 06512, Second Dept 12-20-23

Practice Point: Here the infant plaintiff assumed the risk of falling because of pebbles and wet grass on the soccer playing field.

 

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NONE OF THE ESPINAL EXCEPTIONS APPLIED TO THE DEFENDANT FIRE SAFETY AND SECURITY CONTRACTOR IN THIS SLIP AND FALL CASE; THEREFORE THE CONTRACTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED; THE ISSUE WAS PROPERLY CONSIDERED ON APPEAL, DESPITE THE FAILURE TO RAISE IT BELOW, BECAUSE IT CONCERNED A QUESTION OF LAW (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant fire safety and security contractor’s motion for summary judgment in this slip and fall case should have been granted. It was alleged the steps where plaintiff fell were in disrepair and were not sufficiently illuminated, which had nothing to do with defendant-contractor’s duties. Therefore the contractor did not “launch and instrument of harm,” plaintiff could not have relied upon the contractor to make the area safe, and the contractor’s contract with the owner did not displace the owner’s safety-related responsibilities:

Unity, the building’s fire safety and security contractor, should have been granted summary judgment. Even assuming that Unity’s contractual fire safety inspection duties extended to the identification of premises defects such as the broken step involved in plaintiff’s mishap, any failure by Unity to identify that defect would not have constituted the affirmative launching of a force or instrument of harm within the meaning of Espinal … . The same is true of any failure by Unity to call attention to insufficient lighting of the stairway. Further, Unity’s contract did not completely displace the duty of the owner or managing agent to maintain the safety of the premises … . Nor is there any evidence that plaintiff detrimentally relied on Unity to perform its contractual duties. Accordingly, on this record, none of the Espinal conditions for holding a premises contractor liable for an injury to a third party are satisfied with respect to Unity. Diamond v TF Cornerstone Inc., 2023 NY Slip Op 06473, First Dept 12-19-23

Practice Point: Here none of the Espinal exceptions applied such that the contractor could be held liable for the slip and fall.

Practice Point: Although the “Espinal” issue was not raised below, it could be raised on appeal because it presented a question of law.

 

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IN A SLIP AND FALL CASE, WHETHER THE CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE AND THE PROPERTY OWNER’S DUTY TO WARN, BUT DOES NOT SPEAK TO PROXIMATE CAUSE OR NEGLIGENCE; HERE THE IRREGULARLY-SHAPED LANDING AND ABSENCE OF A HANDRAIL VIOLATED THE CITY BUILDING CODE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fact that the condition (an irregularly-shaped landing) is open and obvious does not speak to proximate cause but may be relevant to plaintiff’s comparative negligence (which will not defeat a summary judgment motion).. Here there was evidence the landing and the lack of a handrail violated the NYC Building Code. Defendants’ motion for summary judgment should not have been granted:

Plaintiff … raised a material issue of fact as to whether the irregular shape and dimensions of the landing and the lack of a handrail were the causes of his fall through, inter alia, his testimony that the “shortness” and “angle” of the landing caused his ankle to roll and through his expert engineer’s unrebutted affidavit that the “irregular shape” and “shortness” of the landing, which was in violation of the City of New York Building Code, and the lack of a handrail, proximately caused the fall.

The lower court’s assessment that the landing’s purported dangerous defects were open and obvious has no bearing upon the central, threshold issue of whether there was a causal connection between the defects and the plaintiff’s injury … . Further, it is axiomatic that the open and obvious nature of a hazard pertains to an owner’s duty to warn of such danger but does “not eliminate a claim that the presence of the hazardous condition constituted a violation of the property owner’s duty to maintain the premises in a reasonably safe condition” … . Perry v Sada Three, LLC, 2023 NY Slip Op 06456, First Dept 12-14-23

Practice Point: In a slip and fall, the “open and obvious” character of the condition has no bearing to the issue whether the defects caused plaintiff’s injury.

 

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IN A TRAFFIC ACCIDENT CASE A PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN ONLY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF THE PLAINTIFF MOVES TO DISMISS THE DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bicyclist’s motion for summary judgment in this traffic accident case should not have been granted. The court noted that plaintiff’s comparative negligence in a traffic accident case is usually not considered on a summary judgment motion except where, as here, plaintiff moved to dismiss the defendant’s comparative-negligence affirmative defense:

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case against a defendant on the issue of that defendant’s liability … . “[However], the issue of a plaintiff’s comparative negligence may be decided in the context of a plaintiff’s motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant’s affirmative defense alleging comparative negligence”… . A motion for]summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b] …). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party … . Garutti v Kim Co Refrig. Corp., 2023 NY Slip Op 06354, Second Dept 12-13-24

Practice Point: If a plaintiff in a traffic accident case makes a motion for summary judgment which includes a motion to dismiss defendant’s comparative-negligence affirmative defense, the plaintiff’s comparative negligence can properly be considered by the motion court.

 

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ALTHOUGH THE BACKHOE WHICH COLLIDED WITH PLAINTIFF’S VEHICLE HAD BEEN USED FOR ROADWORK THAT DAY, AT THE TIME OF THE ACCIDENT THE BACKHOE WAS BEING USED TO TRANSPORT GRAVEL TO THE WORK SITE; THE SECOND DEPARTMENT DETERMINED THE BACKHOE WAS NOT “ACTIVELY ENGAGED” IN ROADWORK AT THE TIME OF THE ACCIDENT AND, THEREFORE, THE HIGHER “RECKLESS DISREGARD” STANDARD FOR LIABILITY IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, reversing Supreme Court, determined the county employee who rear-ended the plaintiff’s vehicle with a backhoe was not engaged in road construction work within the meaning of the Vehicle and Traffic Law at the time of the accident and, therefore, was not subject to the higher “reckless disregard” standard for liability. Although the backhoe had been used to repair a road, at the time of the accident the backhoe was transporting gravel to the work site. The Second Department determined transporting gravel was did not meet the definition of being “actively engaged” in construction work:

… [W]e conclude that the defendant driver was not actually engaged in work on a highway at the time of the accident …, because the act of transporting gravel to a highway worksite does not itself constitute construction, repair, maintenance, or similar work on a highway … . When a vehicle travels on a highway to transport equipment or materials, the road itself is not being worked on; instead, the road is being used for its intended purpose of facilitating travel. Moreover, the mere transporting of materials or equipment is different in kind from acts that have been deemed to constitute work “on” a highway, such as clearing or cleaning the road or its shoulder … , or actively assessing the conditions of the road or searching for a reported hazard on the road … . …

​… [T]he defendants do not contend that the mere transporting of construction materials on a public road will in every instance constitute being actually engaged in work on a highway. Rather, in advancing their claim, the defendants contend that the defendant driver’s transport of materials fell within the scope of the statute because the defendant driver had been repairing a roadbed on the day of the collision and had not yet completed his work for the day. We disagree. The defendants’ position is inconsistent with the statute’s use of the phrase “actually engaged” (Vehicle and Traffic Law § 1103[b]), as reflected in the plain language of the statute and its interpretation by the courts. Qosaj v Village of Sleepy Hollow, 2023 NY Slip Op 06395, Second Dept 12-13-23

Practice Point: A road-construction vehicle involved in an accident will not be subject to the higher “reckless disregard” standard of liability unless the vehicle is “actively engaged” in roadwork at the time of the accident. Transporting gravel to the work site is not considered “active engagement.”

 

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PLAINTIFF ALLEGED ASSAULT AND BATTERY BY POLICE OFFICERS; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE ASSAULT AND BATTERY IS INTENTIONAL, NOT NEGLIGENT, CONDUCT; THE IMMUNITY AFFORDED POLICE OFFICERS RE: ASSAULT AND BATTERY EXTENDS ONLY TO “OBJECTIVELY REASONABLE” CONDUCT; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE POLICE CONDUCT WAS OBJECTIVELY REASONABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the county based upon the alleged assault and battery of plaintiff by police officers should have been dismissed. Assault and battery stem from intentional, not negligent, acts. The assault and battery allegations properly survived summary judgment, however:

… [T]he defendants established their prima facie entitlement to summary judgment dismissing the plaintiff’s cause of action alleging negligence by submitting, inter alia, a transcript of the plaintiff’s testimony at a General Municipal Law § 50-h hearing, in which she testified that a police officer grabbed her, picked her up, and threw her to the ground, causing her injuries. Where, as here, intentional offensive conduct has been established, the actor may be found liable for assault or battery, but not negligence … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether any of her alleged injuries were caused by unintentional conduct … . Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging negligence.

However, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging assault and battery. Police officers are entitled to qualified immunity on state law claims if their actions are “objectively reasonable” … . The determination of whether a use of force was objectively reasonable is an “intensely factual” question “best left for a jury to decide” … . Here, the defendants’ submissions failed to eliminate triable issues of fact as to whether the police officer’s actions were objectively reasonable under the circumstances. Pleva v County of Suffolk, 2023 NY Slip Op 06394, Second Dept 12-13-23

Practice Point: Allegations of intentional conduct, here assault and battery, will not support a negligence cause of action.

Practice Point: Police officers have immunity which will protect them from allegations of assault and battery, but only if the police conduct was “objectively reasonable” (a question of fact).

 

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IN THIS TRAFFIC ACCIDENT CASE, THE PASSENGER IN PLAINTIFF’S CAR EXECUTED A RELEASE IN FAVOR OF PLAINTIFF-DRIVER; DEFENDANT’S COUNTERCLAIM FOR CONTRIBUTION FROM PLAINTIFF FOR ANY INJURY SUFFERED BY THE PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release executed by the passenger (Jelissa) in favor of the plaintiff-driver (Nicole) required the dismissal of the defendant’s counterclaim seeking contribution for any injuries suffered by Jelissa:

Pursuant to General Obligations Law § 15-108(b), “[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.” Here, pursuant to General Obligations Law § 15-108(b), the release executed by Jelissa in favor of Nicole relieves Nicole from liability to the defendant for contribution … . Moraskin v Lati, 2023 NY Slip Op 06362, Second Dept 12-13-23

Practice Point: Here in this traffic accident case, the passenger in plaintiff’s car released plaintiff-driver from any liability. Therefore the defendant’s counterclaim against plaintiff for contribution for any injury to the passenger should have been dismissed.

 

THE SPA PATRON WHO SEXUALLY ASSAULTED PLAINTIFF WAS INVOLVED IN A FIGHT IN THE SPA BUT WAS ALLOWED TO REMAIN; THE FIGHT DID NOT RENDER THE SUBSEQUENT SEXUAL ASSAULT OF THE PLAINTIFF FORESEEABLE BY THE DEFENDANT SPA (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s action against defendant spa based on a sexual assault by a spa patron should have been dismissed. The patron pretended to be an employee of the spa and offered plaintiff a massage. From the standpoint of the defendant spa, the patron’s assault was not foreseeable. The fact that the assailant was involved in a fight before the sexual assault and was allowed to remain in the spa did not render the sexual assault foreseeable:

While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control … . Thus the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults … . To establish foreseeability based upon prior history of third-party criminal behavior, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

Contrary to plaintiff’s allegations, it was not reasonably foreseeable that a fight occurring amongst male patrons, who had been drinking there, could lead to the alleged assailant pretending to be an employee of the spa and then sexually assaulting her … . The prior altercation noted by plaintiff was completely unrelated to her situation and thus cannot support a claim that the instant assault was a foreseeable consequence of defendant permitting the men involved in the altercation [to remain at the premises … . Memeh v Spa 88, LLC, 2023 NY Slip Op 06315, First Dept 12-7-23

Practice Point: Here a spa patron pretending to be a masseuse employed by the spa sexually assaulted the plaintiff. The facts that the patron had been drinking and was involved in a fight but was allowed to remain in the spa did not render the subsequent sexual assault foreseeable.

 

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