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WALMART DID NOT OWE A DUTY OF CARE TO PLAINTIFF, AN OFF-DUTY POLICE OFFICER INJURED BY ANOTHER POLICE OFFICER AFTER RESPONDING TO A THEFT AT A WALMART STORE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Walmart did not owe a duty of care to plaintiff, an off-duty police officer who was injured by another police officer after responding to a call about a theft from Walmart:

Walmart contends that it owed no duty to plaintiff and that the court thus erred in denying its motion. We agree. “Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff . . . ‘Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm’ ” … . “[T]he definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration” … , and that determination is made “by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability … .

… [P]rior thefts at the Walmart store do not bear a sufficient relationship to what occurred in this instance—a negligent motor vehicle accident between plaintiff and his coworker—so as to create a duty flowing from Walmart to plaintiff. …

… [A]ny alleged violation of Walmart’s internal policy did not create a duty flowing from Walmart to plaintiff. The purpose of the internal policy was to protect “the physical well-being of [s]uspects, customers and Walmart associates.” Plaintiff was an off-duty police officer responding to an alleged criminal event who never entered the store. He was not one of those covered by the goal of the policies … . Brown v Wal-Mart Stores, Inc., 2023 NY Slip Op 02403, Fourth Dept 5-5-23

Practice Point: To be liable for negligence, there must be a duty of care running to the plaintiff on the part of the allegedly negligent defendant. Here plaintiff, an off-duty police officer, was injured by another police officer pursuing a suspect who allegedly stole merchandise from Walmart. Walmart did not owe plaintiff a duty of care.

 

ALTHOUGH MRNACAJ GESTURED THAT SALIAN COULD PULL OUT OF A DRIVEWAY INTO MRNACAJ’S LANE, MRNACAJ COULD NOT HAVE FORESEEN THAT SALIAN WOULD CONTINUE INTO THE OTHER LANE WHERE SHE WAS STRUCK, MRNACAJ’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of Mrnacaj’s motion for summary judgment in this traffic accident case, determined Mrnacaj, who allegedly motioned for Salian to pull out from a driveway, was not responsible for Salian’s failure to see what should have been seen. Salian pulled across the lane Mrnacaj was in into the other lane of traffic where she was struck:

“When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances” … . However, even where a party relies on a driver’s gesture, a superseding, intervening act may break the causal connection … . “Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law” … .

In this particular case, assuming without deciding that Mrmacaj negligently motioned to Salian before she proceeded from the driveway and attempted to turn left, Salian’s unforeseeable failure to see what was there to be seen and yield the right of way to the plaintiff constituted an intervening and superseding cause that established the moving defendants’ prima facie entitlement to judgment as a matter of law … . Under the circumstances of this case, Salian not only pulled her vehicle out of the driveway into the lane occupied by Mrnacaj, but also crossed that lane into a farther lane intended for vehicles traveling in the opposite direction of Mrnacaj, which included the plaintiff’s oncoming vehicle that should have been seen … . Dyakiw v Salian, 2023 NY Slip Op 02298, Second Dept 5-3-23

Practice Point: Even if a driver negligently gestures to another driver to pull out of a driveway, the gesturing driver is not liable for the other driver’s unforeseen negligence (here pulling into the other lane where she was struck).

 

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CAUSES OF ACTION IN THE COMPLAINT BASED UPON ALLEGATIONS NOT INCLUDED IN THE NOTICE OF CLAIM MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action against the municipality should have been dismissed because the notice of claim did not provide notice of them:

The Supreme Court should have granted that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action arising from events allegedly transpiring after January 6, 2019, insofar as asserted against them, because the plaintiff failed to serve an adequate notice of claim with respect to those causes of action. “[C]auses of action or legal theories may not be raised in the complaint that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one” … . Here, the notice of claim was limited to the incident that allegedly transpired on January 6, 2019, and thus, the causes of action arising out of events allegedly occurring thereafter, insofar as asserted against the appellants, are foreclosed … . Curry v Town of Oyster Bay, 2023 NY Slip Op 02297, Second Dept 5-3-23

Practice Point: A complaint against a municipality cannot allege causes of action which are based on facts not included in the notice of claim.

 

THERE WAS EVIDENCE DEFENDANTS’ EMPLOYEES DIRECTED TRUCKS TO DRIVE OVER THE DEFECTIVE SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, RAISING A QUESTION OF FACT WHETHER DEFENDANTS CREATED THE SIDEWALK DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff raised a question of fact about whether defendants, whose businesses were across the street from the cracked sidewalk where plaintiff fell, created the defect. There was evidence that truck servicing defendants’ businesses drove over the sidewalk to back in to defendants’ loading dock:

… [T]he plaintiff raised a triable issue of fact as to whether the defendants committed an affirmative act of negligence that resulted in the creation of the dangerous condition on the sidewalk … . In opposition to the defendants’ motion, the plaintiff submitted the deposition testimony of an individual who had resided next door to the defendants’ premises for nearly 56 years. The neighbor testified that the street on which he lived was a dead-end street that was mostly residential, and that the drivers of 18-wheel tractor-trailers that made deliveries to the defendants’ business, while maneuvering into the driveway of the premises, frequently drove onto the sidewalk across the street, thereby creating the condition that caused the plaintiff to trip and fall. The neighbor had, on numerous occasions, observed [defendants’ employees] directing truck drivers onto the sidewalk while assisting them in backing up to the loading dock. This evidence was sufficient to raise a triable issue of fact as to whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident … . Abramson v Janowski’s Hamburgers, Inc., 2023 NY Slip Op 02293, Second Dept 5-3-23

Practice Point: Here there was evidence the sidewalk where plaintiff fell, which was across the street from defendants’ businesses, was driven over by trucks making deliveries to defendants’ businesses, creating the defect.

 

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IN THIS PARKING-LOT-ICE SLIP AND FALL CASE, THE SNOW REMOVAL CONTRACTOR DID NOT DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM AND THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; THE DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant snow-removal company, Landscapes, and the defendant property owners, Nambar, were not entitled to summary judgment in this parking-lot-ice slip and fall case. Landscapes did not show it did not launch an instrument of harm by piling snow which melted and formed ice, and the Nambar defendants did not show they did not have constructive notice of the icy condition:

… [S]ince the plaintiff’s pleadings alleged that the Landscapes defendants, through their snow removal efforts, created the icy condition in the parking lot, thereby launching a force or instrument of harm that caused the plaintiff’s injuries, those defendants, in support of their motion for summary judgment, were required to establish, prima facie, that they did not create the alleged dangerous condition … . The Landscapes defendants failed to make such a showing, as they did not affirmatively establish that they did not create the icy condition by negligently piling snow in an elevated area in the parking lot, where it allegedly melted and created a stream of water that refroze … . …

… [T]he Namdar defendants failed to eliminate triable issues of fact as to whether they had constructive notice of the alleged ice condition. The deposition testimony of the Namdar defendants’ building engineer raised a triable issue of fact as to whether those defendants had notice of the condition that allegedly caused the ice to form, i.e., the stream of water flowing from the pile of snow in the elevated area of the parking lot … . In addition, the deposition testimony of [one of the Landscapes defendants] indicated that the building engineer had instructed him to pile snow in certain places, including the elevated area of the parking lot, thus raising a triable issue of fact as to whether the Namdar defendants were responsible for creating the alleged ice condition … . Tomala v Islandia Expressway Realty, LLC, 2023 NY Slip Op 02347, Second Dept 5-3-23

Practice Point: Here in this slip and fall case the snow-removal contractor did not demonstrate it did not launch an instrument of harm by piling snow such that it melted and formed ice and the property owners did not demonstrate they did not have constructive notice of or did not participate in the creation of the dangerous condition. The defendants should not have been granted summary judgment.

 

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DEFENDANT COULD NOT SEEK INDEMNIFICATION FOR PLAINTIFF’S DAMAGES FROM THIRD-PARTY DEFENDANT BECAUSE PLAINTIFF WAS THE THIRD-PARTY DEFENDANT’S SPECIAL EMPLOYEE FOR WHOM WORKERS’ COMPENSATION WAS THE EXCLUSIVE REMEDY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Count, determined the defendant, TIA, could not seek indemnification for plaintiff’s damages from third-party defendant, Freeman, because plaintiff was Freeman’s special employee for whom Workers’ Compensation is the exclusive remedy:

Supreme Court should have dismissed TIA’s common-law indemnification and contribution claims on the ground that plaintiff was Freeman’s special employee when his accident occurred and therefore, the claims are precluded by the Workers’ Compensation Law. “A worker may be deemed a special employee where he or she is ‘transferred for a limited time of whatever duration to the service of another'” … . “While the mere transfer does not compel the conclusion that a special employment relationship exists, a court is most likely to find that it does where the transferee ‘controls and directs the manner, details and ultimate result of the employee’s work'” … . Carey v Toy Indus. Assn. TM, Inc., 2023 NY Slip Op 02280, First Dept 5-2-23

Practice Point: If plaintiff’s sole remedy against a party is Workers’ Compensation, a defendant cannot seek indemnification from that party. Here plaintiff was the third-party defendant’s special employee so defendant could not seek indemnification from the third-party defendant.

 

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THE COURT OF APPEALS UPHELD THE VIABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE AS IT APPLIES TO SCHOOL SPORTS; AN EXTENSIVE DISSENT ARGUED THE DOCTRINE SHOULD BE ABANDONED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over two dissenting opinions, one of which argued the implied assumption of risk doctrine should be abandoned, determined the dismissal of one of the school-sports-assumption-of-risk cases before it (Stecky) should be affirmed and the dismissal of the other (Grady) should be reversed because it raised unresolved questions of fact:

In Secky, the primary assumption of risk doctrine applies, and we affirm the Appellate Division order granting defendants’ motion for summary judgment. Plaintiff, who had played basketball at the highest amateur student level, was injured during a drill in which the players competed to retrieve a rebound. Plaintiff’s coach had explained that the boundary lines of the court would not apply during the drill and that only major fouls would be called. At the time of the drill, bleachers stationed near the court were retracted. Plaintiff was injured when, pursuing a loose ball from the top of the key towards the bleachers, another player collided with him, causing plaintiff to fall into the bleachers and sustain an injury to his right shoulder. Plaintiff, through his mother, sued the coach and the school district, and defendants moved for summary judgment. * * *

… [P]laintiff’s injury is one inherent in the sport of basketball and so he assumed the risk of the injury he sustained. …

In Grady, by contrast, material issues of fact remain to be resolved by a jury. Plaintiff, a senior on the Chenango Valley High School varsity baseball team, was injured during his participation in a fast-moving, intricate drill. The drill involved two coaches hitting balls to players stationed in the infield, with one coach hitting to the third baseman, who would then throw to first base, while another coach hit to the shortstop, who would throw to the second baseman who would, in turn, throw to a player at “short first base,” positioned a few feet from regulation first base. Because the drill required baseballs from two parts of the infield to be thrown to two players in the same area by first base, the coaches had positioned a protective screen, measuring seven by seven, between the regulation first baseman and the short first baseman. Plaintiff, in the group of players assigned to first base, was injured when an errant ball, intended for the short first baseman, bypassed the short first baseman and the protective screen and hit him on the right side of his face, causing serious injury to his eye including significant vision loss. …

… [P]laintiff has raised triable questions of fact regarding whether the drill, as conducted here and with the use of the seven-by-seven-foot screen, “was unique and created a dangerous condition over and above the usual dangers that are inherent” in baseball … , and whether plaintiff’s awareness of the risks inherent in both the game of baseball and the practices that are a necessary part of participation in organized sports encompassed the risks arising from involvement in the drill performed here. Grady v Chenango Val. Cent. Sch. Dist., 2023 NY Slip Op 02142, CtApp 4-27-23

Practice Point: The majority rejected the dissenter’s argument that the assumption of risk doctrine should be abandoned.

 

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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED; HER TESTIMONY ABOUT HER ALLEGED CONDUCT AT THE INDEPENDENT MEDICAL EXAMINATION (IME) WOULD HAVE BEEN CUMULATIVE AND DEFENDANTS COULD NOT SHOW THE IME WAS COMPROMISED IN ANY WAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s counsel should not have been disqualification based upon her alleged interference with the independent medical examination (IME). Defendants did not demonstrate counsel’s testimony concerning the IME was necessary, given the plaintiff’s and physician’s ability to testify:

… [D]isqualification is required “only where the testimony by the attorney is considered necessary and prejudicial to plaintiffs’ interests” … .

… Although defendants maintain that they have a right to call plaintiff’s counsel as a witness based on the knowledge she obtained at the IME, and therefore her disqualification under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 is required, defendants have not established that counsel’s testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the examining physician and plaintiff herself … .

The examining physician completed a “meaningful examination” of plaintiff at the IME, reflected by the IME report in which he was able to opine with a reasonable degree of medical certainty as to the genesis of plaintiff’s symptoms, and defendants have not established that they were prejudiced by the contents of the report based on counsel’s alleged intrusions … . To the extent that further information is required to prepare a defense, the remedy is not disqualification of opposing counsel but rather to permit defendants to seek further discovery to obtain that information … . Domingo v 541 Operating Corp., 2023 NY Slip Op 02175, First Dept 4-27-23

Practice Point: Defendants alleged plaintiff’s counsel’s behavior during the independent medical examination (IME) required her disqualification because defendants needed to call her as a witness to IME proceedings. The First Department held that counsel’s testimony about the IME was not necessary (cumulative to plaintiff’s and the physician’s testimony) and defendants did not show any prejudice stemming from counsel’s alleged conduct. Therefore plaintiff’s counsel and her firm should not have been disqualified.

 

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MEDICAL RECORDS DEMONSTRATED THE NEGLIGENT FAILURE TO DIAGNOSE A SEVERED NERVE; THEREFORE THE MEDICAL FACILITY WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; THE PETITION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to file a late notice of claim in this medical malpractice action should have been granted. The medical facilities’ (NHCC’S) failure to diagnose a severed nerve was apparent from the medical records. Therefore NHCC had timely notice of the nature of the claim:

Medical records can establish actual knowledge of the essential facts constituting a claim where they “evince that the medical staff, by its acts or omissions, inflicted an[ ] injury on plaintiff” … . “While expert opinion may be helpful to this showing, it is not required where ‘the basic facts underlying the malpractice claims [can] be gleaned from the . . . medical records'” … . Here, NHCC acquired actual knowledge of the essential facts constituting the petitioners’ claim, since its employees participated in the acts or omissions giving rise to the claim and prepared medical records from which it could be readily inferred that NHCC negligently failed to timely diagnose and treat the injured petitioner’s nerve injury … .

Further, under the circumstances of this case, the petitioners demonstrated a reasonable excuse for the delay in serving a notice of claim based upon, inter alia, the injured petitioner not learning of the nerve injury until his surgery on March 11, 2021, followed by his recovery time from the surgery and inability to consult with an attorney until after he was fully vaccinated for COVID-19 due to preexisting health conditions … .

Moreover, the petitioners presented a “plausible argument” that NHCC could conduct an adequate investigation of the claim despite the delay, and thus, NHCC would not be substantially prejudiced by the late notice of claim … . Matter of Cleary v Nassau Health Care Corp., 2023 NY Slip Op 02121, Second Dept 4-26-23

Practice Point: Here the medical records were deemed to have provided the medical facility with timely knowledge of the negligent failure to diagnose a severed nerve. Therefore the petition for leave to file and serve a late notice of claim should have been granted.

 

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HERE THE LEASE MADE THE OUT-OF-POSSESSION LANDLORD RESPONSIBLE FOR STRUCTURAL REPAIRS AND MADE THE THE TENANT RESPONSIBLE FOR ALL NON-STRUCTURAL REPAIRS; THE CRACKED STEP WAS NOT A STRUCTURAL DEFECT; THE FACT THAT THE LANDLORD WAS AWARE OF THE DEFECT WAS IRRELEVANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should have been granted. The court noted that if, due to the provisions of the lease, an out-of-possession landlord is not responsible for the repair of a defect, the fact that the landlord had notice of the defect is irrelevant:

“An out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it ‘(1) is contractually obligated to make repairs or maintain the premises or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision'” … .Here, defendant established that it was an out of possession landlord with no contractual obligation to make repairs or maintain the restaurant premises. Pursuant to Paragraph 4 of the lease agreement, all non-structural repairs to the premises were to be made by the tenant restaurant at its sole cost and expense. Moreover, the cracked step at issue was not a significant structural or design defect that is contrary to a specific statutory safety provision … .

In response, plaintiff failed to raise a triable issue of fact sufficient to defeat defendant’s motion. Plaintiff’s assertion that there is an issue of fact as to whether defendant had actual notice of the cracked step on which plaintiff fell is without merit. An out of possession landlord may not be held liable even if it had notice of the defective condition prior to the accident … . Padilla v Holrod Assoc. LLC, 2023 NY Slip Op 02082, First Dept 4-25-23

Practice Point: By the terms of the lease, the out-of-possession landlord was only responsible for structural repairs. The cracked step in this slip and fall case was not a structural defect. The fact that the landlord was aware of the defect was irrelevant.

 

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