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​ THE TARGETS OF A NO-KNOCK WARRANT ARE OWED A “SPECIAL DUTY” SUCH THAT A MUNICIPALITY MAY BE LIABLE FOR THE NEGLIGENCE OF THE POLICE OFFICERS EXECUTING THE WARRANT (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge Singas, over a two-judge dissent, determined the police owe a “special duty” to those targeted by a no-knock warrant such that liability may be imposed on a municipality for the negligence of the police during execution of the warrant.. Here plaintiff alleged he was shot by a police officer who entered the apartment where he was sleeping.. The certified question from the Second Circuit asked if the “special duty” requirement applies in this situation, or whether it is triggered only when the municipality fails to protect the plaintiff from injury by a third party who is not a municipal employee. The opinion lays out the confusing interplay between the “special duty” requirement and the “governmental-function immunity” affirmative defense, which can defeat a plaintiff’s action even if a “special duty” is deemed to exist. The dissent argued the “special duty” requirement itself is invalid and the “ordinary negligence” standard should apply to governmental actors:

Our precedent dictates that a plaintiff must establish a special duty when suing a municipality in negligence. However, because the underlying premise of the certified question appears to be that a special duty could not be established in a scenario like the one presented, we take this opportunity to clarify that this is not the case: a special duty may be established where the police plan and execute a no-knock search warrant on a targeted residence. Although we have not yet had an occasion to address application of the special duty rule to the execution of no-knock search warrants, that situation fits within the existing parameters of our special duty precedent.

From the dissent:

The majority’s principal error, which infects its entire analysis, is embodied in the following statement: “Consistent with our precedent and the purpose of the special duty rule, we reiterate that plaintiffs must establish that a municipality owed them a special duty when they assert a negligence claim based on actions taken by a municipality acting in a governmental capacity” … . That statement: (1) is not consistent with our precedent, in which we have repeatedly evaluated negligence claims against governmental actors by asking whether an ordinary duty exists; and (2) improperly incorporates the governmental/proprietary distinction from immunity law into negligence law … . Ferreira v City of Binghamton, 2022 NY Slip Op 01953, CtApp 3-22-22

Practice Point: This opinion lays out in detail the confusing interplay between the “special duty” requirement for a negligence suit against a municipality and the “governmental-function immunity” affirmative defense which can defeat a negligence suit even where a special duty is deemed to exist. Here the Court of Appeals determined those targeted by a no-knock warrant are owed a special duty such that a party injured in the warrant-execution may sue the municipality for the negligence of a police officer. The dissent argued the “special duty” requirement is itself invalid and an ordinary negligence standard should apply.

 

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ALTHOUGH THE PERSON WHO ALLEGEDLY ASSAULTED PLAINTIFF AT JFK AIRPORT WAS AN EMPLOYEE OF AMERICAN AIRLINES, HE WAS NOT ON DUTY AT THE TIME OF THE INCIDENT; THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this vicarious liability, negligent hiring and supervision and premises liability action should have been granted. Plaintiff was allegedly assaulted by Miles, who worked for American Airlines, at JFK airport (owned by defendant Port Authority). Plaintiff sued under respondeat superior and negligence theories. Miles testified he was not on duty at the time of the incident:

Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were “generally foreseeable and a natural incident of the employment” … . Where the material facts are not in dispute, the question whether respondeat superior liability attaches is one of law and can be determined on a motion for summary judgment … . Here the threshold question is whether Miles was even working, or under the direction of American, at the time of the incident. … [D]efendants attached the deposition transcript of Miles, who testified that he was not working at the time of the incident. This was sufficient to at least satisfy defendants’ prima facie burden … .

Because the testimony of Miles, who, notably, is not a party to this action, was that he was not on duty when the altercation occurred, defendants shifted the burden on the issue of respondeat superior. Moreover, Miles’s testimony about his job responsibilities — escorting planes in and out, and loading and unloading luggage — established prima facie that the foreseeability element of respondeat superior liability was not present. The alleged assault bore no connection to plaintiff’s work duties, and thus was not “in furtherance of any employer-related goal whatsoever”  Summors v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 01891, First Dept 3-17-22

Practice Point: An American Airlines employee allegedly assaulted plaintiff at JFK airport. The defendants demonstrated the American Airlines employee was not on duty at the time of the incident, which was deemed fatal to respondeat superior (vicarious) liability.

 

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CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendants in this ice slip and fall case did not eliminate questions of fact about whether they had constructive notice of the icy condition:

Supreme Court found that plaintiffs’ testimony, submitted by defendants, showed that the allegedly dangerous condition “was neither visible nor had it existed for a significant period of time,” and “plaintiffs have not submitted any evidence to prove . . . constructive notice.” Although [plaintiff] testified that the parking lot appeared wet, not icy, when viewed from her husband’s truck, she also stated that she saw the ice once she had fallen; further, the affidavit of a witness states that “[t]he ice in the parking lot that morning was clearly visible.” Thus, the record contains conflicting accounts as to the visibility of the ice. “When considering a summary judgment motion, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations” … . Applying this standard, we find a triable issue of fact as to constructive notice. Carpenter v Nigro Cos., Inc., 2022 NY Slip Op 01857, Third Dept 3-17-22

Practice Point: Where there is conflicting evidence of constructive notice of a dangerous condition, here whether the ice which caused plaintiff’s slip and fall was visible, summary judgment is not appropriate.

 

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ALTHOUGH THE INFANT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER SLIP AND FALL; MOTHER, FATHER AND THE DEFENDANTS PROVIDED CIRCUMSTANTIAL EVIDENCE THAT THE FALL WAS CAUSED BY AN IDENTIFIED DEFECT IN THE SIDEWALK, RAISING A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that fact that the infant plaintiff, who was four at the time of her slip and fall, could not identify the cause of her fall did not require summary judgment in defendant’s favor. The cause of the fall may be established  by circumstantial evidence:

“In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” … . However, “‘[t]hat does not mean that a plaintiff must have personal knowledge of the cause of his or her fall'” … . A determination “that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury” … . …

… [T]he plaintiffs submitted, among other things, the affidavit of the mother of the infant plaintiff who averred that she observed the infant plaintiff fall and that the fall was caused by a defective condition of a sidewalk in the park … . The mother also identified the location of the alleged defective sidewalk in a photograph that was included in the submission of both the plaintiffs and the … defendants … . In support of their respective motions, the … defendants had also submitted, inter alia, transcripts of the deposition testimony of the infant plaintiff, who testified, among other things, that her mother had seen her fall, and of her father, who averred that, at the time of the incident, he ran over to his daughter immediately after her fall and that, at that time, her body was partly on the sidewalk at issue. E. F. v City of New York, 2022 NY Slip Op 01769, Second Dept 3-16-22

Practice Point: Although the infant plaintiff could not identify the cause of her slip and fall, which is usually a fatal evidentiary problem, mother, father and defendants provided circumstantial evidence which raised a question of fact about an identified sidewalk defect as the cause of the fall.

 

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SUN GLARE DID NOT CREATE AN EMERGENCY FOR THE BUS DRIVER WHO STRUCK PLAINTIFF PEDESTRIAN (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the defendant bus driver and bus company did not raise a question of fact on the applicability of the emergency doctrine.. Defendants alleged sun glare prevented the driver from seeing plaintiff pedestrian in the crosswalk:

… [T]he defendants failed to raise a triable issue of fact as to whether Ruff’s foreseeable encounter with sun glare, while driving on a route with which he was familiar, was an emergency not of his own making, which left him with only seconds to react and virtually no opportunity to avoid a collision with the plaintiff … . Morales-Rodriguez v MTA Bus Co., 2022 NY Slip Op 01781, Second Dept 3-16-22

Practice Point: Here the bus driver alleged sun glare created an emergency which should excuse his striking plaintiff pedestrian. The allegation did not raise a triable question of fact.

 

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THE EXPERT AFFIDAVITS SUBMITTED ON BEHALF OF THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS OF NEGLIGENCE; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert affidavits in this medical malpractice action did not address all the allegations of negligence and were otherwise deficient. Therefore defendants’ motions for summary judgment should not have been granted:

The Koyfman defendants’ expert failed to address specific allegations of negligence asserted against the Koyfman defendants … , failed to address conflicting evidence in the record … , and failed to eliminate issues of fact as to the cause of the decedent’s injuries…. . …

… [Defendant] ORMC’s expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that Solomon did not depart from good and accepted medical practice in rendering treatment to the decedent and did not proximately cause her injuries … .. Moreover, ORMC’s expert failed to address specific allegations of negligence asserted against [defendant] Solomon … .Martinez v Orange Regional Med. Ctr., 2022 NY Slip Op 01780, Second Dept 3-16-22

Practice Point: At the summary judgment stage, medical malpractice actions are determined by the expert affidavits. If a party’s expert does not address all the allegations of negligence, that party’s motion for summary judgment will be denied without the need to even consider the opposing papers.

 

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DEFENDANT OUT-OF-POSSESSION LANDLORD WAS NOT OBLIGATED BY THE LEASE OR ANY STATUTE TO REPAIR THE FLOOR OF A WALK-IN FREEZER IN THE LEASED PREMISES; PLAINTIFF ALLEGED DENTS IN THE METAL FLOOR CAUSED HIS LADDER TO FALL OVER; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this ladder fall case should have been granted. Plaintiff alleged dents in a metal freezer floor caused his A-frame ladder to fall over:

“An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a ‘duty imposed by statute or assumed by contract or a course of conduct'” … . Here, the defendants established, prima facie, that they were out-of-possession landlords which were not bound by contract or course of conduct to repair the allegedly dangerous condition. The plaintiff did not allege that dents in the floor of the walk-in freezer violated any statutes, and therefore the defendants were not obligated to disprove that they had a duty imposed by statute to repair the complained-of condition as part of their prima facie burden … .. Contrary to the plaintiff’s contention, the defendants adequately authenticated that the lease agreement submitted in support of their motion was in effect at the time of the accident … . Lopez v Mattone Group Raceway, LLC, 2022 NY Slip Op 01779, Second Dept 3-16-22

Practice Point: Here the lease did not require the out-of-possession landlord to maintain the leased premises and there was no statute imposing a duty to maintain the premises on the landlord. Therefore the out-of-possession landlord was not liable for dents in the walk-in freezer’s floor (in the leased premises) which allegedly caused plaintiff’s ladder to fall.

 

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THE JURY COULD HAVE FOUND PLAINTIFF BUS PASSENGER’S INJURIES WERE CAUSED BY THE NORMAL JERKS AND JOLTS OF BUS TRAVEL AND NOT BY ANY NEGLIGENCE ON DEFENDANTS’ PART; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the defense verdict in this bus-passenger-injury case should not have been granted. The jury could have found plaintiff was injured by the normal “jerks and jolts” of bus travel without any negligence on defendants’ part:

… [G]iving due deference to the jury’s credibility findings … , it could have determined, based upon a fair interpretation of the evidence introduced at trial, including the testimony of the bus driver and a surveillance video, that the movement of the bus as it drove over the speed bump was one of the sort of “jerks and jolts commonly experienced in city bus travel” and not attributable to the negligence of the defendant … . Jones v Westchester County, 2022 NY Slip Op 01774, Second Dept 3-16-22

Practice Point: Here the testimony of the bus driver and the surveillance video allowed the jury to determine plaintiff bus-passenger’s injuries were caused by normal movements of the bus and not by the driver’s negligence. Therefore the plaintiff’s motion to set aside the defense verdict should not have been granted.

 

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AN ENTRY IN A HOSPITAL RECORD INDICATING PLAINTIFF FELL DOWN A FEW STAIRS WAS NOT GERMANE TO TREATMENT OR DIAGNOSIS AND WAS NOT AN ADMISSION BECAUSE THE SOURCE OF THE ENTRY WAS UNKNOWN; NEW TRIAL ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial, determined an entry in the plaintiff’s medical records indicating she fell down a few stairs was inadmissible. Plaintiff alleged she fell through a broken step. The entry in the hospital record was not germane to diagnosis or treatment and the source of the entry could not be ascertained:

… Supreme Court should have precluded the admission into evidence of an entry in a medical record from … the Brookdale medical record … that indicated that the plaintiff sustained a “mechanical fall down ‘a few’ stairs.” An entry in a medical record that is not germane to diagnosis or treatment but is inconsistent with a position taken by a party at trial is admissible as an admission by that party only when there is evidence connecting the party to the entry … .. “[W]here the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … .

Here, the Brookdale medical record was not germane to the plaintiff’s diagnosis or treatment, and thus was not admissible on that basis … .. Moreover, there was no showing that the plaintiff was the source of the information in that record and so it was not admissible as an admission by the plaintiff … . Fraser v 147 Rockaway Pkw, LLC, 2022 NY Slip Op 01772, Second Dept 3-16-22

Practice Point: An entry in a hospital record which is not germane to treatment or diagnosis is not admissible. An entry in a hospital record which is inconsistent with a plaintiff’s position at trial is admissible as an “admission” only if it is clear plaintiff was the source of the entry. If, as it was here, the source of the entry is unknown, it is inadmissible.

 

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IN THIS NO-FAULT INSURANCE MATTER, PLAINTIFF INSURER DID NOT DEMONSTRATE COMPLIANCE WITH THE NYCRR SUCH THAT IT WAS ENTITLED TO SUMMARY JUDGMENT BASED UPON THE INSURED’S FAILURE TO APPEAR FOR AN INDEPENDENT MEDICAL EXAMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff insurer did not demonstrate it was entitled to summary judgment based upon the insured’s failure to appear for an independent medical examination (IME):

[Plaintiff insurer’s] its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR § 65-3.5[b], [d]) governing the timeframes for scheduling IMEs … .. Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under (11 NYCRR) § 65-3.5(b) and (d) …  American Tr. Ins. Co. v Alcantara, 2022 NY Slip Op 01871, First Dept 3-17-22

Practice Point: An insurer must show compliance with the regulatory timeframes for scheduling an independent medical examination (IME) before it will be entitled to summary judgment based on an insured’s failure to appear at an IME.

 

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