Premises Pointers - Volume I, No. 2

Premises Pointers
Watch your step!


Volume I, No. 2

Saturday, July 15, 2017

A Monthly Electronic Newsletter


As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.


If you know of others who may wish to subscribe to this free publication, or change your subscription status, please contact Jody E. Briandi at [email protected] or call 716-849-8900. All issues of Premises Pointers are listed on the firm website at

Jody E. Briandi
[email protected]



Todd C. Bushway

[email protected]




V. Christopher Potenza

[email protected]


Tessa R. Scott

[email protected]


Anastasia M. Stumpf

[email protected]


James L. Maswick

[email protected]





Retail, Restaurant and Hospitality Industry

Slip and Fall Accidents

Snow/Ice Claims and Storm in Progress

Inadequate/Negligent Security

Inadequate Maintenance

Negligent Repair

Defective and Dangerous Conditions

Elevator and Escalator Accidents

Swimming Pool and Recreational Accidents

Dog Bites/Animal Liability

Negligent Supervision

Assumption of Risk

Limited Services Contracts

Indemnification Agreements

Tavern Owner Liability and Dram Shop

Homeowner Liability

Toxic Exposures




Wow!  The response to our first edition has been wonderful.  Thank you for all of the e-mails and notes.  Keep them coming.  I had a hunch Hurwitz and Fine’s latest newsletter would catch on quickly given all of the topics under the umbrella of premises liability.  I think you are going to find this issue as insightful as our first one.  In addition to our monthly columns covering cases, in this issue you will find an article that Anastasia and I recently authored, entitled, Managing Active Shooter Liability a Growing Concern for Businesses.”  While the subject matter is a difficult one, it is an unfortunate reality that needs to be addressed with regard to the liability implications for business and commercial property owners. 


Another noteworthy feature this month is Todd’s trial report.  He just completed 2 premises liability trials, one in Niagara County before Judge Sara Sheldon and one in Erie County before Judge Mark Grisanti.  He will provide highlights from each one, which I think you will find very informative. 


As a follow up to my “personal note,” I received some flak from my husband, a local dentist and business/premises owner himself (he owns the building where the dental practice he operates is located), when he read last month’s newsletter.  He wondered why I named our 3 children (Massimo, Ava and Salvatore), but not him and also why I left the dog out.  In an effort to restore the peace at home, his name is Sal and our 9 pound toy fox terrier is named Ace.  I can also report we have our first summer vacation in the books.  While walking the grounds of Universal Studios in Orlando with temperatures in the upper 90’s is not exactly relaxing, the kids had a ball exploring the Wizarding World of Harry Potter.  I will also note that as an attorney who focuses on premises liability, my antennas were up as I navigated the parks and considered all of the potential liability issues presented from the rides and attractions to the restaurants, shops and parking lots. The possibilities are endless!


Please feel free to share this newsletter with friends and colleagues who would find it useful. We would love to add new subscribers!  If you are interested in being added to our subscription list, just send me an e-mail at [email protected].  We are also available to provide training to any and all that may want some, on any premises liability topic, in person or as a webinar. Please call or email if this is of interest to you and your team.


Thank you!







Hurwitz & Fine, P.C.


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Retail, Restaurant and Hospitality Happenings Around New York State

By: Jody E. Briandi [email protected]


05/31/17          Taub v. JMDH Real Estate of Garden City Warehouse, LLC, et al.

Appellate Division, Second Department

Summary Judgment denied to store in falling merchandise case.

Typically, falling merchandise cases are difficult to defend and this case is no different.  Plaintiff was shopping at a store owned by defendant when several cases of cooking oil fell from a wooden pallet while being transported with a hi-lo device hitting his head.  Defendant moved for summary judgment on the grounds it maintained its premises in a reasonably safe condition and did not have notice of the condition that resulted in plaintiff’s injury.  In denying the motion, the court concluded there were triable issues of fact as to whether defendant created an unreasonable risk of injury to removing pallets of merchandise from high shelves during business hours without warning the plaintiff to keep a safe distance away, thus the lack of warning to the customer of the activity going on, i.e. the transport of the product, seemed to be what the court based its decision on.

06/08/17          Amiano v. Greenwich Vil. Fish Co., Inc.

Appellate Division, First Department

Plaintiff who choked on fish bone was barred from bringing claim based on “reasonable expectation doctrine.”

Plaintiff choked on a fish bone while eating a filet of flounder. The Appellate Division ruled that plaintiff’s negligence claim should have been dismissed based on the “reasonable expectation” doctrine because the bone on which plaintiff choked was not a “harmful substance” that the plaintiff would not anticipate.  As explained by the Court in the 1993 case of Vitiello v. Captain Bill’s Restaurant, “the injured plaintiff had no right to expect a perfect piece of fish and that “everyone knows that tiny bones may remain in even the best filet of fish.”

06/21/17          Rivera v. Target Corporation

Southern District of New York

Plaintiff’s failure to offer evidence that the condition at issue existed for a sufficient amount of time prior to the accident to allow defendant to discover and remedy it resulted in the dismissal of the action.

The defendant’s decision to remove this slip and fall case to Federal Court from New York State Supreme Court resulted in a more favorable burden of proof analysis under for defendant, thereby increasing defendant’s chances on summary judgment.  The facts of Rivera are simple and quite typical.  Plaintiff claims she fell in a puddle of water that she did not see or encounter before her fall.  Thus, she had no knowledge where it came from or how long it had been present on the floor before her fall.  The Court in Rivera explained that under Rule 56 of the Federal Rules of Procedure, “a defendant’s motion in a premises liability case will ordinarily be granted unless plaintiff offers evidence sufficient to create a genuine issue of act that defendant had actual or constructive notice of the allegedly dangerous condition.”  Since the plaintiff could not produce any evidence of notice to defendant, her complaint was dismissed. It is possible had these same facts and argument been presented in New York State Court, a different result would have been reached, which the next case illustrates.


06/21/17          Lebron v. 142 S 9, LLC, et al.

Appellate Division, Second Department

Summary judgment denied to defendant even though plaintiff presented no evidence proving constructive notice.

Like in Rivera, the plaintiff claimed she slipped and fell due to water on the floor.  The defendants moved for summary judgment on the grounds they lacked notice of the water.  In support of the motion, while defendants offered evidence of general cleaning practices and inspection procedures, they did not offer proof of any specific cleaning or inspection of the area in question.  The Court denied their motion and held that “defendants cannot satisfy their burden on summary judgment merely by pointing in the plaintiff’s case.”

06/21/17          Curran v. 201 West 87th Street, L.P.

Appellate Division, Second Department

Building owner not liable for alleged negligence of deli employee

Plaintiff was allegedly injured when he fell through a trap door while walking into a deli operated by defendant Deli & Group Corp., which leased the premises from Jazz Hotels, Inc., which leased the premises from the owner defendant 201 West 87th Street, L.P., who was the owner of the premises.  Defendant Deli & Group Corp. obtained summary judgment based on evidence it was an out of possession landlord.  Yet, the owner’s motion was denied based on a theory of constructive notice because it reserved the right “to conduct structural renovations on the building.”  (see Curran v. 201 West 87th St., L.P, 2014 NY Slip Op 33145(U)).  The Appellate Court determined the owner was entitled to summary judgment based on evidence the trapdoor itself was not defective or unsafe, but only became unsafe when a deli employee left it open.  Since the owner was not responsible for the actions of the deli employee, and no evidence submitted of structural defect, the Court ruled that its motion for summary judgment should have been granted and therefore reversed the order of the Supreme Court, Queens County, Judge Lane.


06/29/17          O’Sullivan v. 7-Elevan, Inc.

Appellate Division, First Department

Defendant store owner was not required to provide a constant remedy for an alleged slippery condition during an ongoing snowstorm.

Here, plaintiff claims she tripped and fell due to slush that had accumulated in front of a counter in a 7-Eleven store during an ongoing snowstorm.  In support of its motion for summary judgment, defendant demonstrated it took reasonable steps and maintenance measures to address the snow and slush tracked into the store by customers during this winter storm, which included laying out a mat, placing an orange cone on the floor and regularly mopping the floor during the day, with the last time being 15 minutes before the plaintiff’s fall.  The Court determined that summary judgment was appropriate based on these facts and relied heavily on a “storm in progress” type of argument.



Negligent Supervision, Municipal Claims, Assumption of Risk and Limited Services Contracts

By: Todd C. Bushway [email protected]


Since last month’s inaugural edition, I’ve had the pleasure (?) of taking two premises related cases to verdict – one in Niagara County and one here in Erie County.  Both cases were bifurcated and the trials addressed liability only.  We won one and lost one, although if I was a betting man, I’d have figured the winner was the loser and loser the winner. 

In the Niagara County case, we represented a homeowner in a lawsuit arising from a fall at the clients’ home, which was then under construction.  Plaintiff was an acquaintance who had volunteered his “expertise’ to the homeowner, who had undertaken the installation of wiring needed for both separate surveillance and home audio systems.  There were several different descriptions of the physical layout where plaintiff fell, as well as vastly different deposition testimony by the plaintiff and the homeowner about when plaintiff was on the site and what he was doing when he fell.  After jury returned a full defense verdict, the judge spoke privately with the jury and later reported to us that the primary basis for the verdict was (1) that plaintiff had lied on the stand – his trial testimony differed materially from his deposition, with no real explanation other than an very unconvincing “my recollection is different now, it was a long time ago” and (2) the plaintiff’s statement that he did not read his deposition transcript to prepare for trial, which did not sit well with a jury that had given up more than a week of their time.

There was no such luck in the Erie County case, which involved a claim against a school district.  Plaintiff was a student walking to class in a hallway when he was by the outward opening door from a single use bathroom. Plaintiffs argued that the outward swinging door was a hazard, and that since it was feasible to reverse the swing of the door, the district was negligent for failing to change the doorway.  The building was constructed in 1958 and the building code from that time was silent on the swing of doors such as the one at issue and no code or standard had required the district to change the door swing from its original construction.  Plaintiffs’ opined that the outward swinging door served no purpose and was contrary to good architectural practices.   There were also fire doors for the school’s auditorium and cafeteria in the same hallway, which plaintiffs’ expert architect conceded were required by fire and building codes to open outward and that had plaintiff been struck by one of those doors, he would not opine that the school district was at fault.   This case is one where both sides had valid arguments and where a different jury on a different day might reach the opposite result.

The takeaway, besides two more trials in the bag:  (1) facts can be tough, and (2) lying rarely ends well.

On to the cases.  The courts have been quiet on cases addressing limited service contracts and primary assumption of risk.  There are two cases involving negligent supervision claims against school district, both from the Appellate Division, 2nd Department.  The first, DM v. Center Moriches Union Free School District, 2017 WL 2662430, (2nd Dept. June 21, 2017), looks at the question of notice to the school district in reviewing an application to serve a late notice of claim.  The second case, Guerriero v. Sewanhaka Central High School District, 150 A.D.3d 831 (2nd Dept. May 10, 2017) provides a thorough overview of the common law that apply to claims against a school district when the claim arises from a fight between two students.

Negligent Supervision - School District Cases:

There are two cases to review, which while arising from differing procedural postures, touch upon the question of notice.  The law is fairly settled in this area, making the review of current case law noteworthy for how the court applies that settled law to the particular facts at issue.



06/21/17          DM v. Center Moriches Union Free School District

Appellate Division, Second Department

Proof of Notice When Seeking to File a Late Notice of Claim.

As most of you probably know, a jurisdictional predicate to a personal injury claim against most municipal entities in New York is the filing of a Notice of Claim with the municipal entity with 90 days of the underlying event. The law does allow for a claimant who has missed that deadline my petition the court to serve a late Notice.  (See generally General Municipal Law § 50–e).  Among the factors a court is to consider is whether the municipal entity had notice of the potential for a claim against it and whether it has been prejudiced in defending the claim because of the late notice, an issue that is often tied to Notice.  In this matter, 11 months after the student fell from a pull-up bar in a gym class, the claimants sought to serve a late notice of claim upon the respondent school district. As a result of the fall, the student sustained both a laceration to his head and a broken wrist.  A medical claim form was submitted 4 days after the accident.  The proposed claim included both allegations of negligent supervision as well as claims directed at the condition of the pull up bar.  Neither age of the student nor what, if anything, actions the gym teacher took in the aftermath of the incident.


In rejecting the application to serve the late notice, the court highlighted the well-established case law that holding that where an event and injury could have occurred without culpability by the school or its personnel, the mere fact that the school had notice of the accident and injury did not give it notice of a potential claim.  The Court held:

Contrary to the petitioners' contention, the medical claim form did not provide the School District with actual knowledge of the essential facts underlying the petitioners' claims that, inter alia, it was negligent in its ownership, operation, management, maintenance, and control of the area where the accident occurred, that it was negligent in its hiring, training, and supervision of its employees and agents, or that its employees were negligent in supervising the injured petitioner and responding to the accident.


I was surprised that a documented gym class accident that resulted in a broken wrist and cut to the head, which one would assume resulted in immediate action by the school to care for the student, was not enough, even apparently in today’s litigious environment, to give the district notice that it might face a claim and allow the claim to survive.  Unless there was a change to the pull-up bar or some destruction or loss of records relating to maintenance and upkeep, it would also seem difficult to argue the district was prejudiced in investigating at least that part of the claim.

05/10/17          Guerriero v. Sewanhaka Central High School District

Appellate Division, Second Department

Fights and Physical Altercations

A staple of claims against school district are those arising from physical altercations between students, a type of case that is likely to remain prominent considering the recent and justified focus on bullying.   The Appellate Division, 2nd Department’s decision in provides a concise summary of the standards applicable to these types of cases.  Guerriero arose from a fight between two high school students that occurred in a classroom as students were making their way into the class and with a teacher present.  The plaintiff claimed that he was pummeled for 1½ -2 minutes before the fight was stopped.   The plaintiff also claimed that he about a month prior to the fight that he had reported to his teacher that the other student had slapped him in the head and pushed his head into his desk.  The case is silent on whether the school acknowledged this claim or if any steps were taken in response to the complaint.


The district moved for summary judgment on the basis that it (1) had no prior notice of any issue or conflict between the students and that (2) the incident was a spontaneous incident that it could not have prevented and that (3) the plaintiff have voluntarily entered into a fight.


The court discussed each element of the claim, setting for the controlling law for each element of the claim.  After reviewing the facts against the controlling law, the court rejected the motion and found a question of fact on all three arguments raised by the district. 


The initial issue for any claim such as this is whether the district had notice of the potential for problems between the students, such that it should have taken steps to minimize or eliminate conflict.  The basic standard for prior notice is:


  • Where the complaint alleges negligent supervision [against a school district] due to injuries related to an individual's intentional acts, the plaintiff generally must demonstrate that the school [district] knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable.


  • Actual or constructive notice to the school of prior similar conduct is generally required because school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students on a daily basis


The standard for assessing a claim that the event was spontaneous:


  • An injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act.


  • Even if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained.


  • Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury


On the question of whether a willing participant:


  • Liability from injury caused by a fight cannot be predicated upon supervisory negligence if the plaintiff voluntarily entered into the fight”



I would like to know more about the exact details of the prior incident when compared to the altercation that lead to the lawsuit before passing judgment on what type of notice the district might have had and, if anything, what the school did in response to the prior report.


I am not surprised by the rulings on the spontaneity of the event and whether plaintiff was a voluntary combatant.  It is clear that the deposition testimony on the details of the altercation differ, creating a certain question of fact.



Toxic Exposures

By: V. Christopher Potenza [email protected]


I hope everyone enjoyed some down time last week.  While the Courts were slow, family activities were not.  Dozens of Potenza’s descended last week from across the globe for a week of Fourth of July/ Canada Day celebrations on the shores of Lake Erie in Crystal Beach, Ontario.  They came from Rome (Italy), Texas, California, and everywhere else in between, all wondering why they left in the first place.  I now know how the phrase “I need a vacation from my vacation” originated, however.

For those of you with pending asbestos cases in the Fifth Judicial District (Herkimer, Jefferson, Lewis, Oneida, Onondaga, and Oswego counties), Justice Charles Merrell will no longer be handling the asbestos docket as of September 1, 2017.  All asbestos cases are being transferred to Justice Andrew McCarthy.  Justice McCarthy is no stranger to asbestos litigation as he handled these cases for a good decade before Justice Merrell took over the docket a few years back.   While there should be little change in how these cases are handled, the status of active trial dates in 2017 and 2018 are in flux as Justice McCarthy flushes out his calendar.

As for toxic tort decisions this month, its slim pickings.  The First Department weighed in on a claim of inadvertent disclosure of attorney-client privilege documents in an asbestos claim, while the Fourth Department addressed the liability of a municipality in a negligent lead-paint abatement claim.


06/15/2017      In re New York City Asbestos Litigation, Warren v. Amchem Products, et al.

Appellate Division, First Department

First Department finds that defendant in asbestos litigation did not waive attorney-client privilege in inadvertent disclosure of un-redacted document.

The New York County Supreme Court had denied defendant J–M Manufacturing Company, Inc.'s (J–M) motion to vacate the special master's recommendations finding that J–M had waived attorney-client privilege as to a redacted and un-redacted memorandum created by in-house counsel for J–M in the 1980's. In 2003, J–M's litigation counsel discovered the inadvertent disclosure of the un-redacted version of the memorandum. In response to correspondence demanding its return, plaintiff's counsel forwarded the document and advised that it had not been disseminated to anyone outside of their firm. Nevertheless, that memorandum, as well as a redacted version of that memorandum, continued to appear in various litigation throughout the country.


The First Department held that J–M demonstrated that it had not waived the privilege as to the un-redacted memo. J–M continually objected to the use of the un-redacted version. The public availability of the document and J–M's lack of success in obtaining a protective order does not warrant a finding that J–M waived the privilege.



06/16/2017           Moore v. Del-Rich Properties, Inc.

Appellate Division, Fourth Department

Fourth Department finds that municipality is not immune from liability for negligent lead-paint abatement performed at private residence pursuant to government program.

Plaintiff commenced this action seeking damages for injuries her grandson allegedly sustained as a result of exposure to lead paint while he was visiting and then residing with plaintiff in an apartment owned by defendant Del–Rich Properties, Inc. (Del–Rich). After it was discovered that there were dangerous levels of lead paint throughout the structure, Del–Rich applied to enroll in the Lead Hazard Control Project (Project), which was a federally-funded grant program designed to address the high rate of lead poisoning in and around defendant City of Buffalo (City). Employees of defendant City of Buffalo Urban Renewal Agency (BURA) helped manage the Project, and properties enrolled in the Project would receive lead abatement work performed by contractors chosen by the Project.

The lead abatement work was performed at plaintiff's apartment in or around February 2000.  However, dangerous levels of lead were again detected in April 2001.  Plaintiff alleges that the City and BURA (collectively, defendants) are liable for negligent lead abatement.


The City and BURA both contended that they were not negligent as a matter of law; that plaintiff could not establish liability against a government entity because plaintiff could not establish a special relationship; and that the defendants were immune from suit because their actions were discretionary.  Plaintiff cross-moved for partial summary judgment on the issue of negligence against the defendants.

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties.  The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred. 


If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a ‘special duty’ to the injured party ... It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself. 


Finally, even if plaintiff can establish a special duty or relationship, defendants may nevertheless be entitled to dismissal of the claims under the “governmental function immunity” defense, which provides that even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority. 


The Fourth Department affirmed the ruling of the Supreme Court determining that defendants were acting in a proprietary capacity as a matter of law. The acts and omissions of defendants essentially substitute for or supplement traditionally private enterprises.  Contrary to defendants' contentions, they did not merely inspect the premises and order that abatement work be performed. Indeed, they coordinated and oversaw the entire abatement process at plaintiff's residence. It is well established that maintenance and care related to buildings with tenants is generally a proprietary function.  The Fourth Department determined that the defendants voluntarily assumed the homeowner's duty to remediate the lead paint at plaintiff's residence.


Contrary to defendants further contentions, they may be liable for affirmative acts of negligence, such as negligent lead paint abatement, notwithstanding a lack of ownership, and there are triable issues of fact whether the abatement was negligently performed, causing plaintiff's grandson to sustain additional injuries after the abatement was performed.  The Fourth Department further held that that the Supreme Court properly granted in part plaintiff's cross motion for summary judgment, determining as a matter of law that defendants' actions were proprietary and therefore not subject to governmental immunity. 


Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]


Dear Readers,


This edition we have three cases of interest regarding home owner liability.  The most interesting to me is Cummings v Manville which concerns an owner’s liability to recreational ATV users who may cross her property.  There is this exceptionally useful statute which states (subject to some exceptions) that a landowner does not have a duty to warn of hazardous conditions, or keep the property safe for recreational ATV users.  The purpose of the statute is to encourage recreational activities without opening up landowners to liability should a recreational ATV user cross their land.  This only makes sense, really, because it would be unduly burdensome for a landowner to upkeep their land for ATV users who may, or may not cross their property. 


The real rub here is how courts apply this exception. There are three elements an owner must show to qualify for the exception 1) that they own, lease, or occupy the property; 2) that plaintiff was engaged in a recreational activity; and 3) that the property was suitable for recreational use.  The first two seem pretty straightforward, but the third qualification is a little less clear.   In Cummings the Fourth Department attempts to clear the air.  It reviews prior decisions to guide it and determines that the land in question could not be suitable for recreational use, because it primarily served a residential purpose.  Now, that sounds pretty good, but after considering the conditions of the property, I am unconvinced. 

I tend to agree with the dissent, and maybe that is because my father is a farmer.  The dissent noted that there were three homes which were connected by the gravel road that plaintiff was traveling on when he got injured.  There was no denying that ATV use was common in the area, and maybe even on that road.   Additionally, the road itself needed yearly re-leveling by the defendant homeowner.  The dissent determined that the mere fact that the road was used for residential purposes did not preclude its use by recreational vehicles.


I would love to hear if you disagree with me, have a question about any of the other decisions, or you want to discuss a premises matter that has been keeping you up at night. Feel free to contact me at [email protected] or give me a ring at (716) 849-8900. 






04/01/17          Cristescu v Gasparis

Appellate Division, second Department

Where there is smoke… there may be liability.

Here, the plaintiff allegedly was injured when upon waking to a house fire, he was forced to run through the flames to exit through the front door of the apartment. The plaintiff brought an action against the building claiming that it was negligent in failing to install a smoke detector in the apartment. The defendants moved to dismissing the complaint, arguing that there was a smoke detector inside the apartment and that plaintiff failed to offer any evidence that the lack of smoke detector proximately caused his injuries.


In support of its motion, the defendants submitted contradictory evidence as to whether a smoke detector was installed in the plaintiff's apartment. This alone created a question of fact which precluded summary judgment.  Furthermore, defendants failed to establish that the absence of a smoke detector was not a proximate cause of the plaintiff's injuries.


05/31/17          Fallati v. Concord Pools, Ltd  

Appellate Division, Second Department

A Homeowner Does Not Have A Responsibility To Protect Or Warn Against Open And Obvious Conditions.

The plaintiff allegedly tripped and fell over an exposed tree root in a common area located in the side yard next to a condominium unit that she leased with her husband. The injured plaintiff, and her husband brought an action against the owner and manager of the condominium complex.


It is well settled that a landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others.  However, a landowner does not have a duty to protect or warn against an open and obvious condition that is “inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.”


Unfortunately the Second Department did not use this opportunity to expound on the evidence needed to establish that a condition is open and obvious.  The Second Department ultimately determined that the defendants did meet their burden to show that the tree root was open and obvious and “known” to the plaintiff.  


07/07/17          Cummings v Manville

Appellate Division, Fourth Department

When Is A Property Deemed Suitable For Recreational Atv Use Under General Obligations Law?!  

This is a long and windy decision which sheds some light on the continued confusion surrounding recreational ATV use.  I have significantly cut it back in hopes of keeping your attention.


In this case, Plaintiff sustained personal injuries when visiting his friend’s house on Walker Lake Ontario Road in Hamlin, New York. Plaintiff brought, for the first time, his four-wheel all-terrain vehicle (ATV). His friend’s house could only be accessed only by a private gravel road owned by defendant, Masville. Plaintiff traveled down defendant's gravel road and intended to cut back into his friend’s backyard. While traveling on defendant’s road plaintiff struck a pothole, which caused his wheel to jerk sideways, throwing him from the ATV.


Defendant moved for summary judgment on the grounds that he was immune from liability pursuant to General Obligations Law § 9-103. Subject to certain exceptions the statute provides that owners/lessees/occupants owe no duty to keep the premises safe for entry or use by others for recreational ATV use, and do not owe a duty to warn of hazardous conditions.  The purpose of the statute is to encourage recreational activities without opening up landowners to liability should a recreational ATV user cross their land.


As you may guess that is a pretty excellent defense to have for a landowner.  The trick is getting it to apply to you.  To escape liability a defendant must satisfy the following elements: 1) defendant must own, lease or occupy the property, 2) show that plaintiff was engaged in a specified recreational activity, and that the property was suitable for recreational use.  In this case the only factor at issue in this was whether defendant established that the road is suitable for the recreational.


Now comes the hard part: analyzing whether land is suitable for a specific recreational use.  Courts look to whether the portion of the land on which the plaintiff was injured was suitable for that particular activity.  Courts have some grappled with this issue quite a bit.  Some courts indicate that it is the general use of the property as a whole; others look to the specific area where the recreational vehicle was used.  Additionally, courts consider if the property is the "type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation." 


The Fourth Department centered its analysis on this consideration.  In this case, the Fourth Department was swayed by the history of use of this particular plot of land. The Court noted that the road where the accident occurred was the sole means of access to Walker Lake Ontario Road for three homes indicating that it was “residential, as opposed to recreational in nature.”  Furthermore, The Fourth Department was persuaded by Plaintiff’s affidavits, including an affidavit from a nearby homeowner, stating that the road was residential and that they had no recollection of the road being used for ATVs or snowmobiles.  The Court concluded that to apply the exception to defendant would impermissibly broaden the application of the statute.


But Wait! There is more! The Fourth Department’s decision was by no means unanimous! Judge Peradotto and Judge Smith disagreed.   The dissent pointed out that whether a parcel of land is suitable for this exception is a question of law to be decided by the court.  The dissent noted that “the evidence establishes that the private access road where the accident occurred is physically conducive to the operation of an ATV.”  To that end the dissent pointed out tha Plaintiff and the homeowner did not dispute that there was past recreational use of the road by ATV riders.


The dissent further disagreed with the majority's conclusion that the road was not appropriate for public use for the recreational operation of ATVs to access adjacent areas. “Here, the presence of three residences along the private gravel access road that is adjacent to a pond and wooded area and other undeveloped areas does not preclude its suitability for recreational use…”




Snow and Ice, Storm in Progress, Tavern Owner/Dramshop Liability and Other Timely Topics

By: Anastasia M. Stumpf [email protected]


Dear Readers,


As Jody mentioned, we recently authored an article about how corporate clients, particularly retailers and those in the hospitality industry, may work to prevent and limit liability stemming from active shooting incidents.  I have included a copy of the article, entitled Managing Active Shooter Liability a Growing Concern for Businesses below, but before we get there, I thought I’d provide some expanded commentary on negligence cases arising from the intentional, criminal acts of third persons. 


Generally, a property owner is not considered legally responsible for the criminal acts of a third party unless the criminal activity was foreseeable.  In reviewing New York State case law on this topic there are two major takeaways—first, when reading these cases linearly, Courts throughout the state seem to view “foreseeability” with an ever-expanding lens.  Indeed, modern cases will take news coverage and common knowledge of global events into account in determining whether a violent crime was foreseeable.  Second, not only is the amorphous concept of foreseeability constantly changing, but it is also clearest in hindsight.





06/29/90          Maysonet v. KFC

U.S. Court of Appeals, Second Circuit

It was not foreseeable that a panhandler would stab restaurant patron because panhandler had not exhibited any dangerous propensity.

Plaintiff, a customer at a KFC, was stabbed by a panhandler inside the subject-restaurant.  The Second Circuit affirmed that, under New York law, the assault could not be considered foreseeable because the store did not have notice of the assailant’s dangerous propensity.   In his attempt to establish foreseeability, Plaintiff alleged that he had been to this particular KFC store numerous times and that during his visits he had seen loiterers harassing patrons.  When he entered the store on the date of the incident, he witnessed a panhandler “bothering and harassing” customers, begging for money, and “crazy laughing.”


In a very traditional and narrow analysis, the Second Circuit reiterated that a duty of care on the part of a property owner will not arise unless Plaintiff establishes that the Defendant either knew, or had reason to know from past experience, that third persons were likely to endanger the safety of visitors. The Court conceded that “foreseeability” may be imputed from a history of criminal activity in a particular building or where third-party behavior is such that an ordinarily prudent person would deem it hazardous.  Placing particular weight on the absence of prior, similar incidents on the premises, and on the fact that none of the restaurant’s employees had witnessed the assailant’s bizarre behavior, the Court held that the stabbing was sudden and unforeseeable.   Therefore, while KFC generally had a duty to act reasonably to prevent harm to those visiting the store, there was insufficient proof showing that KFC was aware of the need, or that it had an opportunity to control, the assailant.



05/06/90          Jacqueline S. v. City of New York

New York Court of Appeals

The Court slightly expanded its analysis by examining the criminal history of an entire public housing complex as opposed to only the apartment building where a kidnapping and sexual assault occurred.

The Court held that triable issues of fact existed as to the foreseeability of a sexual assault that occurred in an apartment building.  Plaintiff produced evidence that her apartment building and entire apartment complex had a long history of violent and drug-related crime. Evidence included the testimony of a housing authority police officer who had responded to numerous reports of forcible rape and robberies in the complex; the testimony of a building superintendent who had witnessed drug paraphernalia throughout the property as well as the constant presence of vagrants and intruders; and evidence of tenant complaints about unlocked doors, including the doors to the lobby, roof, and utility rooms.  Ultimately, the Court determined that it could consider evidence of any crime occurring in the housing complex at large, regardless of whether such crimes had occurred in the structure in which Plaintiff herself had lived or “were of the same type of criminal conduct to which Plaintiff was subjected.”  Indeed, the Court clarified  “[w]e have never adopted the restrictive rule urged by defendant and apparently embraced by the Appellate Division:  that to establish the foreseeable danger from criminal activity necessary for liability, the operative proof must be limited to crimes actually occurring in the specific building where the attack took place.”


09/08/99          Schaeffer v. Vera Wang Bridal House, Ltd.

U.S. District Court, Southern District of New York

Court considers broad range of evidence on the issue of foreseeability including local media reports of similar crimes and a history of crime in the geographical area.

Plaintiffs brought a lawsuit against a bridal house, alleging that it failed to provide adequate security, after Plaintiffs were shot during an armed robbery on the premises.  The incident was part of a crime spree perpetrated by “the Bistro Bandits”.  Notably, the crime spree, including the modus operandi of the perpetrators, received exhaustive media coverage.  In determining that Plaintiff’s had raised a triable issue of fact with regard to foreseeability, the Court determined that Defendant should have known about the danger of robberies because similar crimes had happened in the same geographic location and because “the Bistro Bandits” crime spree had been well-documented by the local press. 


01/20/04  In re World Trade Center Bombing Litigation

Supreme Court, New York County, New York

Court considered evidence that Defendant had knowledge of an increasing use of car bombs, both domestically and internationally, as well as Defendant’s knowledge that the World Trade Center was an ideal target for terrorism, to determine that a terrorist attack in the parking garage of the World Trade Center could be deemed foreseeable.

Plaintiffs brought a lawsuit after the 1993 terrorist bombing in the World Trade Center parking garage.  Plaintiffs specifically alleged that the New York Port Authority had provided inadequate security.  In rendering a decision on foreseeability, the Court examined an extremely wide range of evidence, including evidence that it was common knowledge that terrorist bombings were becoming more prevalent throughout the 1980s as well as written reports and studies produced by various committees and planning groups enlisted to study terroristic threats that could impact the World Trade Center.  The Court noted that foreseeability requires “an examination of what the landlord actually knew as well as what it reasonably should have known.  This does not require the landlord to have had a past experience with the exact criminal activity, in the same place, and of the same type before liability can be imposed for failing to take reasonable precautions.”  Significantly, the Court also drew a parallel to the 2003 case of Gross v. Empire State Bldg. Associates, which determined that bomb threats constitute criminal activity sufficient to raise an issue of fact as to foreseeability even when the underlying tort involved a shooting and not a bomb. 


            Based on the Court’s ever-widening evidentiary scope, it seems clear that foreseeability is increasingly likely to be an issue of fact for a jury and unsuccessful on summary judgment.  In light of this, business owners can, and should, take action to reduce its overall risk the liability.


Managing Active Shooter Liability a Growing Concern for Businesses


By Jody E. Briandi and Anastasia M. Stumpf


            It seems like hardly a week goes by without the report of an incident of mass violence. Whether it is an act of foreign or domestic terrorism, a disgruntled employee, or a seemingly random act, many of these horrible incidents have one thing in common—they frequently occur in public places such as businesses, malls, schools, outdoor venues, and other gathering spaces.


            The FBI defines an active shooter as “an individual actively engaged in killing or attempting to kill people in a confined and populated area.” According to recent materials released by Homeland Security, active shooting incidents have occurred where we shop, where we exercise our free speech, where we learn, and where we work. Recent incidents have included the 2007 Utah mall shooting that left five people dead and several injured; the 2011 shooting of U.S. Representative Gabrielle Giffords at a public market, leaving six people dead and three injured; the 2007 Virginia Tech shooting which killed 32 people; the 2008 Northern Illinois University shooting which resulted in five deaths; and the 2010 killing of eight people on the premises of a beer distributor.


In light of this widespread problem, the FBI recently conducted a study of active shooter incidents that occurred between 2000 and 2013. The study revealed that, during that time, there were 160 reported active shooter incidents in the United States, 70% of which occurred in places of commerce and/or educational facilities.


Where Does Liability Start and End?


The FBI’s 2013 study indicates that businesses, especially those open to pedestrian traffic, are particularly vulnerable to active shooter violence. Given this clear vulnerability, business and premises owners, such as retailers, schools, shopping centers, government offices, and the like must first understand how they may be liable for loss of life and personal injuries sustained in shooting incidents and second, develop, implement, and enforce policies and procedures to reduce liability.


As New York law currently stands, a business owner will not be liable for attacks that were unforeseeable. Therefore, while a business owner may be responsible for negligently hiring a person known to be potentially dangerous, or for violence that they could have reasonably anticipated, they will not be legally responsible for that which they could not have reasonably anticipated. Unfortunately, the inherent problem with this legal standard is threefold —not only is the term “foreseeability” widely open to interpretation, it is also clearest in hindsight and frequently complicated by ever-present publicity and media coverage that, on some level, puts all of us on notice of the prevalence and possibility of such events.


Be Prepared: Develop a Plan, Policies and Procedures


Recognizing these potential liabilities, the prudent business owner will develop, implement, and enforce corporate policies and procedures aimed at protecting against and responding to violent incidents. In preparing for the worst, FEMA advises that businesses develop policies and procedures aimed at preventing violence before it occurs, as well as emergency action plans aimed at minimizing potential losses during or after an incident.  Prevention policies may center on the documenting and reporting of threats received, employee background checks, a system for reporting concerning and/or violent behavior exhibited by employees or customers, and providing employees with access to mental health counseling. Particularly prudent companies may also engage hired experts for threat assessments and assistance in developing preventative and reactionary emergency plans. 


An effective emergency action plan will provide a procedure for documenting and reporting known threats and active incidents to law enforcement, emergency response training for employees, and evacuation policies and procedures. For businesses open to the general public, it is important to account for all types of customers and employees, including those with hearing and sight impairment, mobility issues, or people with limited (or no) proficiency speaking English. Such preparation may include emergency signals with light and sound components, as well as handicap-accessible emergency exits. The failure to adopt such policies and procedures based on the current environment could result in a determination that the business owner did not take reasonable and appropriate steps to ensure a safe environment for those frequenting the premises.


Practice Makes Perfect: Ensure Compliance

            Devising a plan is only half the battle. After developing the necessary preventative and emergency plans, it behooves the corporate client to enforce its policies and procedures, to host regular training, and to contemporaneously document its compliance. A record of the business owner’s compliance with their prevention and/or emergency response plan is essential. Ultimately, a business owner will want to establish that they provided their personnel with all relevant information and training and took all proper precautionary steps. Such diligent record keeping will assist a business owner if and when they are required to defend the business venture in a liability lawsuit.


As the law currently stands, a business owner is not liable for attacks that were unforeseeable. The law, however, is constantly evolving and foreseeability itself is an ever-changing term that is likely to become more complex in today’s climate of mass violence. Corporate entities, particularly those who regularly invite members of the public into their facilities, would do best to consult experienced counsel when crafting policies and procedures aimed at reducing liability.






The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


            Finally, July is upon us, having left the rains of June behind!  Maybe you are traveling for the summer, heading to the airport.  What will you encounter?  Escalators!


Last month I focused on the application of res ipsa loquitur (do you remember what it means?  See below if you do not!) in elevator mis-leveing accidents.  This month, I am going to focus on the application of this principle to recent cases involving accidents involving escalators.  Escalators are pretty awesome when you are a kid; I remember refusing to step off of the escalator once it reached the new floor it was taking you to and instead, allowing the escalator to simply slide my sneakers onto the platform.  8 year old me thought this was really cool.  My grandmother?  Not so much, her understandable concern rooted in my inability at the time to keep my shoelaces tied for more than 5 minutes.  And then there was the fun in running up a downward moving escalator.  Nana was not a fan of this behavior either, but again, when I was 8, this seemed like the best way to demonstrate how fast I could run.  She also did not like me propping myself up by my arms on the moving handrails and letting my feet dangle as I went down the escalator.  But Nana, look at how strong I am!


Escalators can be very effective at moving a number of people from one floor to the next in an efficient manner, but can also lead to injuries.  Anyone who has used one to access or exit the New York City subway system has experienced the inevitable tourist who exits the escalator and then fails to vacate the ground immediately at the base of the exit.  This can lead to pile ups, as those exiting behind said tourist have nowhere to go.  Escalators can start and stop without warning as well.  They can begin running one direction and then moving in the opposite direction.  The cases that we look at in this edition will address some of these issues!


I am pleased to report to you, loyal reader, that I have cleaned up my escalator behavior since I was 8 years old and ride like a normal adult.  Most of the time, anyway.  Well, at least I make sure my shoes are tied now!


Please feel free to contact me if you have any questions, comments or just to say hey – [email protected] or (518) 523-2441.


ANSWER TO ABOVE:  res ipsa loquitur is a Latin phrase which means “the thing speaks for itself”.


06/28/17          Ramjohn v. Port Authority of New York

Appellate Division, Second Department

Defendants’ Motion to Dismiss Denied and Case to be Submitted to Jury on Res Ipsa against Airport

Plaintiff, an airport employee, was at LaGuardia Airport and was allegedly walking up a stopped escalator which normally traveled in an upward direction.  Suddenly, it moved in a downward direction.  Plaintiff was injured and about 30 seconds later, saw a Port Authority employee carrying “some sort of tool” and told her that he was going to lock the escalator.  Plaintiff commenced an action against escalator maintenance contractor, Schindler Elevator Company, and the Port Authority and each of the defendants moved for summary judgment.


The Court found Schindler established a prima facie case that escalator was regularly inspected, maintained and that it did not have actual or construction notice from a prior similar incident that the escalator would behave this way.  Plaintiff failed to raise a triable issue of fact via res ipsa loquitur because it failed to show the escalator was in the exclusive control of Schindler.   Summary judgment was granted to Schindler.


The Appellate Division found that the Court should have denied the Port Authority’s summary judgment motion, however.  While the Port Authority also established its prima facie entitlement to summary judgment, plaintiff properly raised the res ipsa doctrine to defeat that entitlement.  The plaintiff provided evidence that once this escalator in question is stopped, it will not restart on its own.  It required a specific key to place the elevator back in service.  Port Authority employees only had access to this specific key.  This, coupled with the plaintiff having seen the Port Authority employee with a tool 30 seconds after the incident, caused the Court to find that this was an accident which “does not occur in the absence of someone’s negligence, that it was caused by an instrumentality to within the exclusive control of the Port Authority, and that it was not due to any voluntary act on the part of the injured plaintiff.”  The plaintiff’s case against the Port Authority lived another day.


01/24/17          Torres-Martinez v. Macy’s Inc.

Appellate Division, First Department

Res Ipsa Found Inapplicable by Court Based on Single Incident and Potential Plaintiff’s Contribution to Injury on Escalator; Defendants granted Summary Judgment

The plaintiff, a shopper at Macy’s, was allegedly injured when the escalator she was on skidded and shook and caused her to fall to the ground.  Plaintiff brought an action against Macy’s and against escalator mechanic, defendant ThyssenKrupp.  Both Macy’s operation manager and the escalator mechanic testified they had no prior reports of shaking or stopping and starting with the escalator and no one had competent proof of this having occurred previously, including the plaintiff.  Despite the fact that there were maintenance calls made by Macy’s to ThyssenKrupp 5-6 months before the accident, this did not raise an issue of fact for the plaintiff because they were not complaints for the same type of malfunctions.  Additionally, the Court found plaintiff’s expert proof to be speculative and conclusory.


With respect to plaintiff’s claims that res ipsa would save the day, the Court found that not to be so.  Because there was no evidence the escalator had ever behaved previously in the way plaintiff claimed and the fact the plaintiff was able to ride the escalator up to the next level after her fall, and because there was proof that suggested plaintiff contributed to her own injury due to her misstep, the Court found res ipsa loquitur inapplicable here and the case was dismissed.


01/24/12          Morrissey v. New York City Transit Authority

Appellate Division, First Department

Res Ipsa Found Inapplicable by Court Due Inconsistent Testimony and Trip and Fall Nature of Accident

While this is an older case than the two reviewed above, it is instructive in a few areas.  When representing a municipality at 50-h hearings (sworn testimony of the plaintiff generally taken soon after an accident by a municipality) and depositions, be prepared to nail down the plaintiff to his or her account of events and be prepared to identify differences in the plaintiff’s testimony.  50-h hearings especially often give the attorney defending a municipality an early crack at establishing a liability defense, before plaintiff has had the ability to obtain discovery and tailor their testimony around the discovery.  It can be an effective tool.


In the above case, plaintiff’s testimony from her affidavit submitted in opposition to defendant’s motion for summary judgment was different from her testimony at the 50-h hearing and deposition.  The Court did not give it much, if any, weight.  Similarly, since the plaintiff’s expert’s opinion was based on plaintiff’s “speculative testimony”, the Court found it insufficient to raise a question of fact with respect to the escalator.  Lastly, the Court found that the “doctrine of res ipsa loquitur is inapplicable to the facts of this case, since trips and falls are not the kinds of events that ordinarily occur absent someone’s negligence.” 


While Courts have certainly found that people tripping and falling on escalators are entitled to the benefit of the res ipsa doctrine, here it appears the Court simply set aside the self-serving and contradictory affidavit submitted by the plaintiff.


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