Watch your step!
Volume I, No. 7
Friday, December 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 www.hurwitzfine.com.
Jody E. Briandi
Todd C. Bushway
V. Christopher Potenza
Tessa R. Scott
Anastasia M. Stumpf
James L. Maswick
WHAT PREMISES POINTERS COVERS
Retail, Restaurant and Hospitality Industry
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Defective and Dangerous Conditions
Elevator and Escalator Accidents
Swimming Pool and Recreational Accidents
Dog Bites/Animal Liability
Assumption of Risk
Limited Services Contracts
Tavern Owner Liability and Dram Shop
NOTE FROM THE EDITOR
On behalf of the entire Premises Pointers Team, I would like to wish all of you Happy Holidays and hope you have a wonderful and prosperous 2018! For my family, 2018 promises to be a momentous year. We have milestone birthdays - 90, 80, 50 and 18 (none of those numbers are me by the way!), high school and middle school graduations and a newly minted college student come the fall (class of 2022). It is going to be quite a year and I am left with much to reflect on as 2017 comes to an end.
Now on to the law. This month’s edition covers all of the premises liability bases as far as cases are concerned. We have the usual slip and fall, storm in progress and assumption of the risk cases, along with others involving falling holiday garland (appropriate for this time of year), a collision between a toy train and bowl of hot soup, a rogue employee who punches a customer, a slippery grape causing a slippery situation and so much more!
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]. And if you have any questions, a problem, a case you want to discuss or as Dan (editor of Coverage Pointers) and David (editor of Labor Law Pointers) like to say, a situation, please feel free to give me a call or send an e-mail! I would love to hear from you.
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Retail, Restaurant and Hospitality Happenings Around New York State
By: Jody E. Briandi [email protected]
11/15/2017 Eksarko v. Associated Supermarket
Appellate Division, Second Department
The slippery grape that resulted in a slippery situation for the defendant.
Here, plaintiff slipped on a grape (she really did). The trial court granted defendant’s motion for summary judgment and denied plaintiff’s motion for sanctions based on spoliation of evidence. After plaintiff’s fall at the store, the defendant generated an accident report and noted that the fall was recoded on surveillance video. Defendant’s employee testified the video was saved on a computer that was ultimately damaged during renovations and therefore the video could not be retrieved. While the trial court determined defendant met its burden, and granted defendant’s motion, the Appellate Division disagreed. The court reiterated that in order to meet their burden of proof, defendant was required to offer evidence of when the store was last cleaned or inspected and noted evidence of general cleaning procedures is insufficient. Since defendant did not offer the necessary proof, the court held they did not meet their burden and that the motion should have been denied. With regard to the spoliation claim, plaintiff argued that defendant’s answer should be stricken, but the Appellate Division ruled that “since the loss of video was negligent rather than intentional, and the loss of the recording does not completely deprive the plaintiff of the ability to prove her case, the appropriate sanction is to direct that an adverse inference charge should be given at trial.” Thus, this trip to the Appellate Division resulted in a double loss for the defendant.
11/28/2017 Kurcias v. 1043 Rest. Corp.
Appellate Division, First Department
Defendant’s alleged employee struck plaintiff while employee was riding his delivery bicycle – summary judgment denied to defendant.
Plaintiff claimed she was struck by defendant’s employee, who was riding a bicycle while making deliveries. Defendant moved for summary judgment on the ground the bicycle operator was not their employee. Although testimony was taken from several employees who testified they were not involved in the accident, defendant did not submit affidavits from the employees who were not deposed, thus leaving open the possibility that one of them were involved. Therefore, the court concluded that the defendant failed to meet its burden and denied the motion.
11/30/2017 Parke v. Dollar Tree, Inc.
Appellate Division, Third Department
The case of the falling Christmas garland and falling plaintiff – summary judgment granted to defendant.
Plaintiff, while shopping at the Dollar Tree store, claims that when she was removing garland from a display shelf, some other packages of garland fell, causing her to turn away, which in turn caused her to fall. Defendant moved from summary judgment on the grounds plaintiff’s fall was not reasonably foreseeable. Plaintiff countered with an expert affidavit who attested to the proper, safe and correct way to display merchandise on a shelf. The trial court agreed that it was not reasonably foreseeable that the plaintiff would be injured while taking garland off a shelf. The Appellate Division agreed that there was nothing about plaintiff’s description of what happened that suggested the manner in which the garland was displayed created a foreseeable risk. Furthermore, the nature of the display was not such that one would predict it would knock someone to the ground leading to a broken wrist.
11/30/2017 Ballo v. AIMCO 2252-2258 ACP, LLC
Appellate Division, First Department
Summary judgment granted to premises owner who was an out of possession landlord.
Plaintiff was shot in the foot while standing on sidewalk outside a bar operated by P.J. Cocktail Lounge & Restaurant, Inc. Defendant AIMCO owned the commercial space that was leased to P.J.’s. AIMCO moved for summary judgment because the assault occurred on a public street over which it exercised no control. Furthermore, AIMCO owed no duty the plaintiff, a patron of the bar, because AIMCO was an out of possession landlord. Even though AIMCO retained the right to re-enter the premises to make repairs, it was not involved in how P.J.’s operated the bar.
11/30/2017 Villongco v. Tompkins Sq. Bagels
Restaurant not liable to customer who was punched in the face by restaurant employee.
Appellate Division, First Department
A fight broke out outside of defendant’s restaurant when defendant’s restaurant employee followed a customer outside and punched him in the face. Since the employee acted outside the scope of his employment and was motivated by private concerns “not related to any conduct in furtherance of defendant’s business” defendant restaurant was not liable to the plaintiff based on claims of negligent training or supervision. Furthermore, there was no evidence that defendant restaurant knew or should have known of the employee’s propensity for violence.
12/07/2017 Beck v. Stewart’s Shops Corp.
Appellate Division, Third Department
Customer shopping at convenience store slips on water likely tracked into store due to weather conditions – summary judgment granted to defendant.
Plaintiff, while shopping, slipped and fell in defendant’s convenience store due to water and/or slush on the floor. In support of its motion, defendant submitted evidence that mats were placed at the store’s entrance and at the coffee station. Defendant’s employee further testified that there were at least 4 wet floor signs place in the store, which plaintiff denied seeing. These measures were in place as a precaution in the event customers tracked snow into the store. Defendant’s employee testified she inspected the store at the beginning of her shit at 10:00 a.m. and observed no moisture on the floor. Plaintiff’s fall occurred around noon. The employee had no specific recollection of checking the area of the store where plaintiff fell, but testified she would have conducted a routine inspection of the area within 15 minutes of the fall. She confirmed no complaints were received that day and she observed no dangerous conditions on the floor. Defendant’s motion was granted. The court found that the defendant took reasonable precautionary measures and could not prevent some water and mud from being brought into the store due to the weather conditions. Further, the plaintiff failed to offer any evidence demonstrating defendant had notice of the condition prior to the plaintiff’s fall. The fact wet floor signs were used was insufficient to raise a question of fact as the question of notice.
12/13/2017 Sekkat v. Huitres NYC, Inc.
Appellate Division, Second Department
Hot soup, but defendant not in hot water.
Plaintiff’s child was allegedly injured by hot soup which spilled. Plaintiff alleged that the restaurant was negligent for serving soup that was too hot, and failing to warn the soup was hot. Defendant moved for summary judgment submitting evidence that the soup was spilled when the infant plaintiff’s younger brother pushed a toy train into the bowl. There was further evidence the mother warned the child the soup was hot and that they were waiting for it to cool at the time of the collision with the toy train. Defendant further submitted evidence that the temperature of the soup was checked by the line cook and was between 140-165 degrees. The court concluded that defendant restaurant served soup that was not unreasonably dangerous for its intended use and was served at an acceptable range of temperature, which complied with the New York City Health Code. The defendant’s motion was thus granted.
Negligent Supervision, Municipal Claims, Assumption of Risk and Limited Services Contracts
By: Todd C. Bushway [email protected]
Greetings from the final days of 2017 and best wishes for the holiday season. That, of course, brings the usual holiday scramble - thank god for Amazon and E-bay. We are ahead of ourselves at our home (ok, my wife and kids are ahead) in that we actually have Christmas decorations scattered about. This weekend will see us making the trek to my sister’s Christmas tree farm in Holland, New York to spend some time helping out and cutting down whatever tree household management (i.e. my darling bride) selects. For those of you lamenting the snow that has found its way to Western New York in the last week or so, cutting the tree is always more festive with a seasonally appropriate blanket of the white stuff, which is always better than the muddy mess 40° can bring.
The end of the calendar year also brings the usual parsing and review of the past 12 months. As one whose life has a soundtrack (it starts with guitars dear reader, always guitars), the end of the year also brings the “Best of” lists. While I miss the pre-digital age rituals of passing along cool music to friends and fellow fans and hours lost in record stores, today’s ready and almost immediate access to music makes those lists fun. No matter how interested or adventurous you may be, only a minute fraction of the delectable audio that emerged in the past 12 months makes it to your ears. One solution is to put yourself in front of an internet connected device, open Spotify (or Pandora, Apple Music, etc.) and find a list and start scrolling. If the band or record sounds interesting, a few taps on the keyboard and voila, the band plays. Like it? Download, purchase, add to the playlist and you are good to go. Not to your liking – on to the next entry. And those lists can cover all types of music or focus on a particular genre (don’t be scared, no one will judge those of you partial to elevator jazz). While Google is your friend here, a couple lists to get you started, beyond the obvious from sites like Rolling Stone, are:
Noisy’s 100 Best Albums of 2017 (a UK based site);
We have three cases this month. There is a trial court decision on primary assumption of risk that seemingly fails to follow a Court of Appeals decision with strikingly similar facts, a school supervision case that highlights the defendant’s burden of proof on a motion for summary judgment, and a late notice of claim decision that reinforces that whether a prospective defendant had notice of the facts underlying the claim and whether that prospective defendant is prejudiced by the late filing are the most significant factors a court is to consider on an application to file a late notice of claim.
12/05/2017 Dalton v. McDonald
Supreme Court, Westchester County
Primary Assumption of Risk: Golfer struck by playing partner’s errant shot.
Plaintiff was an experienced golfer and she and the defendant were regular golfing partners and had played together on a regular basis for 4-5 years. On the fateful day, the defendant’s shot landed in the rough and was hopelessly lost. Plaintiff, who was driving the cart, dropped the defendant at the approximate location of her lost ball and took the cart to her ball, located to the right of and slightly ahead of defendant’s location. The defendant dropped a new ball and swung away. That shot veered approximately 40° to 45°off target to the left and hit plaintiff, who was exiting the cart. The defendant admittedly did not make any statement or give any warning before swinging away.
Defendant argued that the claim was barred by the primary assumption of risk doctrine, i.e. that plaintiff had, by her voluntary participation in the round of golf, assumed all risks inherent in the sport and that errant shots were a known risk in golf, even at the highest levels of the sport. In opposition to the motion, plaintiff argued that the defendant would have had a view of plaintiff’s location when making her shot and the defendant’s failure to give any warning that she was going to shoot created a risk that was not inherent in the sport. Defendant testified that she could not see plaintiff’s cart when she took her shot.
The court denied the motion, holding that the failure of the defendant give any verbal warning that she intended to play her dropped ball created a question of fact on whether her actions “amounted to intentional or reckless conduct that unreasonably increased the risk inherent in golf.” “Intentional or reckless conduct” are considered to create risks outside the norm for the activity and therefore not assumed by a participant. Interestingly, the court differentiated these facts from those found in Anand v. Kapoor, a 2010 Court of Appeals decision (15 N.Y.3d 946). The Anand plaintiff dropped defendant Kapoor, a fellow golfer, in the general location where Kapoor’s ball had landed and then took the cart to look for his own ball. Upon locating his ball, Kapoor swung away, with the resulting errant shot struck plaintiff. Defendant did not give any warning of his impending shot. In affirming the court below, the Court of Appeals held that the defendant’s failure to warn before making his shot did not rise to intentional or reckless conduct and that the risk of being struck by a wayward shot while searching for one’s own ball is a known risk inherent in golf.
I’m not sure I see the difference between Anand and this case and would have to assume that the defendant will appeal. I checked the e-file for this case and the Order denying the motion was filed with notice of entry on December 8, 2017, meaning their remains ample time to file any notice of appeal. This case illustrates, at least on the facts described in the decision, the frustration practitioners often face when handling case that seemingly line up well with existing case law. From a practice stand point, the take away is to make sure that you both elicit as much factual evidence as you can in depositions and that you thoroughly investigate the plaintiff’s knowledge of the game and playing experience. The more complete the record, the stronger your appeal will be.
The injurious shot is described in the opinion as a “mulligan,” which is incorrect. Per the PGA’s online dictionary, a “mulligan” refers to a second shot on a hole, usually without the golfer incurring a penalty. A mulligan typically follows a wayward shot – essentially a do over. What the defendant played in this case is what USGA Rule 27-2 refers to as a “provisional ball.” A provisional ball is played in lieu of a lost ball. When playing a provisional ball, the player is charged with a one stroke penalty.
12/06/2017 K.J. v. City of New York, et al.*This case is not available from any public source. Please contact me for an emailed copy if it is of interest to you.
Appellate Division, Second Department
Negligent Supervision – School did not meet its burden of proof in a case arising from an assault in a school stairwell by several students on another student – Court found questions of fact as to whether school provided adequate supervision and what knowledge the school may have had regarding any prior violent actions by the assailants.
K.J. was a 14 year old student the Abraham Lincoln High School in Brooklyn who was, while on his way to class after leaving the cafeteria following lunch, he was assaulted in a stairwell by 4 fellow students. He sought to recover for injuries suffered in the assault, including facial fractures.
K.J. testified at his 50-h that one of the assailants had thrown something at him during the lunch period and that he responded by going to that student’s table to confront him. At that time, one of the assailants challenged K.J. to a fight. K.J. declined the invitation and returned to his table. He did not report or make any complaint to school personnel about the interaction. He testified the assailants then left the cafeteria before the lunch period ended and he observed at least one head toward the stairwell. When the lunch period ended, K.J. walked to and entered the stairwell, intending to go to his next class. Once in the stairwell, the four assailants attacked K.J., an assault that K.J. testified lasted for about 25 seconds. K.J. then returned to the cafeteria, found a school dean and was taken to the nurse.
K.J.’s father testified that he spoke with a school dean (the case doesn’t state if it was the same dean that assisted K.J. in the cafeteria after the attack) afterwards and was told that one of his son’s assailants had previously assaulted another student. K.J.’s father also testified that he was aware that the assailants were members of the Crips street gang.
The school’s safety officer was deposed and he provided almost no substantive testimony. He did not witness the attack and did not know how many students had attacked plaintiff or their identities. He did not know if the assailants had any prior history of in-school assaults or other violent behavior, although he had seen one of those students in a dean’s office on a prior occasion. He testified that his duties did not include supervising the cafeteria (that duty fell to the deans) and that teachers generally stood in the hallways between periods. He did not know how many students attended the school, how many safety officers were assigned to the school, where those officers were stationed in the school during the school day and how often the school experienced violent incidents. He identified a supervisor who was tasked with overseeing building safety but did not have any information from that supervisor or other school administration about how school safety was addressed.
The school defendants moved for summary judgment arguing the school had no notice (actual or constructive) of assailants’ potential to cause harm or of any prior conflict between those students and the plaintiff and that any alleged negligent supervision was not a proximate cause of the assault because the assault was an unexpected and spontaneous event that could not have been prevented.
In overturning the trial court’s order granting the school defendants’ summary judgment, the Appellate Division found that the school defendants had not met their burden of proof to establish, through affirmative proof, that it had provided adequate supervision and that they did not have actual or constructive notice of any prior violent acts by the assailants.
The court appears to give credence, at least in setting the school’s burden of proof, to the father’s testimony about what he was told and the safety officer’s statement that he had seen an assailant in a dean’s office on a prior occasion. Even though those statements lack any real verifiable information, especially the testimony about the student’s presence in a dean’s office (there are a lot on reasons a student could be in an administrator’s office that are not related to wrongdoing or discipline), the court expected the school defendants to specifically address this testimony with some sort of affirmative proof – i.e. testimony or an affidavit(s) from school personnel, records, etc., explaining what had actually occurred in those instances.
The court also found a question of fact on the question of whether the fight was spontaneous event that could not have been prevented. In making this finding, the court noted that the assailants left the cafeteria before the lunch period ended and were able to block the stairwell when the period ended and that there was no school supervisory or security personnel in the stairwell at a time when a large number of students could be expected to be in the area. It appears that there was no proof presented on the school’s safety plan or procedures or how hallways and stairwells were supervised and monitored.
The clear takeaway here is the burden of proof borne by the school defendants in making their motion. Case law requires that the moving party put forth affirmative proof establish the elements of its argument and rebut any allegations or issues raised in the case through direct allegations or during discovery. It is not enough to point to holes in an opponent’s proof – the moving party must affirmatively address the claims against it.
I found it interesting that there is no discussion about any specific history between the plaintiff and his assailants, beyond the incident in the cafeteria that day, which plaintiff admits he did not report to any school employee before he left the cafeteria to go to his next class. The court’s discussion focuses on the school defendant’s failure to offer any proof regarding the prior conduct or records of the assailants, which apparently did not involve the plaintiff, and the school’s procedures and protocols for student supervision and safety in hallways and stairwells.
The court was clearly not pleased with the testimony by the school safety officer, evidenced by the detailed listing of questions the officer could not answer. I have no knowledge about how discovery played out and therefore cannot offer any comment on how counsel for the school defendants handled discovery - sometimes clients and witnesses are not what we would hope, and vice versa – it happens. That said, I was amazed about unprepared the officer was to testify. One would expect that preparation for the deposition would have included a review of the school’s basic information and operations, and in particular student safety and whether there had been any prior problems either of the general type presented here or about the particular students involved. If he did not possess this information, another witness should have been identified and produced instead. If that officer was not the witness to speak about the particular students, one would have expected another (or several) witness to testify - it’s not uncommon that testimony from more than one witness is necessary to address all of the issues - or the defendants to include, as part of the motion papers, an affidavit from a school administrator addressing the particular students and any prior problems.
The critique here should not be limited to the defense. When faced with a corporate or institutional witness that is unable to provide answers to the questions posed, the next question should, in most cases, be “if not you, then who would know?” and “what records should I ask for and where how are they kept?” Counsel should take the necessary steps to follow up and identify and depose a knowledgeable witness. While in this case, the dearth of information about the school’s policies and procedures and the prior conduct of the assailants lead to a ruling in the plaintiff’s favor, if no further discovery was conducted after motion practice, this case is heading to trial with a lot of missing information. Not how I would want to try a case.
11/22/2017 Daprile v. Town of Copake
Appellate Division, Third Department
Late Notice of Claim—Actual knowledge and prejudice are factors to be given the most weight in determining to allow a late notice of claim.
Daprile was a homeowner who sought to bring an action against the town where he resided for trespass and nuisance, seeking to recover for flood related damage to his property that allegedly occurred as a result of changes the town made to the drainage system of a nearby roadway. The drainage work took place in 2000 and the homeowner claimed that since that time, water and debris had regularly flowed onto his property. In January of 2015, this runoff caused the foundation of Daprile’s home to collapse. Daprile immediately took steps to begin stabilizing and repairing the home. In May of 2015, approximately one month after the 90 day period following the collapse, Daprile notified the town’s highway superintendent of the damage, leading to multiple discussions between the two about both the problem and possible solutions. The highway superintendent also inspected the roadway drainage system and the homeowner’s property, where repairs to the home were ongoing.
In October of 2016, (having missed the 90 day period filing a notice of claim), Daprile sought leave to file a late notice of claim, which was denied. The trial court acknowledged the usual factors to consider in reviewing an application to serve a late notice of claim, including whether the defendant had actual notice within the 90 days or a reasonable time after, whether the plaintiff offered a reasonable excuse, the relative merit of the proposed claim, and whether the defendant would be prejudiced by the delay. Focusing on the lack of a reasonable excuse and what it deemed the “questionable” merit of the proposed claim, the trial court denied the motion.
In overturning the motion and granting the homeowner leave, the Appellate Division, 3rd Department, recognized the trial court had referenced the relative factors to be considered in reviewing the application, but was critical of the trial court’s singular and exclusive focus on the homeowner’s lack of an excuse for the delay in filing the Notice and the merits of the case. The 3rd Department held the trial court erred because it did not analyze whether the town received actual notice with 90 days or within a reasonable time afterward and whether the town was prejudiced as a result of the late filing. The court specifically noted that while a reasonable excuse is one of the factors listed in General Municipal Law §50-e(5), the failure to offer such an excuse is not fatal when the facts establish actual notice and a lack of prejudice.
The 3rd Department then held that notice to the town highway superintendent approximately one month after the 90 day period following January 2015 damage to the home and the superintendent’s ongoing discussions with the homeowner and inspection of the home and drainage system more than met the requirement that the town have actual notice in a timely manner. The town argued that it was prejudiced because it was denied the opportunity to inspect the property the plaintiff began repairs to the home. The court rejected this, stating that when the town inspected the property in May of 2015, those repairs were still ongoing.
The take away is to ensure that you are aware of all of the factors the court should consider and make sure to address each of those factors as they apply to the case. No single factor is determinative – the court should consider all factors in the context of the case. That said, the Appellate Court noted that New York case law establishes actual knowledge as the most significant factor to consider.
As an aside – it seems to me that the town’s argument on prejudice raises a question I have always found interesting in these cases. The town’s argument is that it was prejudiced because it did not have a chance to inspect the property before repairs to the home were begun. Would not that same scenario present itself if the claim was filed on the 89th day and therefore timely? Of course the repairs began as soon as practicable – to do otherwise would be laughable and no one would seriously suggest that the homeowner was somehow obligated to wait to both determine if he intended to bring a claim and allow the town to inspect before the repair work was undertaken.
The homeowner originally sought to include claims dating back to the original 2000 work by the town, which would mostly be barred by the one year and 90 day statute of limitations for this type of action against the town. The homeowner’s motion was then modified to seek only relief related to claims arising from the January 2015 events.
By: V. Christopher Potenza [email protected]
To all our friends in toxic tort land, we wish you a Happiest of Holidays, and peace and prosperity in the New Year. My holiday gift to you, no case recitals this month! While I will gladly accept your thanks (and admiration), your gratitude is best bestowed on the justices of our appellate courts who issued no decisions of any interest last month on asbestos, lead-paint, or any other toxic substance alleged to be harming all of humanity.
I do wish to point out some highlights from this past year. The First Department asbestos causation decision in Juni v. Ford Motor Company initially sent shockwaves throughout the state with its apparent rejection of plaintiff’s “each and every exposure” theory. While this led to a flurry of defense motions to preclude “each and every” plaintiff’s expert, the reality is that this decision has not changed the landscape that much. The plaintiff’s bar has reacted with expert disclosures more tailored to address quantitative exposures, and quite frankly, these motions to preclude are rarely decided as very few asbestos cases in New York make it to trial. We will be watching as this case makes its way up to the Court of Appeals however, and certainly keeping an eye out for a successful causation challenge at trial.
Speaking of asbestos trials, the other interesting development, upstate at least, was Justice Merrell’s decision to reduce a 2014 Onondaga County verdict of over $7 million against a friction defendant. The award for pain and suffering was reduced from $6 million to $3 million, and the award for loss of services reduced from $1.5 million to $270,000. Somewhat troubling however is that fact that the award provides for $250,000 per month for pain and suffering on a mesothelioma claim, and previous upstate rulings put the value at $150,000 month. While plaintiffs may claim this sets a new standard for evaluating these injuries, I would argue that this merely marks the ceiling for monthly pain and suffering as the court deferred to a jury’s high verdict. Previous rulings in which the courts put a value at $150,000 were on post-trial additur claims from low verdicts.
In the lead-paint arena, the song remains the same as the appellate courts routinely re-affirmed the standards set forth by the Court of Appeals in Chapman v Silber, 97 N.Y.2d 9 (2001) for establishing constructive notice in residential lead paint claims. To establish that a landlord had constructive notice of a hazardous lead paint condition, a plaintiff must demonstrate that the landlord: (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.
And that’s our year in review. As a reminder, we have a team of experienced attorneys handling these claims across the state. Pulaski, Patchogue, Poughkeepsie…. we’ll be there, with bells on (at least until December 25th). Warm wishes for a safe and happy holiday season to you and your families. Tonight is our firm Holiday Party and I think the bar just opened…
Homeowner Liability and Recreational Accidents
By: Tessa R. Scott [email protected]
I am notorious for being behind in holiday shopping. This year is no different, the only thing I have managed to purchase is a custom pair of socks with my dog’s (adorable) face on it. I am now in a slight panic about all the people I still have on my shopping list. Admittedly, I considered getting everyone a pair of the socks, but I just don’t think my four brothers would wear them. I certainly hope you all are further along in your holiday preparations. If you have any stellar present ideas let me know.
This week we have three cases from the First Department. The most interesting of the lot was Haibi v 790 Riverside Dr. Owners, Inc., where the defendant, despite repeated requests from Plaintiff, did not preserve a video of the subject slip and fall. This is a major blunder because the Court may, as they did here, provide the jury with an instruction that it should presume that whatever was on the video supported the party who requested the destroyed evidence. The reason for this rule is fairly obvious. If you are in possession of a smoking gun and get rid of it, the Court does not want you to benefit.
Have a wonderful holiday, I am off to buy some gifts!
11/22/2017 Cotto v New York City Hous. Auth
Appellate Division, Second Department
Defendant homeowner was not charged with notice of window that closed immediately upon opening.
The plaintiff alleges that almost immediately after he opened one of the windows in the living room of his mother's rental apartment, it slammed shut, severing the tip of his left ring finger. Thereafter, the plaintiff commenced this action against the defendant landlord alleging that the window was defective because it would not stay up when it was opened and the defendant was negligent in inspecting, maintaining, and repairing the window. The plaintiff also alleged that the defendant had actual or constructive notice that the window was defective. The defendant moved for summary judgment dismissing the complaint, and appeals from the order denying its motion.
"An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it.” Here, with respect to the negligent maintenance claim, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged injury-producing condition or have actual or constructive notice of the condition. The evidence showed that, more than one year prior to the incident, a window in the living room of the subject apartment had been repaired following an inspection by the defendant, and that there had been no complaints about the windows in the apartment following the repair. In opposition, the plaintiff failed to raise a triable issue of fact.
The defendant's motion for summary judgment dismissing the Complaint was granted.
11/28/2017 Schiff v ABI One LLC
Appellate Division, First Department
There was a question of fact regarding whether Defendant installed smoke detectors and whether that could have prevented the decedent’s death
The First Department affirmed the holding of the lower Court because it was unclear if the defendants, the owner and manager of a building in which plaintiff's decedent lived, installed smoke and carbon monoxide detectors in decedent's apartment and whether such failure, if it occurred, was a proximate cause of his injuries.
The building superintendent testified that he installed the device in decedent's apartment, however, conflicting testimony from other witnesses was presented, the documentary evidence is unclear, no smoke detector was observed in the debris following the fire, and neither the neighbors nor the firefighters heard an alarm. Evidence was also presented that a smoke alarm could have alerted decedent in sufficient time to escape before being overcome by smoke inhalation.
Additionally, the lower Court’s decision to allow plaintiff to amend the Bill of Particulars, after the filing of the Note of Issue, to add additional statutory violations was proper. The First Department held that mere delay is not a sufficient basis to deny the request to add additional statutory violations, and defendants failed to show prejudice or likely surprise.
10/16/2017 Haibi v 790 Riverside Dr. Owners, Inc.
Appellate Division, First Department
Defendant failed to preserve evidence and could not overcome the inference that inadequate lighting in the stairwell was a proximate cause of Plaintiff’s fall.
Plaintiff, brought this action as the Administrator of his father Erasmo Haibi (Haibi)'s estate to recover damages for Erasmo's injuries from a fall on October 24, 2009, on a stairway in a residential apartment building owned by defendant 790 Riverside Drive Owners, Inc., and managed by defendant Orsid Realty Corp. The stairway connected the main and southern lobbies near an entrance to defendants' building. Plaintiff alleges that his father was injured by a fall on the lobby stairs because of, among other things, inadequate illumination.
Haibi's granddaughter, who lived with her grandfather in the building at the time of his accident, did not observe his fall, but found him lying injured at the bottom of the lobby stairs. Haibi died from an unrelated cause before he was deposed in this action. There was video of the fall—however, although plaintiff orally requested a copy of the videotape from defendants, and plaintiff's attorney requested in writing that they preserve the tape, defendants destroyed it. In anticipation of trial, plaintiff moved for an adverse inference instruction to the jury, at trial, due to defendants' destruction of the tape. The lower Court granted plaintiff an instruction allowing the jury to infer that the videotape would have supported plaintiff’s depiction of the stairs and of Haibi's fall, based on plaintiff’s viewing of the tape.
In response, before the trial commenced, defendants moved for summary judgment claiming that there was no dangerous condition on their stairway that caused Haibi's fall. Initially, the lower Court granted defendants' summary judgment motion seeking dismissal of plaintiff's claims that the stairway was unsafe due to the lack of handrails, and poor treads and risers on the stairs. However, the Court denied defendants' summary judgment motion seeking a dismissal of the action because defendant had established the lighting was adequate. The First Department agreed.
The First Department found that plaintiff submitted an expert's affidavit stating that upon his inspection the light levels were a fraction of what was considered adequate lighting under later building codes from 1968 and 2008. The First Department rejected defendants' argument that plaintiff's expert affidavit should be disregarded because he did not specify when his inspection of the area occurred, and under what conditions.
On the issue of proximate cause, the First Department found that defendants failed to meet their burden. “‘Proximate cause is almost invariably a factual issue; however, the issue of proximate cause may be decided as a matter of law "where only one conclusion may be drawn from the established facts.’”
Notably, the First Department’s decision was not unanimous. The dissent opined that “the issue of proximate cause must be decided as matter of law in favor of defendants because “‘none of [the witness to the accident or who reviewed the videotape of the accident] claimed that the decedent misstepped or lost his balance due to inadequate lighting.’" The law, however, does not apply such a stringent requirement. The First Department countered this argument that plaintiff was only required to produce evidence identifies the defect or hazard itself and provides sufficient facts and circumstances from which causation may be reasonably inferred.’”
Snow and Ice, Storm in Progress, Tavern Owner/Dramshop Liability and Other Timely Topics
By: Anastasia M. Stumpf [email protected]
Before I wax poetic about storm-in-progress doctrine and the recent Buffalo Bills “snow globe” game against the Colts, let me first say, Premises Pointers is now on Twitter! If you like tweeting, #’ing, and/or moderately entertaining GIF’s, follow us on Twitter at @PremisesLaw. Just remember, I never promised you a rose garden.
That said, your resident weather gal brings you a flurry of timely slip and fall cases for your perusal.
11/09/2017 Wrobel v. Tops Markets, LLC
Appellate Division, Fourth Department
Court denies summary judgment based on “storm in progress” rule where Defendant submits “conclusory” expert opinion alongside contradictory deposition testimony of Plaintiff.
Plaintiff sued Tops supermarket after she slipped and fell on a patch of ice in the supermarket parking lot. The Fourth Department affirmed the trial court’s denial of summary judgment, finding that Tops failed to show that a storm had actually been in progress at, or around, the time of the fall. Specifically, the Court rejected the evidence Tops had initially set forth, which consisted of an expert opinion that the courts deemed “conclusory” and unsupported by the evidentiary record as well as deposition testimony of the Plaintiff, who testified that it was not snowing at the time of the fall.
11/29/2017 Pecoraro v. Tribuzio, et al.
Appellate Division, Second Department
The Second Department rejects climatological data illustrating storm-in-progress when accompanied by contradictory deposition testimony of Plaintiff.
Similarly, the Second Department reversed (and therefore denied) that portion of Defendants’ summary judgment motion that was based on the “storm in progress” rule. Here, the Court dismissed climatological data submitted by Defendants, stating that it was contradicted by Plaintiff’s deposition testimony, which Defendants had unfortunately submitted in support of their motion. The Second Department went on to hold that, “[s]ince the evidence submitted by the defendants was in conflict, and, thus, could not establish prima facie, that the storm in progress rule applied” the trial court should have denied that portion of Defendants’ summary judgment motion.
12/05/2017 Filius v. New York City Housing Authority
Appellate Division, First Department
First Department unanimously reverses trial court’s denial of Defendant’s Motion for Summary Judgment.
The First Department unanimously reversed the trial court’s previous denial of Defendant’s motion for summary judgment. Ultimately, the First Department determined that Defendant properly established the existence of an active storm where it produced certified meteorological records and the deposition testimony of Plaintiff. Plaintiff failed to defeat this showing of an active weather event because he merely stated that he fell “on dirty snow” that could have fallen between the time of Defendant’s last snow removal and the incident. Moreover, Plaintiff’s allegation that Defendant had inadequately shoveled the area was determined “conclusory” and insufficient to raise a triable issue of fact in response to Defendant’s showing of an active storm in progress.
United States District Court, Northern District New York
Defendant post office established that it was not liable for Plaintiff’s injuries becase a storm was in progress at the time of Plaintiff’s fall and Defendant-landlord, FDI, established that it was not liable for Plaintiff’s injuries because it was an out-of-possession landlord.
Plaintiff slipped and fell on a walkway leading to a post office. Specifically, Plaintiff alleged that she slipped and fell on ice that had “formed from water that dripped from a gutter onto the sidewalk.” Critically, Plaintiff could not remember what time of day the incident occurred, although hospital records indicated that she was discharged, after an examination and imaging, at approximately 1:20 P.M. on the alleged date of loss. Nevertheless, Plaintiff brought suit against the United States as well as the property’s owner, FDI.
In its opinion, the Court relied on a number of facts set forth in the Defendants’ statements of fact, including: that there had been two winter storm warnings in place during the 48-hour period leading up to Plaintiff’s fall; that, in total, twenty inches of snow had fallen during the 48-hours leading up to the date of loss; that a “separate” winter storm had caused light to moderate snow to fall continuously from 5:05 AM until 6:50 PM on the date of Plaintiff’s fall; that approximately 0.7 inches of snow fell in the area of the post office on the date of loss; that the temperature did not rise above freezing on the date or location of the incident; and that Plaintiff herself testified that there had been snow on the ground, although she did not “remember like how much.”
First, the Government moved for judgment premised upon the “storm in progress” rule. In addition to the facts listed above, the Government submitted evidence that a snow contractor had provided snow removal and ice abatement services, including salting, on the date of loss; evidence (in the form of employee testimony), that the post office had no record of complaints about icy sidewalk conditions or falls; an expert engineer’s report (based upon in person inspection as well as examination of photographs taken before, during and after the fall) opining that the gutter system was working properly and the downspout was properly connected to an underground discharge pipes for several months before the fall; and a forensic weather report of a certified consulting meteorologist establishing that a storm was in progress at time of loss. Specifically, the report illustrated that, in the two days leading up to the fall, 20” fell in the area; that there was a total of 26” of snow on the ground on the morning of the fall; and that a melting and refreezing process would have occurred in the early morning hours on the date of the incident, causing new ice to form overnight followed by new snowfall beginning at approximately 5:00 AM on the date of the incident.
In this case, the District Court’s analysis of the “storm in progress” rules was quite nuanced. Reiterating the traditional rule, that “a property owner will not be held responsible for an accident occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm,” the Court went on to state that the question of whether or not a reasonable time elapsed is decided by the Court, as matter of law in certain circumstances. Where there has been a period of inactivity following the cessation of a storm, however, the question becomes of one of reasonableness and, therefore, fact. (“A defendant need not remove ice and snow until the storm has ceased entirely…a brief ‘lull in the storm’ does not impose a duty to immediately clear ice and snow.” ) Moreover, the Court stated that “[e]vidence of a storm in progress ‘is especially persuasive when based upon the analysis of a license meteorologist.’”
In opposition to Defendant’s motion, plaintiff presented no evidence to challenge the meteorologist’s report. Instead, Plaintiff relied only an “inconsistency” with the meteorologist’s conclusion based upon the deposition testimony of one of the post office employees who testified that she could not remember the weather. Ultimately, the Court determined that the Government’s “unchallenged” evidence illustrated that a storm had been in progress at the time of the fall, and, that even if Plaintiff had been able to establish a “brief pause” in the storm at the time of her fall, a lull in a storm does not impose a duty to remove now or ice before the storm ceases in its entirety.
Additionally, the Court found that even if a storm had not been in progress, Plaintiff would have failed to raise a triable issue as to whether or not the Government had unreasonably delayed clearing the ice from the sidewalk because Plaintiff could not establish when her fall actually occurred. As such, the Court determined that “[w]ithout knowing when the accident occurred, it would be nearly impossible to assess whether the Government removed the ice in a reasonable time.”
The Court also granted Summary Judgment Motion in favor of the non-governmental, landlord-Defendant, FDI. FDI argued that it was not liable for Plaintiff’s injuries because it was an out-of-possession landlord with no duty to keep the post office sidewalk free of ice.
Generally, out-of-possession landlords are not responsible for dangerous conditions existing after the possession of the premises has been transferred to from the landlord to the tenant. Exceptions to this general rule include situations where a landlord has specifically agreed to repair or maintain the subject-premises, or where the landlord has affirmatively created the condition.
In this particular case, the lease agreement obligated the post office to complete regular upkeep and maintenance of the property, while the landlord maintained responsibility only for structural repairs. Plaintiff attempted to place liability on FDI by arguing that the broken gutter and downspout were “structural” flaws since they were attached to the building structure. This argument failed, however, because Plaintiff cited no authority to support the contention that something is structural simply because it is attached to the building. More importantly, under the terms of the lease, “structural repairs” was defined as those impacting a specific component of the building, such as foundation or bearing walls. As such, the Court determined that, assuming the water flowing from the allegedly defective gutter actually caused Plaintiff’s injuries, FDI was entitled to summary judgment because a broken gutter is not, under the terms of the lease, a structural defect. “Only a significant structure design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord.”
The Ups and Downs of Elevator and General Litigation
By: James L. Maswick [email protected]
The holiday season is a time to be with family, read by the fire, eat good food and watch the snow fall. Millions of Americans who would not otherwise be caught dead entering shopping malls do so for the express purpose of making their children happy by getting this year’s must have toy. While I do not have any children, I have experienced this with sensation with my wife, seeking gifts for our nieces. To successfully navigate shopping malls, people must dodge mall walker groups, bands of over amped teenagers and the internal conflict about whether to order an Orange Julius. Not to mention the parking situation present at most shopping malls. It is no wonder that online shopping continues to cut into the brick and mortar stores. Also, malls present a place where many ride escalators and elevators! This could be from the parking area into the mall itself or to move between floors. With the traditional concept of malls being largely replaced by outdoor shopping areas, malls are largely aging structures. (the Washington Post took a shot at explaining why they were following out of favor with consumers, see https://www.washingtonpost.com/news/wonk/wp/2015/01/06/why-no-one-likes-indoor-malls-any-more/?utm_term=.f0fa2f9e8a70). Nonetheless, it remains important for escalators and elevators to continue to receive regular maintenance and to be replaced as needed. You will see one case reviewed this month where the dangers of a property owner ignoring the good advice of their elevator maintenance company. We have two Appellate-level Decisions to report this month in the elevator realm and one trial Order. The First Department has once again provided us with an application of res ipsa loquitur with respect to a falling elevator. This time, the defendant was unable to convince the Court to dismiss the case, as frequently happens in elevator “free fall” cases. Loyal readers will remember the July, 2017 issue which focused on explaining res ipsa loquitur, “the thing speaks for itself”, a theory that permits a plaintiff to presume negligence by defendants occurred in certain situations. If applicable to a case, it becomes a tall task for defendants to overcome on motions they make for summary judgment. As mentioned above, the First Department has also provided us with a lesson – listen to your elevator company when even they say your elevator is in bad condition! While a tightly drafted contract lead to a grant of summary judgment for the elevator company, presenting a “modernization” proposal for an aged elevator certainly did not hurt the elevator company’s cause.
The trial Order reviewed below is apparently presented a case of first impression in New York – the opening of a second, rear elevator door unexpectedly. But, do we have negligence on the part of a defendant?
Please feel free to contact me if you have any questions, comments or just to say hey – [email protected] or (518) 523-2441.
12/05/2017 Colon v. New York City Housing Authority
Appellate Division, First Department
Defendant’s motion for Summary Judgment Denied Due to Res Ipsa; Plaintiff’s Case Further Supported by Expert Affidavit
Plaintiff was allegedly injured when she entered an elevator in a building owned by the defendant and the elevator car fell from the 20th Floor of the building to the 11th floor. While defendant demonstrated to the Court that it had a lack of actual or constructive notice of any defect which would cause the car to fall, the Court noted that the plaintiff could rely on the doctrine of res ipsa loquitur.
The Court, quoting a prior First Department and citing a Court of Appeals case, noted that “Plaintiff submitted evidence to support each of the elements of res ipsa loquitur, namely ‘(1) that the occurrence would not ordinarily occur in the absence of negligence, (2) that the injury was caused by an agent or instrumentality within the exclusive control of defendant, and (3) that no act or negligence on the plaintiff's part contributed to the happening of the event”. As has been established in prior case law, free falling elevator cars or elevator cars that experience a sudden drop does not occur in the absence of negligence normally.
The Decision is critical of the defendant’s argument that res ipsa is not applicable because the property owner was not in exclusive control of the elevator. The defendant argues that because a passenger pushed the emergency stop button, exclusive control was interrupted. The Court noted that this similar argument had been presented and rejected previously by the First Department.
While the Court found it not necessary to consider the plaintiff’s expert affidavit, as an issue of fact has already been established, the Court noted that the opinion of the expert indicated and supported that the accident could have occurred exactly as the plaintiff had described. This provided further support to deny defendant’s motion for summary judgment.
12/07/2017 Moscione v. QPII-43-23 Ithaca Street LLC
Appellate Division, First Department
Property Owner and Manager Find that Not Listening to Elevator Company can be Costly
Plaintiff, a UPS driver at the time, was allegedly injured when the door to an elevator at a building where was he was making a delivery closed on him and failed to re-open. The elevator maintenance company, defendant Guardsman Elevator, was successful on its motion for summary judgment because the contract for maintenance unambiguously indicated that it was not responsible for the elevator door. The Court also noted that the evidence suggested that Guardsman advised the building owner and managing agents of the building that the elevator was in poor shape and Guardsman presented them with a modernization proposal, which was not accepted. The Court granted Guardsman’s motion for summary judgment.
The Court found an issue of fact existed as to whether the defendant owner of the building and defendant managing agent of the building knew about the condition of the elevator. Not surprisingly, the Court cited their receipt of the modernization proposal from Guardsman as evidence they were aware of the poor elevator condition, as well as an indication that they had notice of a problem with the elevator door.
The Court also found that the defendant owner and defendant managing agent were responsible for a negative inference charge for spoliation. After some delays in having an inspection of the elevator, the plaintiff’s expert witness and counsel arrived for the inspection only to find the old elevator had been removed by the new property owner.
11/27/2017 Caiola v. New York SMSA,LP
New York County Supreme Court
Two Doored Elevator Presents Open and Obvious Condition Regardless of Plaintiff’s Knowledge of Second Door
Plaintiff and two companions were allegedly given access to a bathroom on a different floor of a Verizon store, having been directed to an elevator to access the bathroom. While riding the elevator, plaintiff was resting her back and backpack against or near the rear door of the elevator, which she allegedly did not know was present. Upon the rear door opening, plaintiff fell out the back door, striking her head, spine and elbow and causing injuries. Both defendant Verizon, the store owner, and the third-party defendant elevator maintenance company moved for summary judgment.
Both defendants moved for summary judgment, arguing that there was no defect identified, that the condition was open and obvious and that the elevator met all applicable codes. The Court found Verizon met its burden as a matter of law, noting that the condition was readily observable by a reasonable use of plaintiff’s senses and that the expert affidavit submitted noted that the elevator met all applicable codes. The Court found that the defendants both met their prima facie burden for summary judgment and that the burden shifted to the plaintiff to demonstrate a genuine material issue of fact.
Plaintiff did not provide expert testimony in opposition to the motion, failed to show that there was a design defect present in the elevator and failed to convince the Court that even if the Verizon employees had authorized use of the elevator and had not disclosed the second door on the elevator, plaintiff had not met her burden. The Court dismissed the complaint and denied third-party defendant elevator company’s motion as moot, since plaintiff’s complaint had been dismissed.