Premises Pointers - Volume IV, No. 7

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.
 

WHAT PREMISES POINTERS COVERS
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
Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability
Municipal Liability
Nursing Home & Assisted Living Facility Litigation

NOTE FROM THE EDITOR:

Welcome to our Holiday Edition!!
 
First, Happy Hanukkah to those celebrating over the next week. My partner Eric Bernhardt from our Labor Law team and a Labor Law Pointers contributor (see the latest edition here) shared a picture of 10 pounds of latkes he and his wife made which looked too good to eat, though I’m sure they were gone quickly. And Merry Christmas to those getting ready for Christmas Eve and Christmas Day, both of which are right around the corner. If you’re like me, it’s time to kick the holiday shopping into high gear to get across the finish line, so good luck!
 
This month, I am excited to announce the addition of attorney Mirna Martinez Santiago to our firm. Mirna joins our insurance coverage group and has more than 25 years of legal experience. She is also well known for her focus on diversity, equity, inclusion and the elimination of bias and is the founder of Girls Rule the Law, Inc., a not for profit that services underprivileged middle and high school girls. We are thrilled to welcome Mirna to the firm and to the Coverage Pointers team (see the latest edition here).
 
On the Premises Pointers front, columnist Rob Hewitt authored an article with attorney Larry Ross on the aged old question “Who’s on First?” when it comes to sidewalk maintenance. With winter around the corner, it’s a good time for a refresher on this issue. Click here to read the article and get an answer to the question.

Also from the Premises Pointers team, attorneys Pat Curran and Chris Potenza prevailed at the Appellate Division following a hard fought trial victory from Pat Curran, which was successfully defended on appeal by Chris Potenza. See Pat’s column for the fully story, but well done both!
 
On a personal note, I had the privilege of contributing an article to U.S. News & World Report and Best Lawyers “Best Law Firms 2021.”  I shared my thoughts on crisis management and leadership transition during a pandemic. For those interested, here is a link to the article.
 
Lastly, last month I told you about our Firm’s efforts to give back to the community which involved adopting a family through Stone’s Buddies, a program at Oishei Children’s Hospital, which supports patients and families coping with chronic illness. We were able to purchase everything the family asked for and then some, which we hope will make the holidays a little brighter for them.
 
Cheers to you and yours as we ring in 2021!



Jody


And don’t forget to subscribe to our other publications:

Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Employment & Business Litigation Pointers:  This newest addition to our Pointers newsletters aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Contact Joe Brown at [email protected] if you would like to subscribe.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.

Medical & Nursing Home Liability Pointers:  Hurwitz & Fine, P.C.’s newest legal alerts contain timely news on medical and nursing home liability claims, including updates on the impact of COVID-19.  Contact Chris Potenza at [email protected] to subscribe.

Products Liability Pointers: Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, product liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up-to-date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of product liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Brian F. Mark at [email protected] or V. Christopher Potenza at [email protected] to subscribe.

   
Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] and Lani J. Brandon [email protected]

As suspected, we are beginning to see lawsuits stemming from COVID illnesses and deaths. In Florida, a family filed suit against Publix after an employee's death. The suit says the company failed to protect him from COVID-19. Another suit claims the store refused and/or limited mask and glove wearing. Both claims are discussed here. Below are two non-COVID cases – one involving a trip and fall at a bar and another involving a slip and fall on an icy sidewalk adjacent to a restaurant.
 

11/20/20          Nobile v. Trawinski
Appellate Division, 4^th Department
Accident at local tiki bar - judgment of lower court upheld because defendant failed to meet her initial burden of establishing that the alleged hazard did not constitute a dangerous condition.
 
Plaintiff and her husband brought this action to recover damages for injuries sustained by Plaintiff when she tripped and fell over a fire pit at an outdoor tiki bar owned by Defendant.  Defendant appealed, contending that the Supreme Court erred in denying her motion for summary judgment because the condition of the fire pit was open and obvious and that Plaintiff’s conduct was the sole proximate cause of her injuries. In support of defendant’s motion, she had submitted deposition testimony providing that, on the evening in question, Plaintiff was walking back to her table from the bathroom. Plaintiff’s husband had been at the bar with Plaintiff that night, and he testified that the lighting in the whole area was poor. There was no fire in the fire pit and there were no lights illuminating the fire pit. Rather than taking a lighted path back to her table, Plaintiff had taken a direct route across a dark, grassy area. She did not see the fire pit and tripped over it, injuring herself. On appeal, the Court found that Defendant failed to meet her initial burden because her own evidentiary submissions raised issues of fact. The Court noted that, although an open and obvious condition may be relevant to the issue of a plaintiff’s comparative fault, it does not negate a defendant’s duty to keep his or her premises reasonably safe. The Court also noted that “a tripping hazard capable of causing injury may constitute a dangerous condition” and “a landowner with knowledge of a dangerous condition that could be alleviated by illumination may owe a duty to provide adequate lighting.”
 
 
12/9/20            Vasquez v. Giandon Realty, LLC
Appellate Division, 2^nd Department
Summary judgment awarded to out of possession landlord where plaintiff slipped and fall on sidewalk that abutted leased restaurant because landlord lacked notice of the alleged icy condition.
 
Plaintiff commenced this action to recover for personal injuries she sustained when she allegedly slipped and fell on ice on a sidewalk abutting the premises owned by Defendant that Defendant leased to restaurant. Defendant moved for summary judgment and the Supreme Court denied the motion. On appeal, the Appellate Court stated that while “Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain city sidewalks abutting their land in a reasonably safe condition…, it does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable.” The Court concluded that, to prevail on its summary judgment motion, a defendant is required to establish that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied the condition. The Court reversed the judgment of the lower court, finding that Defendant, an out-of-possession landlord, established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not create the alleged ice condition or have actual or constructive notice of its existence.

Nursing Home and Assisted Living Facility Litigation
By: Patrick B. Curran [email protected]

As 2020 draws to a close, we are reflecting on the tumultuous year that the nursing home and assisted living communities in New York have faced since the COVID-19 pandemic began its onslaught in the spring. From facility staff, healthcare providers and residents alike we have bore witness to grief, uncertainty and fear, but also to strength, determination and hope. Time after time, wave after wave, these communities have been asked to rise to new challenges all while dealing with ever changing regulations and PPE shortages. Each time, they have exceeded expectation in their drive to care for and protect the most vulnerable members of society. For this, we thank you, and we wish all of our readers a very Happy Holidays and a joyous New Year.
 
This month, we have several interesting cases to end the year with – The Appellate Court struck down a signed Arbitration Agreement where it was hastily presented to decedent’s daughter who did not have the proper Power of Attorney authority to grant consent, and thus decedent had not agreed to arbitrate arising disputes. We have some good news to share from our team, as a hard fought trial victory from Pat Curran was successfully defended on appeal by Chris Potenza – Plaintiff sought judgment as a matter of law as their only relief which would have required a new trial on a separate matter of law, thus the trial court’s decision not to charge the jury with the Public Health Law was affirmed. Separately, the Appellate Division has permitted a Plaintiff to plead violations of the Public Health Law against an assisted living facility which provided “health-related activities.” And finally, motions for summary judgment were denied where defendants arguments consisted of expert evidence stating that it was medically impossible to determine the cause of death of decedent, as pointing out gaps in Plaintiff’s proof does not establish entitlement to judgment.
 
 
November 12, 2020                Brenda Carver, as Administrator of the Estate of Lucille Houston, v. Dewitt Rehabilitation and Nursing Center et al.
Supreme Court, New York County
Arbitration agreement not enforced where it was signed by decedent’s daughter who did not have authority to do so.
 
In this action for medical malpractice, negligence, and violations of the Public Health Law, Defendant, Dewitt Rehabilitation and Nursing Center, moved for an order compelling arbitration and striking Plaintiff’s claims for punitive damages.
 
Defendant submitted a signed Admission Agreement which including a binding arbitration clause. Plaintiff, in opposition, asserted that her mother, the decedent, had been transported to the facility by ambulance whereupon Plaintiff was presented with numerous forms and advised that they had to be signed in order for the facility to accept her mother as a resident. Plaintiff was not advised as to the contents of the forms and although she did sign them, she did not have authority to agree on behalf of her mother as she did not hold Power of Attorney at that time.
 
The Appellate Court held that although the Agreement was signed by the Plaintiff, there was no evidence submitted that she had the authority to sign it on behalf of her mother, and her status as decedent’s daughter was insufficient to give rise to agency. Accordingly, Defendant had not met their burden in establishing that decedent agreed to arbitrate disputes arising out of her admission to the facility. Additionally, the Court viewed the allegations in the Complaint in favor of the Plaintiff and held that a claim for punitive damages under Public Health Law 2801-d was adequately stated.
 
 
November 13, 2020                Dianna Petrella v. Fairport Baptist Home
Appellate Court, Fourth Department
Plaintiff’s appeal denied where relief sought was judgment as a matter of law that would require a new trial on a separate and distinct cause of action.
 
Plaintiff was a middle-aged female with underlying multiple sclerosis which limited her mobility upon admission to Defendant’s rehabilitation facility following shoulder surgery.  A pressure ulcer on her coccyx was noticed shortly after admission, was treated, and healed.  Plaintiff alleged negligence and fraud, seeking punitive damages for alleged intentional and fraudulent documentation and manipulation of Plaintiff’s treatment records.  The jury rejected Plaintiff’s fraud and punitive damages claim and awarded a modest sum for past pain and suffering. 
 
On appeal, Plaintiff sought judgment as a matter of law on a violation of Public Health Law 2108-d, which would have entitled her to attorney’s fees, on the basis that the jury could not have found negligence without finding a violation of the Public Health Law regulations concerning the care and treatment of pressure sores.  Plaintiff’s appeal was denied.
 
 
November 13, 2020                Kevin M. Cunningham, as Administrator of the Estate of Patrick Cunningham v. Mary Agnes Manor Management, LLC et al.
Appellate Court, Fourth Department
Plaintiff permitted to plead causes of action for violations of the Public Health Law against an Assisted Living Facility which provided additional health-related services.
 
In this wrongful death action based on negligence and violation of the Public Health Law, Plaintiff appealed from an order dismissing Plaintiff’s first amended complaint and denying Plaintiff’s cross motion for leave to file a second amended complaint.
 
With respect to Plaintiff’s causes of action for negligence premised on a theory of vicarious liability based on the doctrine of piercing the corporate veil, and additional theories of agency and joint venture, the Appellate Court held that Plaintiff had sufficiently pled allegations that Defendants ratified the acts of one another regarding the operation of the facility; allocation of resources, and mismanagement of the facility, and that corporate formalities existed as conduits to avoid obligations to the facility’s residents. As such, the Appellate Court reinstated those causes of action.
 
With respect to Plaintiff’s causes of action for violations of the Public Health Law, Defendants argued that the facility is an Assisted Living Facility and thus not subject to those sections of the Public Health Law. Plaintiff alleged however that in addition to residential care, the facility provided “health-related services” including specialized dementia care, dietary supervision, hygiene and on-site medical and psychological care. Affording every possible favorable inference to Plaintiff, the Appellate Court held those facts to be sufficient to overcome Defendants’ argument, and the Public Health Law causes of action were also reinstated.
 
 
November 20, 2020                Yefim Meskin, as Administrator of the Estate of Isaak Meskin v. David C. Javier M.D. et al.
Supreme Court, Kings County
Motions for summary judgment denied where Defendants argued that it was medically impossible to establish decedent’s cause of death, as pointing out gaps in Plaintiff’s proof does not establish entitlement to such relief.
 
This action for negligence, medical malpractice and wrongful death arises from the death of Isaak Meskin, a 64-year old man who suffered from Parkinson’s disease and schizophrenia for which he received home health aide from Defendant, Premier. Edward Garcocki, an aide employed by Premier, attended to Mr. Meskin four days per week, and on July 30, 2016 he brought Mr. Meskin to the emergency room with complaints of pain. Mr. Garcocki was advised by hospital staff to go home, that Mr. Meskin would either be admitted to hospital or taken home by ambulette staff and provided him with a number to call for updates.
 
Later that day, Mr. Meskin was deemed improved and stable for discharge. He was transported home by Defendant, Senior Care who brought him into his home and left, though he was too weak to sign the drop-off paperwork. When Mr. Garcocki arrived the following day, there was no answer by Mr. Meskin, and he assumed that the man had been admitted to hospital. No attempt was made by Premier to contact the hospital or Mr. Meskin’s family. Mr. Meskin was found deceased in his home on August 8, 2016 in an advanced stage of decomposition.
 
Defendants Premier and Senior Care filed motions for summary judgment and submitted expert affidavits stating that, as it was medically impossible to determine Mr. Meskin’s cause of death since no autopsy had been performed, Plaintiff could not prove that Defendants’ actions or inactions proximately caused his death. The Appellate Court held that there existed triable issues of fact as to whether Defendants had breached their duty of care to decedent and further, that a movant does not establish entitlement to summary judgment by pointing to gaps in Plaintiff’s proof. As such, Defendants motions for summary judgment were denied.

Legislative Update for Litigators (and Friends)
By: Anastasia M. McCarthy [email protected]
 

Dear Readers,

Like many, my household celebrates Hanukkah and Christmas every year.  While these celebrations are noticeably smaller and include far less travel, we are still trying hard to keep things fun—we picked out our Christmas tree right after Thanksgiving (and have placed it back in the stand [which has now been replaced] multiple times since the cat has taken an intense interest in it this year) and celebrated the first few nights of Hanukkah this week.  Next week, we will embark on a factory-level cookie baking endeavor and begin the late night assembly of surprisingly complex toddler toys (why did the kitchen playset come in two boxes?!?) If you’re looking for me, I’ll probably be in my basement trying to figure out the absurd number of widgets, gadgets, and gizmos we purchased for Josie this year.  We may have gone overboard.

However you celebrate, I hope the end of the year brings you health and happiness.  Just remember, if nothing else, 2020 certainly set a very low bar for 2021.

MINNESOTA BILL, SF 4606, MOVES FOR SWEEPING PROTECTIONS FROM TORT LIABILITY

Earlier this year, a robust bill aimed at drastically limiting liability in COVID-19 related personal injury, wrongful death, and economic loss claims was introduced into the Minnesota legislature.  The Act’s provisions, which are all retroactively applied beginning March 13, 2020, exempt almost anyone in the State from liability in all but a very limited number of circumstances (i.e. where the offending party acted recklessly or intentionally). The Act also creates a “Minimum Injury Requirement” for injured plaintiffs and sets forth a “Safe Harbor” defense for individuals and entities who may have caused harm but were ultimately compliant with Government Guidance at the time the harm arose.  
   
This Act, if ultimately passed, will certainly be one to watch.  Not only do we expect to see similar bills pop up across the country (especially in “tort reform states”), but this law (especially its retroactive application) is bound to be challenged by the Plaintiffs Bar.

In addition to imposing a “minimum injury requirement” and a Safe Harbor provision, the proposed legislation places extreme limits on liability in premises liability and product liability cases.  Specifically: 
 

• IN PREMISES LIABILITY CASES (with the exception of claims arising under the Workers’ Compensation law): 
  • Owners or occupants of commercial, industrial, governmental, recreational or residential properties, who directly or indirectly invite or permit any person onto their properties, owe no duty to (1) eliminate or reduce the risk of contracting or spreading COVID-19 OR (2) to warn people entering the premises of any risk of contracting or spreading COVID-19.
  • Similarly, owners/occupants of these properties cannot be liable for injury, damage, death of a person, or economic loss related to COVID-19 unless the owner (1) willfully or recklessly disregards a substantial and unnecessary risk that a person would be exposed to or contract COVID-19 OR (2) intentionally exposes a person to, or causes a person to, contract COVID-19.

• IN PRODUCTS LIABILITY CASES
  • Any person (the definition of which includes an individual, association, not-for profit or nonprofit entity, religious organization, or charitable organization and its officials, agents, and employees) who designs, manufactures, labels, sells, distributes, or donates a “Qualified Product” to be used by a government entity, health care professional or facility, first responder, or other essential business shall not be liable in a civil action alleging an act or omission arising out of, or relating to, use of the Qualified Product.  **As an aside, a “Qualified Product” means (1) PPE used to prevent the spread or contracting of COVID-19; (2) medical devices, equipment and supplies used to diagnose or treat COVID-19 including products that are used or modified for an unapproved use to diagnose or treat COVID-19 or to prevent the spread of COVID-19; (3) medical devices, equipment, or supplies used outside of the product’s normal use to treat COVID-19 or to prevent the spread of COVID-19; (4) medications used to treat COVID-19 including prescribed or dispense for off-label use to attempt to treat COVID-19; (5) tests to diagnose or determine prior exposure or immunity to COVID-19; (6) components and constituent materials of a qualified product; and (7) products and technologies used to enhance the use or effect of a qualified product.
  • Any person who designs, manufactures, labels, sells, distributes, or donates household cleaning/disinfecting supplies or personal protective equipment in response to COVID-19, who does not design or manufacture such products in the ordinary course of the person’s business, shall not be liable in a civil action alleging an act or omission arising out of or relating to the administration or use of the product.
  • An exception to the limited liability for defective products does not extend, however, to: persons with (1) actual knowledge that the qualified product, household cleaning or disinfecting supply, or personal protective equipment was defective when put to the use for which the product, supply, or equipment was manufactured, sold, distributed, or donated; and who (2) acted with complete indifference to, or with conscious disregard of, a substantial and unnecessary risk that the qualified product, household cleaning or disinfecting supply, or personal protective equipment would cause serious injury to others, or acted with intent to cause harm.

• THE MINIMUM INJURY REQUIREMENT (Does not apply to cases where the act or omission that is the basis of the legal action was intended to cause harm or to threaten exposure to COVID-19)
  • A claimant cannot file a civil suit for personal injury, wrongful death or economic loss related to COVID-19 if the injured person (1) was NOT diagnosed with, or did not experience symptoms consistent with, COVID-19; (2)  was diagnosed with COVID-19 while asymptomatic; OR (3) was diagnosed with COVID-19 but did not require inpatient hospitalization or did not experience “serious illness” or death.  *Series illness is defined as medical illness, physical injury, or a condition that renders the injured person unable to engage his usual or customary daily activities for at least 14 days.

• SAFE HARBOR
  • Any person (meaning, individuals, associations, entities, organizations and their employees, officials, and agents) conducting business in Minnesota cannot be liable in any civil action for injury, death, or economic loss related to COVID-19 if the act or omission at-issue was compliant or consistent with governmental (federal, state, or local) guidance in place at the time of the alleged act or omission.   Where multiple, conflicting pieces of guidance were in place at the time, the person is entitled to safe harbor if the act or omission was compliant or consistent with any written guidance from a government entity.
  • Notably, guidance is specifically defined as any written policy, procedure, regulation, or executive order related to COVID-19 by a federal, state, or local government agency.

Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
 

Greetings Subscribers!
 
The Bills looked great last week and had another challenging matchup with the Steelers on Sunday in a game featuring two potent offenses. I am pleased to report that the H&F league’s highest scoring regular season team for the second consecutive year is none other than yours truly! Shout out to Marc’s Trial Lawyer (Webb) for making it close, losing by only 9.46 points (because of Tyreek Hill’s debacle on SNF), which was 132.52 more points that Maxwell’s House’s third highest scoring team. Good luck to those who made the fantasy football playoffs.
 
This month, I report on two very interesting cases. The first involves a case where the court invoked the drastic remedy of precluding evidence based on the failure to provide court-ordered discovery, which requires a showing of willful and contumacious conduct. The second is another discovery case flowing from the Court of Appeals decision, Forman v Henkin, demanding plaintiff’s Facebook, Snapchat, and Instagram accounts. If you have a social media demand or response you wish to discuss, just reach out and I will be more than happy to discuss strategies to help you navigate your discovery issues.
 
Until next year, Merry Christmas and Happy New Year!
 
Marc


11/12/20          Llanos v Casale Constr. Servs., Inc.
Appellate Division, Second Department
The assertion by plaintiff’s counsel that he first learned of the names of two nonparty witnesses “two days after the [trial readiness stipulation] was submitted” was insufficient to demonstrate that it was not previously known to plaintiff that those two witnesses possessed material and necessary information to the prosecution of the action.
 
Plaintiff allegedly was injured when she fell into a 20-foot deep trench while walking in the parking lot at defendant’s amusement park. After the parties represented to the trial court that all depositions had been completed, the parties executed a trial readiness stipulation stating all discovery is completed and all court-ordered disclosure “has been completed or waived and the matter is ready for trial.”
 
The next day, plaintiff disclosed two nonparty witnesses who allegedly observed the condition of the site during the afternoon of plaintiff’s accident. The trial court granted defendant’s order to show cause to preclude, pursuant to CPLR § 3126, plaintiff from introducing at trial the testimony of, or any evidence obtained from, those two nonparty witnesses.  
 
The First Department affirmed the trial court’s inference of plaintiff’s willful and contumacious conduct in failing to disclose the name of those two witnesses until after the trial readiness stipulation was so-ordered by the court, notwithstanding defendant’s numerous discovery demands and compliance conferences orders directing the completion of nonparty depositions.
 

11/17/20          Abedin v Osorio
Appellate Division, First Department
The trial court improvidently exercised its discretion in denying defendant’s motion to compel plaintiffs to produce the last known addresses and phone numbers of plaintiff’s three friends, and authorizations to obtain records from  plaintiff's Facebook, Snapchat and Instagram accounts.
 
After depositions, defendant served a discovery demand on plaintiffs requesting disclosure of the last known addresses and phone numbers of three of plaintiff’s friends, and authorizations to obtain records from plaintiff’s Instagram, Facebook, and Snapchat accounts. After plaintiff refused, the trial court denied defendant’s motion to compel plaintiffs to comply with the discovery demand.
 
The First Department reversed as defendant demonstrated that records from plaintiff’s Facebook. Snapchat, and Instagram accounts were “reasonably likely to yield evidence” regarding the alleged claims suffered as a result of the accident, citing Forman v Henkin. Additionally, the Court held defendant demonstrated that its request for the last known addresses and phone numbers of three of plaintiff’s friends were reasonably calculated to lead to the discovery of information bearing on plaintiff’s claims.

Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues
By: Robert E.B. Hewitt III [email protected]

Dear Readers,
 
Welcome to another edition of my column in Premises Pointers. At the Hewitt Household, we are decorated inside and out and the tree is up. We are trying to have a festive season in difficult times and look forward to a quieter Christmas. Thanksgiving was just us but that wound up being relaxing and fun in its own way. The boys have made their lists for Santa and are looking forward to his midnight visit. I hope you all have a Happy Holiday Season.  
 
We have a couple of cases this edition. In an elevator case, the Court applied the Espinal case to find the maintenance company assumed the duty by contract to maintain the safety of the elevators completely displacing the owner and management company and could be liable to plaintiff, an injured nonparty to the contract. The contract was very comprehensive as to their duty as to the elevators.  In one dog bite case, although the dog would sometimes jump up on people to greet them, this was held not to be knowledge of any vicious propensities justifying holding the owner’s liable for a subsequent dog bite.
 
Until next time,
 
Rob
 

December 8, 2020      Sanchez v. 1067 Fifth Avenue Corp.
Appellate Division First Department
Elevator maintenance company had duty to plaintiff due to its broad contract which entirely displaced the responsibility of owner and management company to maintain the safety of the building’s elevators.

Plaintiff alleged that while she was attempting to exit the service elevator onto the sixth floor landing of 1067 Fifth Avenue, the inner gate of the elevator closed on her, pinning her right shoulder between the gate frame of the door, and descended to the first floor of the building. As the elevator descended, plaintiff injured her shoulder, neck, and back when she pulled her arm free. 1067 Fifth and Elliman were the owner and manager, respectively, of the building. Defendant American Elevator and Machine Corp. (American) was an elevator maintenance company retained by 1067 Fifth and Elliman to perform maintenance on the building's elevators, and VDA was hired by American to consult on a project to modernize the elevators.
 
The appellate Court found Plaintiff failed to establish through the use of direct evidence that there was an issue of fact whether any of the defendants had actual or constructive notice of the defect that caused her injury. The building's superintendent did not receive any complaints about the defect, and American and VDA's mechanics and engineers had never heard of a similar condition. Plaintiff herself testified that she had never seen the elevator move before the inner gate was shut. Nevertheless, plaintiff could still establish an issue of fact on the issue of defendants' negligence under a theory of res ipsa loquitur.
 
As for res ipsa loquitur, which applies when an accident does not occur ordinarily unless there was negligence, there was no dispute that  element was satisfied However, the third requirement of res ipsa loquitur, that the accident be caused by an agency or instrumentality within the exclusive control of the defendant has not been met as to 1067 Fifth and Elliman, the owners and management company, since they had ceded all maintenance and repair responsibility to American. American and VDA argued that they cannot be liable to plaintiff, even under a res ipsa loquitur theory, since their contracts were with 1067 Fifth and not intended to benefit plaintiff. However, under the terms of its contract with 1067 Fifth, American was responsible for providing "full comprehensive maintenance and repair services" for the elevators, which included maintaining "[t]he entire vertical transportation system," including "all engineering, material, labor, testing, and inspections needed to achieve work specified by the contract." Further, under the terms of the contract, maintenance "include[s], but is not limited to, preventive services, emergency callback services, inspection and testing services, repair and/or direct replacement component renewal procedures." The contract also provided for American to "schedule [ ] systematic examinations, adjustments, cleaning and lubrication of all machinery, machinery spaces, hoistways and pits," and to do all "repairs, renewals, and replacements . . . as soon as scheduled or other examinations reveal the necessity of the same." Further, American agreed to provide emergency call-back service 24 hours a day, 7 days a week. Given such broad contractual responsibilities, American's contract can be said to have "entirely displaced" the responsibility of 1067 Fifth and Elliman to maintain the safety of the building's elevators, which gave rise to a duty owed directly to plaintiff by American (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002  However, Espinal does not apply to VDA. VDA contracted with American to serve as a consultant on the modernization project, and while VDA may have observed inspections of the elevator, it did not contract with American to provide comprehensive maintenance.  Thus VDA was granted summary judgment.
 

November 25, 2020   Costanza v. Scarlata
Appellate Division Second Department
The fact dog jumped on people occasionally when greeting them did not establish vicious propensities.

On January 2, 2015, the plaintiff was bitten on her face by the defendants' dog. The plaintiff’s mother commenced a personal injury action against the defendants, alleging, inter alia, that they harbored a dog with vicious propensities. The defendants moved for summary judgment dismissing the complaint, arguing that they had no knowledge that the dog had vicious propensities.  The Appellate Division affirmed the trial’s court’s dismissal of the action..
 
The normal standard in a dog bite case is that he owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation, and not just prior bites. There is no “one free bite.”  Evidence tending to prove that a dog has vicious propensities can include prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they were not aware, nor should they have been aware, that the dog had ever bitten anyone or exhibited aggressive behavior prior to the attack. The Court held that   the fact that there was evidence the dog occasionally jumped on people when greeting them was insufficient to raise a triable issue of fact as to whether it had vicious propensities. Further, the nature and severity of the attack does not demonstrate that the defendants knew or should have known of the dog's alleged vicious propensities. 

Slip-and-Fall Law
By: Brian M. Webb [email protected]
 

Greetings Readers:
 
And just like that…it’s December!  In what we can all agree has been the most unusual year, I have alternated back and forth between thinking that the year has been going slowly and the idea that the year has been going quickly.  The fact that we are already only a few weeks from 2021 confirms the latter appears to be the case.  I think I can speak for everyone when I say that the New Year cannot come quickly enough and hopefully things can start to progress gradually back towards normalcy sooner rather than later.
 
This month brings us a trio of cases out of the Second Department that continue to highlight some of the key elements of slip-and-fall cases in the State.  First, in Hayward the Court deals with the rare instance of a trial court granting summary judgment to a defendant based on an “open and obvious” argument.  The result is predictable, but useful in that it highlights just how hard of an argument to win the “open and obvious” route is.  Next, Chow is a good example of a plaintiff lacking adequate proof to trigger one of the exceptions to the Espinal doctrine.  Lastly, Hus highlights how just general arguments that one was not negligent is simply not enough to warrant summary dismissal of a claim.
 
Here’s to everyone having a safe and fun holiday season and next time we speak 2020 will finally be behind us!
 

 
October 21, 2020                    Hayward v. Zoria Housing, LLC
Appellate Division, Second Department
Second Department reverses lower court’s grant of summary judgment in favor of construction defendant based upon issue of fact as to whether or not condition was “open and obvious.”
 
Plaintiff was injured when she alleged tripped and fell on a mudsill outside of her apartment building.  Mudsills are the pieces of wood located underneath scaffolds that serve as temporary sidewalk/walkways when construction is taking place.  Here, the construction defendant successfully argued to the trial court that the mudsill was an open and obvious condition and thus they had no duty to remedy the same.
 
The Second Department did not agree.  While the Court did recite the standard that, while defendants have a duty to maintain properties in a reasonably safe condition, they do not have an obligation to protect or warn against conditions that are open and obvious and not inherently dangerous.  However, the Court stressed that the issue of whether or not something is open and obvious is a task best suited for a jury to decide.
 
In applying that logic to this case, the Second Department decided that, while the defendant did make a prima facie case that the mudsill was open and obvious, the plaintiff subsequently created enough of an issue of fact to preclude summary judgment.  Specifically, the Court focused on testimony given by the plaintiff that the lighting in the subject area was faulty, which arguable made what otherwise would’ve been open and obvious more difficult to see.

 
November 25, 2020                Chow v. Valley Stream Union Free School District 30
Appellate Division, Second Department
Second Department reverses lower court’s denial of defendant’s summary judgment motion and orders the dismissal of action as against tree removal service.
 
Plaintiff was injured when she alleged tripped and fell because of a 12-inch diameter hole located on a school property.  The plaintiff claimed that the hole was created by the moving defendant – a tree removal company that performed some work on the property earlier.  The moving defendant’s motion for summary judgment on Espinal grounds was denied by the trial court.
 
The Second Department disagreed and order the granting of the defendant’s motion.  As we know, Espinal absolves third-party contractors from liability to individuals injured on a property on which they’ve worked unless one of three exceptions applies.  Here, plaintiff tried to claim that the defendant “launch[ed] a force or instrument of harm” by created the subject hole, thus triggering that exception.  However, defendant present competent evidence that, after its work was complete, there were no holes anywhere in the area in which it performed worked that fit the plaintiff’s description of the one that injured her.  Plaintiff apparently had no rebuttal that was anything but speculative.  As such, the tree removal defendant was entitled to summary judgment because it did not owe any duty to the injured plaintiff.
 
 
December 2, 2020                   Hus v. 10 Ave. Realty, LLC
Appellate Division, Second Department
Second Department affirms trial court’s denial of defendant’s summary judgement motion due to lack of sufficient proof of negligence.
 
Plaintiff was injured when she allegedly slipped and fell on ice located outside of a building owned by the defendant.  The defendant unsuccessfully moved the trial court for summary judgment dismissing the complaint based upon a theory that it had adequately performed its snow removal duties and thus was not negligent.
 
The Second Department agreed with the lower court’s denial of said motion and affirmed the decision.  Their decision was founded on the fact that defendant failed to meet its initial burden of making a prima facia case that it fulfilled its duty.  Defendant claimed that its superintendent had cleared the area sufficiently prior to plaintiff’s fall.  However, the combination of the superintendent being unable to provide any specifics regarding his snow removal activities and the plaintiff’s testimony that the ice was about 1 inch thick, prevented the Court from finding that defendant satisfied its initial burden of showing that there was no issue of fact regarding its argued lack of negligence.

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