Premises Pointers - Volume IV, No. 8

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:

We made it to 2021!! Like many of you, I happily welcomed in the new year and am hopeful about the future (bring on the vaccine!). I am also beyond proud of our team here at Hurwitz & Fine for successfully navigating the last year with me.
 
This month I am again excited to announce another new addition to our firm: Attorney Scott Storm has joined us as a member. Scott began his legal career in 1997 and has a multi-state and regional insurance coverage practice of first-party property and third-party liability coverage matters of commercial, personal property and casualty lines. Scott is admitted to practice in both New York and Pennsylvania. He is a member of the Buffalo Claims Association, International Association of Special Investigation Units and the New York State Chapter of Special Investigation Units. 
 
Also in the news this month, Attorney and Premises Pointers contributor Marc Schulz (who also “moonlights” for Labor Law Pointers), recently published an excellent article on contractual indemnification. The article is called Contractual Indemnification in Labor Law §§ 240(1) and 200 Cases and The Different Applications Between Construction Contracts and Leases. Marc and attorney David Adams, who leads our firm's Labor Law Group, will also be presenting a webinar next week on the same topic. You can sign up here to participate.
 
Last, but not least, and in case you haven’t heard…the Buffalo Bills are facing the Baltimore Ravens on Saturday in a divisional playoff game. To say there is football fever in Buffalo right now would be an understatement. Therefore, I’ll close with:

Go Bills!

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. 

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 

The restaurant industry has been hit extremely hard by COVID since the start of the pandemic, particularly in New York State. This week, Erie County restaurants made the headlines with a court victory allowing them to reopen. As a result of spiking COVID numbers in November, Erie County, New York, was designated an orange zone by New York State. For restaurants, this meant they were again closed for indoor dining. A lawsuit was filed on behalf of 90 Erie County restaurants against New York State seeking an order allowing them to reopen for indoor dining. On Wednesday, January 13^th, Judge Henry J. Nowak ruled in favor of the restaurants and granted their request for a preliminary injunction. Yesterday, and in the face of this decision, the State said that all New York State restaurants, even those in an orange zone, can open for indoor dining at 50% capacity. So, at least for now, indoor dining will resume.
 

12/23/20          Derosa v. Zaliv, LLC, et al.
Appellate Division, 2^nd Department
Judgment of lower court reversed because restaurant Defendants established the cause of the fall was a wet staircase due to ongoing rain.

Plaintiff sued to recover damages when he allegedly slipped and fell on the landing of an exterior staircase leading to the entrance of a TGI Friday’s restaurant in Brooklyn. Plaintiff alleged Defendants were negligent in the ownership and maintenance of the staircase on their premises. All defendants moved for summary judgment and all motions were denied. The Appellate Court reversed the Supreme Court’s order on the grounds that the mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition. The Court found that Defendants had established their entitlement to summary judgment by showing that Plaintiff's slip and fall occurred solely because that area was wet due to precipitation. The transcript of Plaintiff's deposition testimony was submitted, which indicated that the location where the Plaintiff slipped and fell was wet due to the rain that had fallen and was falling at the time of his accident.
 

12/14/20          Panagatos v. Petsmart, Inc.
United States District Court, Eastern District of New York
Defendant Petsmart’s motion for summary judgment was granted because the plaintiff could not prove how long the water he slipped on in the bathroom floor was present.

In this slip and fall case, plaintiff, a Petsmart shopper, fell in the restroom of the store. He did not notice any water on the floor when he walked in but after the fall, saw water that he described as the floor just being mopped and not dry.  There were puddles. An incident report was prepared. There was no surveillance video. The bathroom was inspected in the morning and several times throughout the day. There were no maintenance logs maintained. If any store employee observed water on the floor, it was the store employee’s responsibility to clean it or notify someone. No water was observed on the floor prior to the plaintiff’s fall. There was no evidence regarding when the water got onto the floor or where it came from.  There was proof in the record that it was not there at approximately 11:20 a.m. when an employee was last in the bathroom and it was there when Plaintiff slipped at approximately 12:35 p.m. Absent evidence of notice, the court concluded it would be speculative to conclude the water was present for sufficient amount of time for someone to discover it. Accordingly, Petsmart’s motion was granted.

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

Dear Readers,

I hope that you had an enjoyable Holiday season. Personally, I was sad to see it end.  Although I missed spending time with my parents and extended family this year, I enjoyed experiencing the Holiday through the eyes of my 17-month-old toddler.  Even though we had to put a fence around our Christmas tree and place our menorah on a very high bookcase, it was a lot of fun to see her experience the traditions of our mixed-faith family.

In any event, onward to 2021! In New York legislation news, the New York State Legislature is back in session and new bills are already being introduced into both houses in droves.  For those of you unfamiliar with the legislative process, once a bill is introduced, it is referred out to relevant committee(s) for discussion and amendment.  Eventually, the bill exits committee and travels back to the Assembly and Senate for voting purposes.  If a vote to pass the legislation succeeds, the bill is then sent to the Governor’s desk for signature.  The Governor has 10 days to sign or veto; failure to sign within ten days results in the silent “pocket” veto. In the coming months, you can expect to see this column track, analyze, and discuss legislation impacting civil litigation in New York State. 

While we wait to see what’s introduced and prioritized by the legislation this year, I have two Child Victims Act decisions to discuss this month.


January 6, 2021           Michael Harmon v. Diocese of Albany and St. Catherine’s Center for Children
Supreme Court, Albany County  
The Court limits discovery of personnel and independent settlement program records.

Plaintiff, a former resident of a residential children’s group home owned and operated by the defendants, filed a CVA lawsuit for childhood sexual abuse by a Diocese Priest.  As the case made its way into discovery, a number of discovery disputes erupted.  The Court:

• Determined that plaintiff was entitled to the tortfeasor’s personnel file as well as to the personnel files of other priests who had been credibly accused of child sexual abuse with some limitations—the basis for this decision was multifaceted. 

FIRST, defendant advanced an affirmative defense that they their actions, upon learning of child sexual abuse, were “in conformity with the profession best practices and with the available knowledge in the community and met applicable standards at that time.” Moreover, in support of this defense, defendants intended to introduce the testimony of an expert witness. In light of this affirmative defense (and intended use of an expert), the Court determined that the defendants opened themselves up to discovery on the issue of what they knew about sexual abuse within the diocese.  More particularly, the Court stated “[t]o allow the defendants to base their defense on what they knew about the clergy sex abuse problem, but at the same time withhold that information from plaintiff, would be fundamentally unfair and highly prejudicial to plaintiff.”  

SECOND, because the defendants owed a duty in loco parentis to the plaintiff, the Court determined that the plaintiff is entitled to discovery on the issue of prior sexual assault on minors within the facility at-issue because it is relevant to what was foreseeable and therefore preventable (i.e. on the issues of both actual and constructive knowledge). 

HOWEVER, because defendants showed that disclosure the materials sought is potentially burdensome (when weighed against the fact that defendants opened the door to disclosure by basing an affirmative defense on “the available knowledge in the community”), the court limited disclosure (1) only to files containing a reference to possible misbehavior occurring before 1985 when plaintiff alleges his ended; (2) only files containing a reference to possible misbehavior occurring before 1985; and (3) allowing defendants to withhold privileged material, serve a privilege log, and submit such material to the Court for an in camera review.

• Determined that plaintiff was also entitled to records related to the Diocese’s Independent Mediation Assistance Program, again with some limitations.  Specifically, the Court (1) required that defendant redact the names of any and all alleged victims, as well as the information that would identify them; (2) limited disclosure to files containing a reference to possible misbehavior occurring before 1985; and (3) allowing that defendants could submit a privilege log and submit such materials for an in camera review.

 

January 12, 2021         LG 60 Doe v. Town of Lancaster New York, Lancaster Central School District, Lancaster Central School District Board of Education, Hillview Elementary School
New York State Supreme Court, Eighth Judicial District, Erie County
Defendants’ motion to dismiss vicarious liability and punitive damage claims succeeds.

Plaintiff alleged that she was repeatedly sexually assaulted by a janitor at her elementary school between 1961-1967.  Defendants moved to dismiss two of plaintiff’s causes of action—one for punitive damages and the other arguing that defendants were vicariously liable for the bad acts of its janitor. Defendants also sought to have the Complaint dismissed against the elementary school insofar as it had been named as an independent defendant.

The Court granted defendants’ motion, holding that first that generally, an employer cannot be vicariously liable for an employee’s sexual abuse of a child.  The exception are circumstances in which plaintiff can show that the abuse was committed for some reason other than the tortfeasor’s personal desire or drive to abuse and instead abused the plaintiff in furtherance of a defendant’s business.

Second, the Court held that a municipality cannot be liable for punitive damages flowing from employee misconduct absent express legislative authorization. 

Finally, third, the Court dismissed Hillview as a separate entity as the school was not a legal entity capable of being sued.

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

Greetings Subscribers!

What a great time it is to be a Bills fan! Hopefully, the Bills can take care of business against the Ravens this weekend and contain last year’s MVP. I am also pleased to report that yours truly took down Marc’s Daddy (Mr. Peiper) to win the H&F fantasy football league for the second consecutive year. Life is good. I hope the same for you and your families, along with good health.
 
This month, I report on two discovery cases that involve vacating plaintiffs' note of issue and certificate of readiness, as well as vacating a conditional order of dismissal based on law office failure. Remember, deadlines in court orders matter and if you miss a deadline, you better be prepared to tell the court why or risk having your case thrown out.
 
Until next time, GO BILLS!
 
Marc


12/39/20          Jablonsky v Nerlich
Appellate Division, Second Department
Defendants not entitled to additional discovery where the trial court directed the completion of discovery by a date certain and defendants failed to demonstrate that a material fact in plaintiff’s certificate of readiness was incorrect or failed to comply with the relevant court rules.
 
Plaintiff allegedly slipped and fell on ice in the driveway of a house owned by defendants, where he resided as a tenant. As relevant here, the trial court denied defendants’ motion to vacate the note of issue and to compel plaintiff to submit to a neurologist examination.
 
The Second Department affirmed as defendants had ample opportunity to engage in discovery, including the opportunity to notice and complete medical examinations of plaintiff following the completion of plaintiff’s deposition. The parties’ stipulation at the time of the certification conference provided deadlines for outstanding discovery, including an orthopedic examination. Under this circumstances, the court held that defendant was not entitled to vacatur of the note of issue due to plaintiff’s failure to submit to an additional medical examination that was neither noticed until after the matter was certified for trial, nor contemplated by the stipulation executed by the parties at the time of certification.
 
 
11/17/20          Bura v Westfair Corp.
Appellate Division, Second Department
Plaintiffs could not provide a reasonable excuse based on law office failure for not complying with the trial court’s conditional order dismissing the complaint for failing to provide outstanding discovery.
 
After plaintiffs’ repeated failure to comply with discovery demands, despite court orders, the trial court issued a conditional order of dismissal, directing defendants to move to dismiss the complaint if plaintiffs failed to provide the outstanding discovery. When plaintiffs failed to comply and failed to oppose defendants’ motion to dismiss the complaint based on the conditional order of dismissal, which was granted by the trial court. Almost eight months later, plaintiffs moved to vacate that order dismissing the case, which was also denied by the trial court.
 
The Second Department affirmed. To vacate their dismissal, plaintiffs were required to demonstrate that they had a reasonable excuse and a potentially meritorious claim. The court found plaintiffs’ claim of law office failure based on alleged, unspecified misconduct of an unidentified paralegal whose employment allegedly was terminated insufficient to establish a reasonable excuse. Accordingly, the court declined to reach the issue of whether plaintiffs have a potentially meritorious case.

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

Dear Readers,
 
Welcome to another edition of my column in Premises Pointers. Unfortunately, we are in the bleak period of the winter with the holidays over and the lights down.   Our Buffalo office, however, is cheered up by the Buffalo Bills’ playoff win.  As for me, on Long Island, I certainly will route for them against the Ravens. One of the great football moments, however, as a thirteen year old occurred when the Giants beat the Bills 20-19 in Superbowl XXV, when Scott Norwood’s field goal attempt for the Bills went wide right.
 
We have a couple of cases this edition. In an elevator case, sort of, an employee of Modells was injured in an elevator when a light fixture covering fell on her head when she was in the elevator. The Court found the owner had a nondelegable duty to keep the premises safe and would not dismiss the owner on summary judgment. It would also not dismiss the elevator maintenance company, finding the maintenance agreement potentially broader than an “oil and grease” only contract as the company had argued.  The other case is a dog bite case involving injury to a human and the death of another dog. The Court found the owner clearly had knowledge of the dog’s vicious propensity as it had admitted the dog had attacked a human and dog on a prior occasion in  a similar attack.
 
Until next time,
 
Rob
 

January 5, 2021         Mitchell v. Fulton 2000 Partners
Supreme Court, Kings County
Owner of property could not win on summary judgment where light fixture in elevator fell on plaintiff’s head as it had a nondelegable duty to keep property safe.

Plaintiff alleges she was injured by a falling  light fixture in the elevator of her former employer Modells. When the elevator started ascending, the light fixture coverings, a metal grid covering the elevator’s ceiling lights, fell on her head and left thumb.  Plaintiff also alleges that the various defendants owned, maintained, managed, inspected, serviced, operated and/or controlled 464-466 Fulton Street including the automatic, self-operated elevator located therein.
 
Defendant McGlynn contracted to service the elevator and argued the claim should be dismissed against it as there was no notice that the light fixture and its covering was defective. Nor did it own, control, repair, maintain or bear responsibility for the ceiling fixture of the metal grid covering. It had a limited oil and grease contract as to the premises’ elevator but not over the light bulbs or grid. It also alleged had no duty or contract to inspect the lights or adjust the grid. First, the purported lack of a contractual obligation, as above mentioned, according to McGlynn means it owes plaintiff no duty and cannot be liable for the alleged injury. McGlynn alternatively claims that plaintiff has made no showing that McGlynn created or exacerbated a dangerous condition or had actual or constructive knowledge of such condition. Rather, records show no complaints concerning the light fixture before the incident and no work by McGlynn relating to the light fixtures. In addition, McGlynn argues that plaintiff cannot rely on res ipsa loquitur to infer negligence because plaintiff cannot clearly show what caused her injuries, and therefore, has not eliminated all reasonably possible accident causes other than defendant's negligence. In other words, McGlynn argues that plaintiff presents no evidentiary fact establishing negligence which she or any cross-claiming defendant may use.
 
460 Fulton, one of the property landlords of the Modell' s store, argued that Modell's lease required Modell's to keep the premises in good working condition and that Modell' s was responsible for all nonstructural items on the premises. It submitted that plaintiff had not demonstrated, as required, that movant or any other defendant created an allegedly dangerous or defective condition or had actual or constructive notice of such condition. The absence or lack of complaints or previous problems with the light fixture, according to 460 Fulton, establishes there was no notice to defendants and, consequently, no prima facie showing of negligence. Lastly, plaintiff cannot rely on res ipsa loquitur, 460 Fulton argued where the condition could have occurred in the absence of negligence, plaintiff caused or contributed to her injury or the condition was not within 460 Fulton's or any other codefendant's exclusive control. 460 Fulton, in other words, claims that res ipsa loquitor is inapplicable as plaintiff cannot show with certainty what caused her injuries and has not eliminated within reason all possible causes of the accident other than defendants' negligence.
 
Remaining codefendants/landlords, Fulton 2000, Next Generation and 464 Retail also contended, in support of their motion, that plaintiff’s claims must be dismissed because Modell's was obligated to maintain and repair the subject elevator. They note that plaintiffs complaint and bill of particulars allege that they failed to maintain and repair the subject elevator. However, these codefendants also assert that the terms and conditions of their lease with Modell's relieves them of the obligation to maintain and repair the structural portions of the premises. They highlight that the lease indisputably required Modell's to maintain and repair the elevator, and the admissible evidence presented does not support plaintiffs claim that they were responsible for maintaining the elevator. Additionally, these codefendants assert that plaintiffs claims must also be dismissed because they had no actual or constructive notice of any defective condition in the elevator, and no proof shows that any of them created the condition that allegedly caused the accident. More specifically, they submit that nothing in the record indicates there was a problem with the ceiling grid fixture for someone to have noticed and repaired it before the accident or that plaintiff has presented evidence that the condition existed for a sufficient period of time to constitute constructive notice.
 
Lastly, these codefendants argued that plaintiff cannot rely on res ipsa loquitor to infer their negligence because she has failed to show that the incident could not have occurred in the absence of negligence, that she did not cause or contribute to her injury, and that the condition was within these codefendants' exclusive control. These codefendants view the uncontroverted evidence as demonstrating that they did not exclusively control either the store premises or the elevator where the incident occurred. They note in this regard that both the general public and Modell's employees used the elevator.
 
Plaintiff argued that Modell's workers' compensation liability to plaintiff does not prevent holding each defendant separately liable; that moving defendant or defendants in each summary judgment motion failed to satisfy the initial summary judgment burden to warrant plaintiffs need to oppose, as no evidence was been offered identifying when the elevator was last inspected before the accident occurred; that plaintiff nonetheless raised triable factual issues precluding summary judgment through her own deposition testimony and the deposition testimony of McGlynn's president, Gerard Carlucci, who acknowledged that his company's contractual duties included inspecting the entire 01/05/2021 elevator and advising Modell's of any observed defective conditions; that all defendants had a nondelegable duty to maintain the elevator; that plaintiff was not obligated to prove notice as defendants have collectively failed to keep or submit records showing when the elevator was last inspected before the accident; and that applying the res ipsa loquitur doctrine makes defendants liable for negligence.
 
The Court agreed with plaintiff and held an issue of fact existed as to McGlynn. McGlynn's two-page letter contract itself is not titled "oil and grease agreement"; rather, it provides that there is "a monthly service of the elevator, including oiling and cleaning the machines, motor and controller, greasing or oiling bearings and guides; [and] making necessary minor adjustments." In addition, it states that "[s]hould our inspection reveal any need . . . of repairs or of materials, a report will be sent, specifying the net cost of same"   The statement of "a monthly service of the elevator" is broad; the scope of the work McGlynn was contracted to perform is at least arguably ambiguous; and according to Mr. Carlucci, McGlynn's president, the elevator inspection maintenance requirements included both notifying Modell's of any observed defective conditions so that Modell's could decide whether to fix and looking around to see if everything was in order. There is no language in the contract that excludes a specific service to the elevator, no prohibition to providing service not specifically listed and the service included making necessary minor unspecified adjustments. McGlynn did not provide records for a period longer than just six months before the incident to more completely demonstrate the contract's implementation and operation. The evidence McGlynn provided and the existing record do not foreclose plaintiff's claim, do not unequivocally show a duty was not owed to plaintiff and do not negate that McGlynn may have been negligent or contributorily negligent in fulfilling its duties related to the elevator.

The Court also held the other defendants’ motions  must also be denied as they failed to provide sufficient evidence to overcome the principle that real property owners have a duty to keep their property reasonably safe for people foreseeably on the premises.   Liability in a negligence action is generally predicated on a party's ownership, occupancy, control or special use of the subject property. Plaintiff alleges that the defendants owned, maintained, managed, inspected, serviced, operated and/or controlled 464-466 Fulton Street, including the automatic, self-operated elevator located therein. Here, the submitted evidence showed that each defendant either has an ownership interest in the property or acted in a capacity of a landlord agent regarding the property. Consequently, the ownership duties follow the codefendants and rental of the premises to Modell' s does not necessarily relieve 460 Fulton and the codefendants of their nondelegable duties to the rented premises.

 
12/29/20          Mulji v. Gordon
Supreme Court New York County
No question owner of dog involved in vicious attack had knowledge of dog’s vicious propensities given a similar prior attack by that dog.

This is a sad case involving a death of a dog by another dog. Defendant owned a dog named Mystery and plaintiff owned a dog named CJ. Plaintiff was walking her dog CJ on September 20, 2018 when Mystery allegedly attacked plaintiff and scratched plaintiff and bit CJ, sinking its teeth in and shaking it like a rag doll. Mystery was leashed but not muzzled. The dog CJ eventually died from the attack. The New York City Department of Health and Mystery’s owner entered into a settlement which it was admitted besides this attack, Mystery attacked another dog and owner, also resulting in the death of that dog in 2015.  Plaintiff brough an action against Mystery’s owner Gordon in strict liability.
 
In order to recover in strict liability for damages caused by a dog bite, the plaintiff must establish that the dog had vicious propensities and the owner knew it. Evidence establishing vicious propensities could be evidence of a prior attack, the dog’s tendency to growl or snap its teeth, the manner in which the dog was restrained, the fact the dog was a guard dog, or a proclivity to act in a way that puts others at risk of harm. The court  in this case found “no question” about Mystery’s vicious propensities and the owner’s knowledge of it due to the prior incident, and the stipulation which admitted knowledge of both incidents.

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

Happy New Years to all!
 
I’d be remiss if I didn’t lead this column off with mention of our hometown Buffalo Bills finally winning a playoff game!  The last time that they won a playoff game (1996), your writer was only eight years old.  More relevant to this column, the seminal case of Espinal v. Melville Snow Contractors, a case that gets referenced almost every month, was still eight years away from being decided.  The atmosphere these days in Western New York could accurately be described as half jubilation and half nervous.  Hopefully by the next time you read this column, my opening paragraph will be an ode to a Bills Super Bowl victory.
 
This month, due to an apparently drought in cases relevant to the column being published, I highlight only two cases.  While only two cases, they both stress some very important legal concepts related to slip-and-fall lawsuits that get litigated in New York State.  The first, Lorquet, focuses on two of the most often discussed concepts in this column: the storm-in-progress defense and the aforementioned Espinal doctrine.  Lorquet underscores something that I have mentioned many times in this column: your snow plow client must keep detailed records of their work or else you may be in trouble if a lawsuit arises.  The second case, Jubie, again focuses on the Espinal doctrine, this time demonstrating how easy it is for a plaintiff to create an issue of fact that warrants denial of a summary judgment motion.
 
Here’s to a happy and healthy 2021 and Go Bills!
 
 
November 13, 2020                Lorquet v. Timoney Tech. Inc.
Appellate Division, Fourth Department
Fourth Department affirms lower court’s denial of defendant’s summary judgment motion because movant failed to meet its burden as to either a storm-in-progress defense or an Espinal argument.
 
Plaintiff was injured with he allegedly slipped and fell over what was described as a “wind row” of snow located in a parking lot.  A “wind row” is an accumulation of snow that typically results from sustained blowing wind but also could form as a result of certain plowing techniques, essentially creating the equivalent of a sand dune.  The snow plow contractor defendant moved for summary judgment on two grounds: (i) a storm-in-progress argument and (ii) that it owed the plaintiff no duty under an Espinal line of reasoning.  The trial court denied the motion on both grounds.
 
The Fourth Department agreed with both decisions made by the trial court.  First, in regards to the storm-in-progress defense, the Court determined that the moving defendant simply failed to show a prima facia case that a storm-in-progress applied.  This was because the defendant’s representative testified that they never kept detailed records as to who cleaned what, nor when they did so.  The inability to prove that they did do work and clean the area and that doing so was futile due to the weather, precluded their ability to argue the same. 
 
Regarding the lack-of-duty argument, again the Court found that the plow contractor failed to proffer sufficient evidence to meet their initial burden.  As discussed at length in this column over time, one of the Espinal exceptions to the general rule that an entity owes no duties to individuals that are not parties to a contact is if that entity “launches a force of instrument” that ultimately causes the injury.  Here, the plow contractor again simply had no records as to what type of work was done at the property.  As such, they were unable to show that their work did not result in the formation of the at-issue “wind row.”  This precluded them from arguing to the contrary.
 
This case highlights exactly how important it is for snow plow entities to kept detailed daily logs as to the work that they perform.  Specifically, records need to be maintained that show who did what and when at each property that they service or else their ability to attempt to have matters dismissed on motion will be severely hindered.
 
 
December 31, 2020  Jubie v. Emerson Mgmt Enterprises, LLC, et. al.
Appellate Division, Third Department
Third Department affirms lower court’s denial of defendant’s summary judgment motion because of issues of fact as to whether or not the defendant “launched an instrument of harm” pursuant to the Espinal doctrine.
 
Plaintiff was injured when she allegedly slipped and fell on ice in a parking lot.  She brought suit against a variety of defendants, including the snow removal contractor.  That contractor moved to have the action dismissed on a theory that they owed the plaintiff no duty under the Espinal line of cases.
 
The Third Department agreed with the lower court’s denial of the snow plot defendant’s motion.  The Court found that there existed an issue of fact as to whether or not the plow defendant “launched a force or instrument of harm,” one of the three means by which Espinal can impose liability on a third-party contractor such as a snow plow company.  Here, while the plow defendant testified that they had completely removed all of the snow from the property, the plaintiff testified that there were “mountains” of snow, presumably as a result of the snow plowing, that then created runoff that froze into ice.  This drastically different version of events precluded the Court from awarding summary judgment to the plow defendant as it could very well have “launched an instrument of harm” by piling snow in a way in which created runoff ice.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Brian M. Webb
[email protected]

Rob E. Hewitt

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