Premises Pointers - Volume IV, No. 9

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:

Happy February, Black History Month and Valentine’s Day!  

In honor of Black History Month, the Bar Association of Erie County (BAEC) and the New York State Bar Association (NYSBA) are sponsoring several challenges and events that are open to all. Our firm’s very own Mirna Santiago chairs NYSBA’s Diversity & Inclusion Committee.  For Black History Month, NYSBA is challenging members to learn something new about the African American experience in America every day.  NYSBA has posted all 28 activities up front, so you can choose the activities that speak to you each day. The Challenge culminates with Mirna’s "Let's Talk About Race: How to be Actively Anti-Racist" CLE. Here is the link for those interested in participating.

Many of our employees are also participating in the BAEC’s challenge, which commenced on Martin Luther King Jr. Day.  Participants of the Challenge are provided with various media formats covering a wide range of structural, institutional, and cultural aspects of racial diversity and injustice faced by Black Americans, to be consumed over 21 consecutive days.  For those interested and for more information on the Challenge program, please visit https://eriebar.org/21daychallenge/.
 
Enjoy the weekend and stay warm!

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:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.

Products Liability Pointers:  Products Liability Pointers examines recent caselaw impacting products liability in New York, 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 products liability litigation, including defective design and manufacture, failure to warn, negligence, breach of warranty, medical device, and toxic and mass tort claims. Contact Chris Potenza at [email protected] to be added to the mailing list.

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

2/01/21            Trisvan v. Kentucky Fried Chicken Corporation and Yum Brands, Inc.
United States District Court, Eastern Division
Court dismissed Plaintiff’s claim after Plaintiff failed to meet his burden of proving subject matter jurisdiction due to his speculative request for relief.
 
Plaintiff brought an action to recover damages he claimed to have sustained after eating at a KFC restaurant and allegedly suffering food poisoning. Plaintiff sought relief pursuant to the Clayton Act, Sherman Act, Magnuson-Moss Warranty Act, and the Uniform Commercial Code. The Court dismissed Plaintiff’s first three claims with prejudice and Plaintiff’s U.C.C. claim without prejudice for lack of subject matter jurisdiction, granting Plaintiff leave to amend the U.C.C. claim within thirty days. The Court advised Plaintiff that he needed to include facts to support the amount in controversy and clarify how Defendant violated U.C.C. law if he was going to invoke the Court’s diversity jurisdiction over his state law claim. Plaintiff filed a timely Amended Complaint in which he alleged that the parties are diverse but failed to provide a basis for seeking $250,000 in punitive and compensatory damages for his alleged food poisoning. In reviewing Plaintiff’s amended complaint, the Court noted that the party asserting subject matter jurisdiction has the burden of proving that it exists by a preponderance of the evidence. The Court further noted that the amount in controversy must be non-speculative in order to satisfy the diversity jurisdiction statute (28 U.S.C. §1332 (a)). Finding that Plaintiff’s request for relief remained speculative and was therefore insufficient to meet the amount in controversy required for the Court to exercise diversity jurisdiction over the matter, the Court dismissed Plaintiff’s U.C.C. claims without prejudice for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. The Court added that a Plaintiff would ordinarily be allowed to amend the Complaint a second time, but that any amendment in this case would be futile since Plaintiff’s Amended Complaint merely duplicated the original pleading. The Court then referenced Plaintiff’s litigation history, cautioning Plaintiff that the Court will not tolerate frivolous litigation and that Plaintiff may be subject to a filing injunction should he continue to file similar actions in the Court.
 
 
1/27/21            Scurry, et al., v. New York City Housing Authority
Appellate Division, 2^nd Department
Defendant property owner’s motion for summary judgment denied in tragic negligent security case involving criminal conduct of a third-party (which are common claims against retailers and hotels) because Defendant failed to meet its prima facie burden to proffer any evidence that its alleged negligent conduct did not concurrently contribute to the subject incident.
 
This appeal was brought by the Defendant property owner in an action to recover damages for personal injuries and wrongful death. The decedent lived with her four sons, including the two plaintiffs, in a sixth-floor apartment at Cypress Hill Houses in Brooklyn, which was owned and maintained by Defendant. The street-level front door of the decedent’s apartment building was not equipped with a working door lock. Each plaintiff testified that the lock had been visibly broken for many months and that anyone could enter the building simply by pushing on the door. In the evening of October 24, 2007, the decedent’s estranged ex-fiancé, Boney, who did not live in the building, confronted the decedent in the hallway outside her apartment as she was leaving to go to work. A physical struggle ensued in which Boney doused the decedent with flammable liquid and, upon hearing his mother scream, Plaintiff Scurry ran into the hallway and pushed the Boney off his mother. Boney then set a fire which caused the death of the decedent and serious injuries to Plaintiff Scurry. Plaintiffs commenced an action against Defendant alleging negligence, negligent infliction of emotional distress as to Plaintiff Scurry, and wrongful death. Defendant moved for summary judgment dismissing the complaint, relying on the deposition testimony of its supervisor of caretakers for the premises and arguing that the attack on the decedent was an independent intervening cause of her death, which broke the causal nexus between any negligence of Defendant in failing to maintain an operable lock on the building’s door. The Supreme Court denied Defendant’s motion, finding that there were triable issues of fact as to whether Defendant fulfilled its duty to provide a safe environment and whether the often-broken door lock could be negligence proximately related to the incident.
 
On appeal, the Court referenced the leading case on the subject of landlord liability for negligent security, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451, which held that the criminal conduct of a third person, which might otherwise be an intervening cause breaking the proximate causality between the occurrence and the injury at the premises, may expose the landowner to liability if the criminal conduct itself was foreseeable. The First Department has distinguished between criminal acts that are intentionally “targeted” as against a particular victim and criminal acts that are “opportunistic” against random victims, deeming the causal nexus between the plaintiff’s injury and the landowner’s duty of care to be severed as a matter of law where the criminal act is targeted. The Second Department has not drawn such a sharp distinction between targeted and random attacks with regard to issues of foreseeability and proximate cause in negligent security actions against landowners. This Court recognizes that there may be more than one proximate cause of an occurrence or injury, noting that such a concept is so fundamental to the state’s decisional authority that the concept appears in several hundreds of reported cases. The Court also noted that equally fundamental to its decisional authority is that the party moving for summary judgment bears the initial burden of demonstrating its prima facie entitlement to judgment as a matter of law.
 
In this case, the Court determined that, for Defendant to be entitled to summary judgment, it needed to establish that Boney’s presence in the hallway at the decedent’s apartment was not a result of having gained access to the building through a negligently maintained and lockless front door, but was instead a result of having been given access by a tenant or other lawful means outside the scope of the minimal security measures that Defendant had a duty to provide. Defendant provided no evidence that its alleged negligently maintained front door played no concurrent role in enabling Boney’s criminal conduct on the date of the incident. The Court went on to state that the test in determining summary judgment motions involving negligent door security should not focus on whether the crime committed within the building was “targeted” or “random,” but whether or not, and to what extent, an alleged negligently maintained building entrance was a concurrent contributory factor in the happening of the criminal occurrence. Recognizing that the precise nature and manner of Boney’s crime could not necessarily have been anticipated, the Court noted that the alleged longstanding inoperability of a front door lock to a residential building made it foreseeable that some form of criminal conduct could occur to the detriment of one or more of the building’s residents at some point in time. The Court found that Defendant failed to meet its prima facie burden to proffer any evidence that its alleged negligent maintenance of the door lock did not concurrently contribute to the execution of Boney’s crime and thus did not meet its prima facie burden establishing its entitlement to judgment as a matter of law dismissing the complaint. The Court then concluded that whether an operable locked door at the subject building would have deterred Boney from his premeditated attack on decedent is a triable issue of fact to be decided by a jury.

1/19/21              Tango v. Costco Wholesale Corp.
United States District Court, Eastern Division
Court granted Defendant’s motion for summary judgment because Plaintiff failed to prove that Defendant was responsible for the alleged dangerous condition – cheese packages - or that it had notice of the condition.

Plaintiff sued to recover damages for personal injuries she alleges to have sustained when she was shopping in Defendant’s store, opened the door of a cooler, and three cheese packages fell on her face and arm. Defendant filed a motion for summary judgment. The court granted Defendant’s summary judgment motion on the grounds that the evidence in the record was insufficient to infer that Defendant was responsible for the allegedly dangerous condition. It was undisputed that the cheese is accessible to Defendant's members and is a heavily shopped item that sells out quickly, and Plaintiff testified that the boxes on top of the stack were not full and, thus, that cheese packages had been removed from the boxes. The Court concluded that it was therefore just as likely that another customer could have caused the cheese packages to fall as it was that the cheese packages fell because they were improperly stacked by Defendant. Turning to the issue of whether Defendant had actual notice of the allegedly defective condition, the Court noted that the record contained no evidence that demonstrated Defendant had notice of the condition. Although Plaintiff had testified that the stack of boxes was “lopsided” and had provided photographs depicting them as such, there was no evidence that Defendant’s employees had constructive notice of the condition of the boxes for a sufficient length of time prior to the accident to discover and remedy it. Plaintiff had advised Defendant’s manager of the incident about forty minutes after it occurred, after completing her shopping and paying for her merchandise. The manager then went to the cooler and saw the cheese stacked in normal saleable condition, properly stocked without any disarray, and with no boxes out of place. Since the record contained no evidence which, if viewed in the light most favorable to the plaintiff, would allow a rational trier of fact to reasonably infer causation, actual notice or constructive notice, Defendant was entitled to summary judgment.

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

Dear Readers,

January and February are always big months in the McCarthy household.  Fresh off of the Christmas and Hanukkah seasons, we dive into the second, marathon leg of family celebrations—two birthdays, a wedding anniversary, and Valentine’s Day. Like so many other things, this year’s celebrations looked a little different, but they have also been a continuous reminder of how fortunate my family has been.

In legal news, the Governor’s budget is a large part of the legislature’s focus at the moment, however, new legislation continues to be introduced and advanced by both houses of the state legislature.

This month, we update you on the introduction of the New York Civil Gideon Act (named for the famous Gideon v. Wainwright, where the Court held that defendants in criminal cases have a constitutional right to counsel), which extends the right to counsel to certain civil actions.  We also provide you with a summary of an interesting sexual tort case out of the First Department.  

New York Civil Gideon Act Introduced

The Act, which was introduced in the Senate on January 28^th, establishes a right to counsel in all civil matters involving “basic necessities of life,” including civil actions related to shelter, food, employment, health and family sustainability.  Funding for such representation is to come from the “Civil Gideon Assistance Fund” and seed money is provided through an amendment to the Judiciary Law.

This Bill is currently in the Local Government Committee for consideration by Committee members.  To become law, it will need to be moved out of Committee and placed on the Senate.  Should the Senate choose to pass the bills, it will then be delivered to the Assembly for a vote.  If the bill survives both houses of the legislature, it will be delivered to the Governor.  In order for the Bill to ultimately become law, the Governor will need to sign the legislation within 10 days of its arrival on his desk.  
 
January 12, 2021         New York State Appellate Division, First Department
A.M. v. Holy Resurrection Greek Orthodox Church Brookville, et al.
 
Plaintiff, a minor, filed suit against Holy Resurrection Greek Orthodox Church, the related Archdiocese, and a Father Kahegias, for injuries sustained in an alleged sexual assault.  The abuse occurred at a weekly, post-mass coffee hour hosted by the Defendant Church and was perpetrated by the minor son of a temporary, substitute priest, Father Kehagias.  Among other things, plaintiff argued that the Church and Arch Diocese were vicariously liable for Father Kehagias knowing introduction of a sexual predator into the church congregation.  Plaintiff also raised negligent supervision, negligent failure to train, negligent failure to warn, and premises liability claims against the Defendants.

After the trial court granted judgment in the defendants’ favor, the First Department affirmed the ruling, holding:

1. With regard to plaintiff’s vicarious liability claims, the Church could not be vicariously liable for the actions of Father Kehagias. While it was reasonably foreseeable the Kehagias would attend the weekly coffee reception, it was not foreseeable (nor in furtherance of Church business), that Father Kehagias would knowingly introduce (and leave unattended) a potential sexual predator into the church community without notifying anyone. 
2. Moreover, because Kehagias was not acting on the Church’s behalf in failing to safeguard the plaintiff from the tortfeasor, Father Kehagias’ knowledge about the risks his son posed to the congregation could not be imputed to the Church and Archdiocese.
3. Plaintiffs’ negligent supervision, negligent failure to train, negligent failure to warn, and premises liability claims against the Church and Archdiocese additionally fail because there was nothing in the record to indicate that the Church or Archdiocese defendants were independently aware of the tortfeasor’s propensity for sexual violence; and
4. in the absence of any allegations of extreme and outrageous conduct by the Church or Archdiocese, plaintiff’s NIED claims further failed.

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

Greetings Subscribers!
 
Despite the lackluster Super Bowl, the Bills provided their fans with an amazing season and I am now a Josh Allen believer! Hopefully, we will have the opportunity to attend home games next year and perhaps, even travel to Tampa Bay.
 
This month, I report on two discovery cases involving spoliation sanctions, including one with a deleted Facebook post the adjuster was able to capture before the comment was deleted. Under CPLR § 3126, sanctions may be sought against a party who intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary’s inspection and, in appropriate circumstances, when “a litigant negligently disposes of crucial items of evidence before the opposing party has had an opportunity to view them.” If you are considering such a motion or are trying to oppose one, feel free to reach out as I am more than happy to discuss the moving party’s burden of proof and strategies to help persuade the trial court to decide in your favor.
 
Until next time…
 
Marc


01/14/21          Bruno v Peak Resorts, Inc.
Appellate Division, Third Department
Plaintiff sanctioned with adverse inference charge after deleting a Facebook comment on a blog asking if the ski trail where he sustained injuries was open or closed on the day of his accident.
 
Plaintiff sustained injuries while skiing at Hunter Mountain and claimed defendants acted negligently by failing to post closed notices on certain ski trails. At plaintiff’s deposition, he denied making any social media postings about the accident. Defendants moved for dismissal of the complaint on the grounds of spoliation of evidence, claiming that after his accident, plaintiff posted a comment to a blog entry about the trail conditions at Hunter Mountain on the date of his injuries and later deleted the comment.
 
Plaintiff opposed the motion, attached copies of comments, photographs, and posts he made on his Facebook account discussing his accident, injuries, and activities since the accident. The trial court granted defendant’s motion, finding that plaintiff failed to provide “accurate representations” of his online posts, and imposed an adverse inference charge against plaintiff at trial, which plaintiff may purge by recovering the deleted comment.
 
As for plaintiff’s obligation to preserve the deleted comment on the Hunter Mountain blog, the record reveals that, at the time he made and deleted the comment – actions that he now admits to undertaking – he had retained counsel. Thus, although not yet a party to a lawsuit, he was on notice that the comment might be needed for future litigation. Plaintiff claimed that he did not intend to destroy or hide evidence, but the Third Department held that a culpable state of mind is suggested by plaintiff’s denials that he posted or deleted comments from the blog entry, despite defendants’ pointed questions during the examinations for trial, followed by his belated memory – which only arose after the threat of dismissal – of both the content of the comment and his reasons for its detection.
 
The Third Department affirmed the trial court’s finding that plaintiff acted negligently in deleting the blog comment, and defendants were required to demonstrate its relevance. Since plaintiff acknowledged that the deleted comment concerned whether the ski trail where he sustained his injuries was open or closed on the day of his accident, the court held its matter went directly to defendants’ defenses. Accordingly, the trial court did not err in concluding that sanctions were warranted.
 
With respect to the imposition of the adverse inference charge, the Third Department was unpersuaded by plaintiff’s contention that it will produce the same effect as a grant of summary judgment in defendants’ favor. The trial court directed that the charge “will be tailored at the time of pretrial conference as the court deems it appropriate” and expressly allowing plaintiff the opportunity to avoid the adverse inference charge by producing the deleted comment. Considering plaintiff’s lack of candor throughout the discovery process, the court found no abuse of discretion by the trial court’s imposition of an adverse inference charge.
 

02/03/21          May v American Multi-Cinema, Inc.
Appellate Division, Second Department
The Court’s finding of an issue of fact whether spoliation of relevant occurred requires a determination by the trier of fact, and the appropriate sanction would be an inference charge, as the destruction of any surveillance footage of the accident did not deprive plaintiff of the opportunity to prove her case.
 
Plaintiff testified at her deposition that she slipped on liquid that was on the floor in the vicinity of the concession stand. It was undisputed that surveillance footage from the day of the accident was destroyed. As relevant here, the trial court denied plaintiff’s cross-motion to strike defendant’s answer as a sanction for spoliation of evidence, based on the destruction of video surveillance footage allegedly depicting the area of plaintiff’s accident.
 
The Second Department reversed and found an issue of fact as to plaintiff’s cross-motion. Under “the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby preventing the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.” A less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case.
 
In this case, the court held the parties’ deposition testimony as well as the affidavits of plaintiff’s son and defendant’s employee raised an issue of fact as to whether the destroyed footage actually depicted the area of plaintiff’s accident. Accordingly, plaintiff’s cross-motion for spoliation sanctions should have been granted to the extent of directing that an adverse inference charge be given against defendant at trial if the trier of fact determines that there was spoliation of evidence.
 

02/05/21          Pitt v Hague Corp.
Appellate Division, Fourth Department
Plaintiff properly granted leave to serve an amended complaint after establishing that reasonable cause existed for the delay in asserting a claim that the slip and fall aggravated her preexisting condition.
 
Plaintiff allegedly was injured when she slipped in water that leaked from a vending machine located in a building owned by defendant. She was thereafter diagnosed with small fiber peripheral neuropathy pain causally related to her fall and injury. The trial court granted plaintiff’s motion for leave to serve an amended complaint to assert a claim of an aggravation of a preexisting condition.
 
The Second Department unanimously affirmed. Plaintiff was not experiencing symptoms of the preexisting condition prior to her fall and injury, she was not aware of that condition prior to receiving her diagnosis, and plaintiff sought leave to amend the complaint promptly after her diagnosis, which was also prior to the deadline for the completion of discovery in the trial court’s scheduling order.
 
Defendants’ contention that they were prejudiced by plaintiff’s delay was rejected because defendants failed to meet their burden of establishing prejudice or surprise resulting from the delay. There is no indication that defendants’ preparation of their case was hindered by the amendment or that they were prevented from taking any measure in support of their position, and it is well-settled that an opponent’s need for additional discovery or additional time to prepare a defense does not constitute prejudice sufficient to justify denial of a motion to amend the pleadings.

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

Welcome to another edition of my column in Premises Pointers.  In Melville, we have had a number of snowstorms since our last edition.   We are still covered in snow but nothing compared to what my colleagues in Buffalo get. My family—especially my two boys—had fun with snowballs, sledding and snowmen making.
 
I just also want to remind our readers that besides premises cases, we handle a full line of different cases down here in Melville, as well as our Buffalo office, for whatever your needs are, including Labor Law, products liability cases, auto, professional liability, and many, many other types of law. Please reach out if you need anything from us.
 
As for the cases this edition, they involve faulty elevator door sensors, falling on a wet elevator floor, and a shopping cart thrown over a second floor fence by twelve-year-olds in a mall which seriously injured a shopper on the first floor.  As such, they present an interesting hodgepodge of fact patterns and legal issues involving actual and constructive notice, proximate cause, elevator maintenance records, and apportionment of liability between owners, security companies and twelve-year-old perpetrators.
 
Until next time,
 
Rob
 

February 5, 2021       Kwan v. Confucius Plaza Tenants Assoc.
Supreme Court, New York County
Plaintiff could not establish actual or constructive notice of wet floor and owners do not have to provide a constant remedy for water tracked in by individuals immediately prior to the accident.

Plaintiff resided at the defendant Plaza with her daughter. Plaintiff's accident occurred on a rainy day in October 2014. Plaintiff and her daughter, Kate Lee, exited a car in front of the premises at approximately 10:15 a.m.  They walked through the first set of doors, a vestibule area, and a second set of doors that led to the lobby. They then walked towards the elevators. Plaintiff and Lee were each holding an umbrella. Lee was also wheeling a suitcase.
 
As confirmed by surveillance footage, Lee entered the elevator first and plaintiff followed. Upon entering the elevator, plaintiff slipped and fell. Two other individuals were in the elevator when plaintiff fell. The video footage at the 4:20 mark shows plaintiff falling in the exact spot where Lee had wheeled her suitcase into the elevator moments before the accident.
 
Plaintiff testified at a deposition that she did not recall whether there were any mats or rugs on the lobby floor after the second set of doors. Plaintiff further testified that she noticed that the lobby floor was wet. Plaintiff and Lee each testified that they saw no warning signs or mats in the premises when it was raining. Lee additionally testified that she did not see any mat in the vestibule, but that she did see a small piece of carpet after the second set of doors. Lee testified that after walking through the second set of doors into the lobby area, she saw a small mat or rug on the floor.
 
Leroy Fraser, an employee of Park Avenue Security for 28 years, was the site supervisor on the day of the incident. Fraser testified that there is always carpet out when it is raining. To his knowledge, the carpet was out the day of the incident. He did not recall whether there were mats inside the elevator. Defendants also provided photographs confirming Mr. Fraser's testimony regarding the extensive carpeting in the lobby Drew Moschela, Tudor's site manager on the day of the incident, testified that he was not aware of any complaints regarding the accumulation of water on the lobby floor. Shalamar Clarke, the insurance manager for Tudor Realty Services, testified that before the accident no one had complained about water accumulating in the lobby area of the elevator.
 
To establish liability in a slip-and-fall case, a "plaintiff must prove that defendant either created or had notice of the condition."  The Court held Defendants established as a matter of law that they did not create the wet-floor condition. Defendants provide video evidence showing that plaintiff fell in the exact spot where, mere moments before the accident, Kate Lee had been walking and rolling her suitcase. Defendants contended that the water on the floor had been tracked from Lee's feet and suitcase moments before the accident. Plaintiff offered no countervailing evidence. And defendants do not have an "obligation to provide a constant remedy" if water was "tracked into the building by individuals immediately preceding plaintiff."
 
Defendants also lacked actual notice of the floor being wet. The evidence demonstrates that defendants were not notified of the alleged wet floors or otherwise had actual notice. Nor did defendants have constructive notice. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Plaintiff did not provide any evidence to establish how long the floor was wet before the accident. The record does not show that anyone else observed the floor being wet prior to the accident. And Clarke testified that before the accident, no complaints were made about water accumulating in the lobby area or elevator. The absence of any complaints regarding the dangerous condition prior to the accident reinforced that defendants did not have constructive notice.  Defendants motion for summary judgment was therefore granted.
 

February 4, 2021       Borgtugno v. New York State Urban Dev. Corp.
Appellate Division First Department
Injury caused directly by malfunctioning elevator door even though plaintiff had to walk through elevator to the other side because of a fence.

Plaintiff was injured when he was hit in the head by the descending door of a freight elevator in a building owned by defendant UDC. At the time, plaintiff was walking through the elevator, entering through the open doors on one side and exiting through the open doors on the other side. There is evidence that plaintiff had to use the elevator as a passageway because of the presence of a fence erected by UDC's managing agent.
 
UDC established prima facie that it neither created nor had actual or constructive notice of a malfunctioning of the elevator doors, and defendants Schindler Elevator Corporation and Midland Elevator Co. Inc. failed to present evidence sufficient to raise an issue of fact as to whether either UDC or its managing agent had notice of such a problem.
 
Schindler and Midland argue that the negligent erection of the fence by UDC's managing agent was a proximate cause of plaintiff's injuries. However, plaintiff's injury was directly caused by the malfunctioning of the elevator door, and not the existence of the fence. Therefore, UDC’s motion for summary judgment was granted.
 

January 26, 2021       Bennici v. 41 E. 11^th St. LLC
Supreme Court, New York County
Unexplained elevator shut down several days before the accident precluded summary judgment as it led to an issue of fact as to whether the door sensor was properly working.

Plaintiff specifically alleged elevator door closed uncontrollably on plaintiff causing serious and sever injuries to plaintiff’s hand; said elevator lacked proper door sensors to prevent door from closing on plaintiff. Defendant P.S. Marcato Elevator Co. Inc. claimed that there was no evidence presented showing an issue with the condition of said elevator. They further claim a lack of constructive or actual notice of maintenance issues with the subject elevator. In addition to presenting limited maintenance records they rely on the deposition of Brendan Kelleher, “the super of the building” who had no information on the maintenance of the elevator. The deposition transcript of Andrew Trapani stated, “[i]t’s [the sensor] an electronic device and, you know, unless it gets physically damaged, which actually does happen as people bring freight in and out of an elevator, or they can hit into it and knock it off, other than that it doesn’t have a lifetime other than, you know, being damaged.”
 
On opposition to the summary judgment motion by defendants, plaintiff argued that defendants failed to produce any evidence that the subject elevator was properly maintained. They failed to produce any evidence as to what maintenance if any was done to the subject elevator or when. Specifically, defendant failed not produced any records reflecting any specific maintenance or testing to the detector door. PS Marcato failed to document any preventative maintenance to the subject detector edge in the 12 months prior to the accident based on the records that were submitted. Defendant P.S. Marcato did not provide any testimony or written affidavits from any employee who performed any specific alleged maintenance or testing to the detector door.
 
The Court agreed and noted that the same elevator was shut down eight days prior to the date of the incident for an unknown reason. It found it telling that defendants own elevator mechanic Ivette Pastore, could not articulate the reason the elevator was shut down at that time and no records were produced to clarify what had occurred at that time. Therefore, the Court denied the motion as it found questions of fact existed as to whether the sensor in the elevator was functioning properly and whether there was proper maintenance of the subject elevator.

 
January 12, 2021       Hedges v. Planned Security Service Inc.
Supreme Court, First Department
Owner’s liability found by jury to be greater than the security company defendant or twelve-year-old perpetrators held reasonable where owner had knowledge that items were frequently dropped over railings or down escalators.

Plaintiff Marion Hedges was seriously injured and left on the brink of death when two 12-year-old boys threw a shopping cart over the fourth-floor railing of a shopping mall, striking her as she stood at a parking kiosk on the first floor. Owner Defendants are the mall owners, and PSS is the mall security firm.
 
Owner Defendants’ motion for a directed verdict following plaintiff’s case presentation at trial was denied. The Appellate Court found the jury could reasonably have concluded based on the evidence presented at trial that the criminal act of youths throwing objects from the upper floors of the mall was foreseeable and constituted a recurring dangerous condition, thus triggering a duty to take some responsive measures.
 
The jury's determination that Owner Defendants were at comparatively greater fault than the defendant PSS, security, was also found to be based on a fair interpretation of the evidence. Evidence was presented that PSS's role was limited to providing security personnel and that it had no authority to make many of the changes suggested by plaintiffs' security expert. However, the jury heard evidence that the Owner Defendants had notice of a recurring hazardous condition at the premises, namely, that youngsters frequented the location and threw various items off the elevated structure. According to witnesses and security log entries, young people threw such items as candy, food, rocks, glass bottles and garbage. Additionally, there was documentary evidence that 20 days before plaintiff's accident, several youths had thrown a shopping cart down the escalator. Yet, according to testimony by one of defendant's managers, the Owner Defendants did not put into place any remedial measures, such as raising the height of the rails, increasing the number of security guards or putting up warning signs, despite having notice of the recurring dangerous condition. Thus, the Appellate Court declined to disturb the jury's findings apportioning liability 65% against Owner Defendants and 25% against defendant PSS, with 10% on the perpetrators.
 
The Appellate Division disagreed with Owner Defendants' argument, an apportionment of fault of 35% to the perpetrators was reasonable finding it was not supported by the record or the caselaw. Owner Defendants relied on Nash v Port Auth. of N.Y. & N.J. (51 AD3d 337, 353-358 [1st Dept 2008], revd on other grounds 17 NY3d 428 [2011], cert denied 568 US 817 [2012]) in support of this apportionment. However, Nash involved the 1993 premeditated terrorist bombing attack on the World Trade Center. In the present case,  the perpetrators were two 12-year-old boys; while their actions were reckless, there was no indication that they executed a premeditated plan aimed at seriously injuring the shoppers below. In any event, their actions are not comparable to an international terrorist conspiracy intended to harm American interests.

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

Greetings Readers:
 
While the focus of last week’s introduction was on being overly optimistic about my hometown team, unfortunately, us Buffalonians will have to wait at least one more year for that first Super Bowl victory.  On the bright side, the region has officially transitioned into one of our trademark winter seasons.  While many people complain about the snowfall, I find this specific time of year to be one of my favorites.  The snow falls heavy, yet in a calming way and it hasn’t been going on long enough yet for everyone to be sick of it.  The changing of the seasons provides not just a nice variety, but also helps give us something to look forward to in the form of the nice weather that is still months away.
 
This month, I highlight three recent cases from three of the four appellate departments.  First, Tropper touches on multiple topics that come up regularly in this column and is a useful case to read for a review of some of the baseline rules regarding issues such as trivial defects, open and obvious hazards and notice generally.  Next, Edmund-Hunter serves as an obvious reminder that if you are going to make a storm-in-progress argument, there should probably be evidence that a storm was indeed in progress at the relevant times.  Lastly, Amos is discussed in order to highlight just how difficult it is to succeed with motion practice aimed at arguing that something is too trivial of a defect to be considered a hazard.
 
Here’s to a good and healthy February for all!
 
 
January 26, 2021                     Tropper v. Henry Street Settlement
Appellate Division, First Department
First Department reverses entirety of trial court’s order dismissing the complaint and rules that plaintiff is in fact entitled to summary judgment regarding negligence of defendant landowner in failing to address an uneven sidewalk.
 
Plaintiff was injured when he allegedly tripped and fell on a sidewalk slab that was approximately three inches raised from being flush with the adjacent sidewalk slab.  The trial court denied plaintiff’s motion for partial summary judgment on negligence and, after reviewing the record, actually directed the entry of a judgment dismissing the complaint.  The opinion does not state the exact grounds why the complaint was dismissed by the trial court but it appears that concepts concerning the triviality of the defect, as well as purported lack of notice, were key factors in the trial court’s decision.
 
The First Department’s opinion was a sharp rebuke of essentially the entire decision of the trial court.  The Court went through and clearly demonstrated the rationale for why plaintiff was in fact entitled to judgment on the issue of negligence and why the defendant landowner’s arguments all failed.  To wit, the Court stated:

• The argument that the defect was “trivial” and thus nonactionable failed because the defendant produced zero evidence that the sidewalk was gap was anything less than the three inches claimed by plaintiff;

• The argument that the defect was open and obvious failed to absolve landowner of responsibility because if something is open and obvious, that only relieves them of the duty to warn of the defect, not their duty to correct it;

• It was clear that the defendant had notice of the defect because there was evidence that the City of New York issued citations for the sidewalk defect (actual notice) and the defendant’s staff testified to inspecting the area on a daily basis (constructive notice); and

• Any argument about whether or not the plaintiff was a proximate cause of the accident due to his running on sidewalk is relevant as to negligence because a plaintiff is not required to demonstrate the absence of their own fault in order to obtain partial summary judgment against an at-fault defendant.  The issue of comparative fault only goes to the question of apportioning damages.

All in all, the case is a good review of lots of the important concepts in slip-and-fall law and also is a prime example of an Appellate Court pretty directly opining that the trial court made multiple errors in their initial ruling. 

 
January 27, 2021                     Edmund-Hunter v. Toussie
Appellate Division, Second Department
Second department reverses lower court’s grant of summary judgment to defendant landowner on the reasoning that the “storm-in-progress” defenses actually requires a storm to be in progress at the time of the incident.
 
Plaintiff was injured when she allegedly slipped and fell on some ice located on a walkway on defendant’s property.  The defendant was granted summary judgment by the trial court based upon the storm-in-progress doctrine.
 
The Second Department disagreed and reversed the trial court’s award of summary judgment.  The Court provided a useful recap of the concept of storm-in-progress defense, stating that a property owner cannot be held responsible for accidents resulting from an accumulation of snow and ice until an adequate amount of time has passed since the weather event that caused the dangers. 
 
Here, the only evidence that there was a “storm” at the relevant time came from the defendant’s own meteorologist and revealed that less than one-tenth of an inch of snow fell on the subject date and that it had stopped snowing at least two hours before the plaintiff’s fall.  The Court ruled that such a weather event falls far short of what is meant by a “storm-in-progress,” both in terms of quantity of snow but especially the fact that the event was well done by the time of fall.  As such, the trial court was incorrect in granting summary judgment ot the defendant and the complaint was reinstated.

 
December 23, 2020                 Amos v. School 16 Associates, L.P.
Appellate Division, Fourth Department
Fourth Department affirms lower court’s denial of defendant’s summary judgment motion because defendant failed to meet burden regarding a defect being “trivial.”
 
Plaintiff was injured when she allegedly tripped and fell on a crack in a sidewalk located on the defendant’s property.  The defendant moved for summary judgment on the grounds the defect was too trivial to constitute a danger, but the trial court denied said motion and defendant appealed.
 
The Fourth Department ultimately agreed with the trial court and affirmed their denial of defendant’s motion.  To wit, the Court provided background into the concept of the trivial defect defense and the idea that there is no liability when a defect is “so slight that no careful or prudent person would reasonably anticipate any danger.”  Here, there was evidence that the crack that purportedly caused plaintiff’s fall was between one half inch and one inch is size.  Despite that tiny of a defect, the Court opined that the matter was best suited for jury and that it would be improper to grant defendant summary judgment even with such a minor defect at issue.

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