Premises Pointers - Volume VII, No. 4

Volume VII, No. 4
September 28, 2023
A Monthly Electronic Newsletter
 

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

 

 
This past month produced several Federal Court decisions in favor of retailers like Target, Wal-Mart, Lowe’s and Costco, including one our office handled (Nancy Smith v. Target). In these cases, Plaintiffs were confronted with a big metal shelf, hazardous blueberries, merchandise display racks and falling objects. The common theme in these cases was the lack of proof the Plaintiff produced on the issues of actual and constructive notice when opposing motions for summary judgment. Unlike in State Court, a Federal Court motion for summary judgment requires Plaintiffs to affirmatively demonstrate facts that could reasonably allow a jury to rule in their favor. This places the burden on Plaintiffs to prove their case or face dismissal. 

 
9/26/23            Erica Maitland v. Target
United States District Court, Eastern District of New York
Plaintiff injured when “big metal shelf” fell on her while shopping in toy section - Court granted Target’s motion for summary judgment.
 
After Plaintiff entered the toy department using a wheelchair, she remained stationary when a “big metal shelf” from an unknown location fell onto her lap, hitting her leg and causing her pain. Plaintiff did not recall the length, shape, or width of the shelf, nor did she recall seeing the shelf before the incident. Plaintiff also did not recall any details about the positioning of the shelf or the conditions of the surrounding area. In opposition to Target’s motion, Plaintiff did not point to any other evidence indicating that Defendant or its employees created the condition that caused the shelf to fall on Plaintiff or had notice of it. For example, Plaintiff had no evidence that Defendant received complaints about defective shelves prior to her accident. In fact, a senior executive at the store, testified that she was not aware of any accidents or complaints involving toy department shelves at that store during the year prior to Plaintiff’s incident and also had not heard any reports of toy department shelves coming off their fixtures during the year prior to the incident. Plaintiff attempted to argue res ipsa loquitur which the court ruled was not applicable. Target’s motion was granted.


9/14/23            Maria Morgan v. Wal-Mart Stores
United States District Court, Southern District of New York
Plaintiff struck by falling merchandise – Court granted Walmart’s motion for summary judgment.
 
While bend over looking at a bottom shelf, Plaintiff felt something hit her in the head and neck that fell from somewhere. The object was determined to be a comforter. As a result, she claims to have sustained a traumatic brain injury. Plaintiff attempted to establish actual notice based on her observation of an employee stocking a nearby shelf – this argument failed. Plaintiff argued that the way the shelf was stocked was unsafe and contrary to Wal-Mart’s policies – this argument also failed. Plaintiff tried to argue the Noseworthy doctrine to account for her flimsy proof of negligence – this was also rejected since Plaintiff’s memory loss only occurred after the incident. Under Noseworthy, “an amnesiac plaintiff may be held to relaxed standards of evidentiary proof on summary judgment.” In granting Wal-Mart’s motion, the court ruled that Plaintiff failed to come forward with circumstantial evidence through which a reasonable jury could infer that Defendant created a dangerous condition that led to Plaintiff’s injury.
 
 
9/5/23              Kortright-Conklin v. Lowe's Home Centers, LLC
United States District Court, Northern District of New York
Plaintiff fell while climbing a shelf to get merchandise down – Court granted Lowe’s motion for summary judgment.
 
Plaintiff’s incident occurred when she was attempting to remove a space heater from one of the higher shelves on the racking unit. She claims there was “some kind of sawdust or something very slippery” on the shelf that caused her to lose her grip resulting in the fall. However, at her deposition when asked if she actually visualized dust, she responded no and was unable to provide any details about it. Employees who inspected the area after the incident reported observing nothing that would have caused the fall. They observed no sawdust and nothing slippery. There was no proof the display was dangerous, including no prior complaints. Ultimately, Plaintiff failed to present sufficient evidence upon which it could reasonably be concluded that Defendant had actual or constructive notice of the dangerous condition on the shelves that plaintiff claims caused the fall.
 

9/13/23            Nancy Smith v. Target Corporation
United States District Court, Northern District of New York
Plaintiff bumped into a merchandise display rack and fell– Court granted Target’s motion for summary judgment because the display rack was open and obvious and not inherently dangerous.
 
In this case, the Plaintiff claimed the merchandise display rack containing infant clothing was improperly placed in the infant section of the store and was also dangerous because the wheels jetted out into the aisle. Target submitted the surveillance video of the incident which showed the area in and around the rack was free and clear of any obstacles or hazards. Plaintiff testified at her deposition that she understood that when shopping she needed to navigate around merchandise racks and need to watch where shew as walking. Plaintiff fails to present sufficient evidence upon which it could reasonably be concluded that Defendant had constructive notice of the dangerous condition on the shelves in the Kingston store.
 
 
9/1/23              Fouzia Jada v. Costco Wholesale Corporation
United States District Court, Eastern District of New York
Plaintiff slipped and fell on blueberries scattered on the floor - Court granted Costco’s motion for summary judgment.

The subject blueberries were on the floor near the registers as Plaintiff was in the process of paying for her goods at the cash register when an employee informed her that there was a sale on items which allowed her to obtain an item for free. Upon retrieving the sale item, as Plaintiff re-approached the cash register, she slipped and fell on blueberries scattered on the floor near the registers. Costco argued there was no evidence its employees created the condition or had notice of the blueberries before the fall. While Plaintiff argued they were crushed and dirty, Costco argued that is insufficient to prove notice. Plaintiff had no proof regarding where the blueberries came from or how long they were on the floor, which the court said was fatal to her claim. The summary judgment motion was granted.

 

 
Dear Readers,

As many of you may know, I have covered a variety of different topics in Premises Pointers since its inception six years ago. I have covered dram shop cases, limited services contracts, storm in progress, slip and falls, and most recently, school district cases.  The topics I have covered have largely reflected the types of cases in my own practice in the general litigation department—premises liability cases for our retail and hospitality clients and negligent supervision cases for our school district clients. Variety, however, is the spice of life and I have always looked for new challenges and things to learn.  When the opportunity arose a few years ago to begin learning and handling labor and employment matters, I jumped at the chance to expand my repertoire. Going forward, my column will reflect this change and I will be providing labor and employment news focusing on those cases and legislative updates that are especially important for schools and the retail and hospitality industry to know.

I continue to handle a variety of cases, including cases for school districts, retailers, restaurants, and other property owners, however, if you have questions or you wish to discuss a challenge, problem, or claim in the employment context, I am happy to speak with you any time.  We also recognize that many of our premises clients are also employers and that our insurance carrier clients provide coverage for general liability claims as well as EPLI claims, making this column a nice fit with Premises Pointers.

This month’s column focuses on a recent legislative development in the state of New York.

The New York Pay Transparency Act is Now in Effect

Earlier this month, the New York Pay Transparency Act went into effect.

What does this mean for New York businesses?

If you own or run a business with four or more employees in the State of New York, you must include a compensation range for all job openings, promotions, and transfers.   The range, whether pertaining to salaried or hourly employees, must include the minimum and maximum compensation that may, in good faith, be expected at the time of posting. If the position is commission-based, that information must also be set forth in the posting.

The law also expressly prohibits retaliation against employees who discuss their compensation with coworkers. 

According to proposed regulations (which remain open for public comment until Nov. 13, 2023):

• The Range of Compensation means the base rate of pay, regardless of the frequency of payment;
• The Range must reflect the expected compensation for a single opportunity and a single geographic location or region—if the opportunity encompasses multiple geographic locations, or multiple levels of seniority or supervisory authority, then multiple ranges must be provided for each opportunity.
• The Range cannot be open-ended—it must include a minimum and maximum dollar amount the employer, in good faith, is willing to pay for each opportunity. An opportunity may not be advertised as something like—“$20 per hour and up.”
• Similarly, a range that is too broad will be viewed as evidence of “bad faith” unless the employer provides a reasonable explanation for a broad range.  Ultimately, the applicant must be able to glean the legitimate range of compensation the employer is willing to pay for the opportunity advertised.
• The Range of Compensation need not include other forms of compensation or benefits such as health, life, or other employer-provided insurance, paid or unpaid time off, severance pay, overtime pay, or other forms of compensation like commissions (although you must state whether an opportunity is commission-based) tips, bonuses, stocks, or the value of employer provided meals or lodging.
• If compensation includes tips, you may state something like—“the base rate of pay is $20 per hour with an estimated additional $10 per hour in tips.”  Employers cannot include the anticipated tips in the hourly wage, however, because it fails to disclose the base rate of pay—for example, you may not say the range is $30 per hour or $30 per hour including tips.
• The law does not require that employers post every available job, promotion, or transfer opportunity nor does it require that employers use any particular advertising medium.

Any person “claiming to be aggrieved by a violation” of the law may file a Complaint. 

Public comment on the proposed regulations will be accepted for a 60-day period until November 13, 2023. To submit a comment, you may send an email to [email protected].

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

Hello Subscribers,
 
Courts are returning to normal and this edition features several interesting cases, including another social media discovery case citing the seminal Court of Appeals case Forman v Henkin. Recall that in a personal injury case, it is appropriate for courts to consider the nature of the underlying incident and injuries claimed to craft a rule for discovering information specific to each. Courts first consider the nature of the event giving rise to the litigation and the alleged injuries, as well as any other information specific to the case, and to assess whether relevant material is likely to be found. Courts then must balance the potential utility of the information sought against any specific privacy or other concerns raised by plaintiff to issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed. If you have experience with discovery motions and/or social media demands, please reach out and share.
 
Until next issue, enjoy the warm weather while it lasts …
 
Marc
 

08/30/23       Giovinazzo-Varela v Varela
Appellate Division, Second Department
Plaintiff’s motion to preclude defendant’s expert denied because the expert notice was served prior to the setting of the trial date and defendant’s expert disclosure was therefore not untimely.
 
The trial court granted plaintiff’s motion to preclude defendant from offering expert testimony. The Second Department unanimously reversed the decision because defendant served his expert notice prior to a trial date being set, and thus the Court held that it was not untimely. The Court further noted that the notice was not deficient since it identified the expert witness, indicated that he was a vocational expert, and included the expert’s qualifications.
 
Although the notice did not include the expert’s opinion and grounds for that opinion, that information was contained in the draft report that was received by plaintiff prior to setting the trial date. Therefore, the Court held that defendant complied with the requirements of 22 NYCRR 202.16(g) by disclosing his expert shortly after the expert was retained and serving the expert report more than 60 days before trial.
 

09/13/23  Hogdahl v LCOR 55 Bank St., LLC
Appellate Division, Second Department
Plaintiff compelled to answer questions about his drug and alcohol use based on claims for future economic loss, including loss of future wages.
 
The trial court granted defendants’ motion to compel plaintiff to answer deposition questions about his drug and alcohol use. The Second Department affirmed the decision. Plaintiff asserted claims for future economic loss, including loss of future wages, pension, annuity, and health insurance coverage, based on certain work-life and life expectancy ages. The Court held that those claims placed at issue plaintiff’s health and ability to work, and plaintiff’s work-life expectancy. In determining an injured worker’s life expectancy through an award of damages for future lost wages, juries are permitted to use life expectancy determinations based on statistical life expectancy tables, together with their own experience and the evidence presented at trial in determining what plaintiff’s life and/or work-life expectancy is, based on plaintiff’s health, life habits, employment, and activities.
 
Accordingly, the Court held that based on the circumstances of this case, plaintiff was compelled to answer deposition questions as to his drug and alcohol use. Since plaintiff testified at his deposition as to his use of alcohol and illegal substances, and a toxicology report prepared in connection with plaintiff’s lumbar surgery demonstrated that he tested positive for cocaine, cannaboids, and benzodiazepines, the Court held that the discovery sought by defendants may be useful in preparation for trial and may lead to relevant evidence bearing on plaintiff’s claims for future lost wages.
 
 
09/20/23          Sereda v A.J. Richard & Sons, Inc.
Appellate Division, Second Department
Defendants were not entitled to certain discovery because they failed to show that the discovery sought was reasonably likely to yield relevant evidence as to the severity of plaintiff’s alleged injuries.
 
The trial court denied defendants’ motion to compel plaintiff to provide certain discovery, including authorizations to obtain records from plaintiff’s Facebook and other social media accounts beginning two years before the date of the incident, authorizations to obtain records from the E-Z Pass account of plaintiff’s wife from the date of the incident, a copy of plaintiff’s passport, and copies of all photographs taken by plaintiff with his cell phone since the date of the incident. The Second Department affirmed the decision because defendants failed to demonstrate that the discovery sought was reasonably likely to yield relevant evidence regarding the severity of the alleged injuries sustained by plaintiff.

Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]

Last weekend was the Autumnal Equinox, which marks the beginning of Autumn.  It is one of two dates throughout the year where the Sun illuminates both the northern and southern hemispheres equally due to the position of the earth.  For some, it marks the end of the summer.  For others, it signifies the beginning of pumpkin season.  For me it marks the beginning of not knowing how to dress due to extremely divergent morning and afternoon temperatures. Happy Fall!   
  
I hope you enjoy the ride. 
 
Scott
 

9/7/2023                  Griffin v. New York City Transit Authority, et ano.  
Supreme Court, New York County
Defendants’ records raised questions of fact regarding notice.
 
Plaintiff, Sonya Griffin (“Plaintiff”), alleged a trip and fall on an escalator (the “Escalator”) due a defect in the Escalator (the “Incident”).  Specifically, she alleged that the Escalator was “fast moving” and “jerking”.  The Incident occurred at the J Subway at Fulton Street, New York, New York.  Defendants moved for: (1) dismissal, alleging that Plaintiff failed to state a cause of action; and (2) summary judgment since there were no triable issues of fact. 
 
Plaintiff’s Complaint alleged that the Incident (and resulting injuries) were caused by Defendants’ failure to properly maintain and operate the Escalator.  Giving Plaintiff the benefit of ever possible inference (as required by CPLR 3211(a)(7)), Defendants’ motion to dismiss was denied.  Plaintiff’s allegations fit within a cognizable legal theory that allow for enforceable right of discovery. 
 
With respect to Defendants’ motion for summary judgment, Defendants submit Plaintiff’s statutory hearing and deposition transcripts of multiple employees of Defendants, and records/documents from Defendants’ production.  Defendants asserted in its Statement of Material Facts that “there [was] no evidence of actual or constructive notice of the condition which Plaintiff alleges caused her injuries, nor [was] there any evidence that [Defendants] allowed the allegedly hazardous condition to remain for an unforeseeable length of time or that the [Defendants] created the condition.  The Court held that Defendants did not meet the “high burden” of establishing entitlement to judgment.     
 
Defendants’ position that it did not have notice of the condition was undermined by Defendants’ own submitted records.  In opposition, Plaintiff relied upon Defendants’ outage reports regarding the Escalator, and relied upon the Expert Affidavit of Patrick Carrajat (“Carrajat”).  Carrajat reviewed the outage reports and the deposition testimony and concluded that a prior incident occurred in which someone fell down the Escalator.  While no defect was found, several weeks later, another problem arose, and the Escalator was not operating properly.  Two days later, another pedestrian fell due to a similar problem with the Escalator.  The Escalator was taken out of service.  Carrajat further opined that in the two years prior to the Incident, there were multiple other outages attributed, in part, to break malfunctions.  During that period, the Escalator had outages “every three days and was shutting down every nine days.”          
 
On a motion for summary judgment, it is not enough for a defendant to identify problems or issues with a plaintiff’s negligence case. Rather, it is the defendant's burden to show that its alleged negligence was not the proximate cause of the plaintiff’s accident.  See Hairston v. Liberty Behav. Mgmt. Corp., 157 A.D.3d 404, 405, 68 N.Y.S.3d 439, 440 (1st Dep’t 2018); Artalyan, Inc. v. Kitridge Realty Co., 79 A.D.3d 546, 547, 912 N.Y.S.2d 400 (1st Dep’t 2010).  The Court determined that Defendants did not show they were free of negligence for causing the Incident.  Rather, the evidence (including Defendants’ own records), revealed a history of stoppages, outages, and problems with the Escalator in the two years prior to the Incident.  This led the Court to believe questions of fact existed as to Defendants’ notice.   
 
Denied. 

Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]

Hi Readers,
 
Welcome to the newest column in Premises Pointers, “Are you fall real?” I will be co-authoring this column with my colleague, Patrice Melville.
 
This month, both cases are out of the Second Department. The Appellate Division issued two decisions reiterating what is necessary for a defendant to prove in order to obtain summary judgment, and an owner’s responsibility when there is an injury on its premises.
 
As summer is wrapping up, I hope everyone enjoyed theirs. I, for one, am looking forward to the cooler weather, hot chocolate and sitting by the fire!


6/21/23           Patterson v H.E.H, LLC
Appellate Division, Second Department
Defendant/Out of Possession Property Owner was not responsible for Plaintiff’s injuries despite responsibilities under the lease to make certain repairs.
 
Plaintiff was allegedly injured when he slipped and fell on ice in an exterior parking lot. The subject premises was owned by defendant, H.E.H., LLC, and leased to plaintiff’s employer. Defendant’s/property owner’s motion for summary judgment was granted by the lower court, and plaintiff appealed. The dispute was not whether there was ice in the subject parking lot, but rather whether the defendant/property owner should be held liable for plaintiff’s accident. 
 
Generally, a property owner has a duty to maintain its premises in a reasonably safe condition. An exception to that rule is that an out-of-possession landlord is not liable for injuries caused by a dangerous condition on a leased premises absent a duty imposed by statute, contract, or course of conduct.
 
Plaintiff argued, and the Court rejected, that because the defendant/property owner had a responsibility, under the lease, to make certain repairs, it was liable for his injuries. It should be noted that plaintiff failed to demonstrate that the defendant had a duty to remove snow and/or ice from the subject premises. The Court held that it is possible for an out-of-possession landlord to have a limited duty to maintain or repair a leased property in some respect, while having no responsibility to maintain or repair the leased property in another respect.
 

7/5/23             Islam v City of New York, et al
Appellate Division, Second Department
General cleaning and inspection practices is insufficient to establish a lack of constructive notice.
 
Plaintiff alleged that he was injured when he slipped and fell on snow and ice on a subway station’s staircase. The defendants, the City of New York and New York City Transit Authority, moved for summary judgment on the ground that they did not create the alleged hazardous condition and/or have actual or constructive notice of its existence. The Supreme Court granted the defendants’ motion; plaintiff’s appealed and the Appellate Division reversed.
 
In support of their motion, the defendants only submitted evidence describing their general cleaning and inspection practices regarding the subject staircase. The Court has repeatedly held, as it did in this case, that referencing general cleaning and inspection practices is insufficient to establish a lack of constructive notice. Thus, the defendants did not demonstrate a prima facie entitlement to summary judgment.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]