Premises Pointers - Volume VII, No. 5

Volume VII, No. 5
October 31, 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.

 

 
We are excited to report again this month on a case handled by our office. Last month, we brought you the case of Nancy Smith v. Target Corporation, among others. This month we are pleased to report on the case of Cecilia Lopez v. Target Corporation. Lopez has an interesting procedural background. Following removal of the case to Federal Court, the plaintiff filed a remand motion arguing that the case was improperly removed because the amount in controversy was not established even though a pre-suit settlement demand letter was submitted with the removal papers. The remand motion was denied and the case remained in Federal Court – a link to that decision is here. Following discovery, Target filed a motion for summary judgment, which was granted. Below is a summary of the decision, which was also written about by Law360.
 
 
10/19/23          Cecilia Lopez v. Target Corporation
United States District Court, Western District of New York
Plaintiff slipped and fell at the check out lane allegedly due to water on the floor from another guest’s umbrella – Plaintiff argued constructive notice because several Target employees were in the area of the checkout lane before the fall and as argued by plaintiff should have seen the water.
 
In this case, there is no question Plaintiff slipped and fell as the fall was captured on surveillance video. There is also no question that another shopper holding an umbrella walked toward the Guest Service area and waited in line for approximately 5 minutes. This shopper left the area at approximately 6:10 p.m. For the next five minutes, prior to Plaintiff's fall, several employees and other customers walked by the area, but there is no indication that any of them saw the water on the floor and no one else slipped and fell. While Plaintiff argued the presence of the Target employees in and near the area of the fall should constitute notice to Target, the court determined that notice cannot be reasonably inferred, without more. It was also not determined that the source of the water was indeed from the prior guest’s umbrella. However, even if that was the source of the water, the court ruled that ten minutes does not constitute an appreciable period of time to establish constructive notice.
 
 
9/29/23            Cosmo Campodonico v. Wal-Mart Stores
United States District Court, Southern District of New York
After a 4-day trial, Walmart was found 49% responsible for the accident at issue and Plaintiff was awarded damages for a “massive” rotator cuff tear with resulting surgery – a motion for judgment as a matter of law or a new trial followed but was denied by the court.
 
In this case, Plaintiff and his wife were shopping at a Wal-Mart store when he decided to try out a bicycle in the store. He selected one from several rows of bikes located in the garden center. They were not chained. Plaintiff rode the bicycle for “maybe 20 feet” before crashing. Plaintiff claims he crashed because the bike did not have brakes. There was testimony by Wal-Mart that 1.) bikes would arrive at the store with the brakes already assembled 2.) bikes would still be tested before they were put on the floor to make sure the wheels and brakes worked; and 3.) the general practice was to put a chain around the bikes so that shoppers would need to seek assistance before trying out a bike.

The motion for a new trial largely turned on the instructions to the jury. The Court held a charging conference the following morning, which took place before the jury heard closing arguments from counsel. At the charging conference, neither party objected to the Court’s proposed explanation of the “premises” in this case. The Court thereafter provided the following instructions to the jury regarding premises liability, prior to instructing the jury concerning the elements of Plaintiff’s claim:

The plaintiff claims that the premises were not in a reasonably safe condition because a bicycle that was placed out for sale at the Wal-Mart store had no brakes or defective brakes. The defendant contends that the bicycle in question had functional brakes and that the plaintiff was the sole cause of the accident. If you decide that the premises were reasonably safe, you will find for the defendant and proceed no further. If you decide that the premises were not reasonably safe, you will proceed to consider whether the defendant was negligent in permitting the unsafe condition to exist.
 
During the charging conference, Defendant argued that the medical evidence presented at trial raised a question of whether certain of Plaintiff’s injuries pre-existed the Wal-Mart with respect to causation, the jury was instructed:

An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury, that reasonable people would regard it as the cause of the injury. There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it. If you find that the defendant was negligent, you must next consider whether that negligence was a substantial factor in causing the plaintiff’s injury. An act or a failure to act is a substantial factor in bringing about an injury if a reasonable person would regard it as a cause of the injury. If you find that the defendant’s negligence was not a substantial factor in causing the injury, then the plaintiff may not recover damages. If you find that the defendant’s negligence was a substantial factor in causing the plaintiff’s injury, you will proceed to consider comparative fault.
 
The jury awarded a total of $3,000,000 in compensatory damages for Plaintiff’s bodily injury and pain and suffering.
 
Ultimately, the court denied Wal-Mart’s motion and concluded that the jury charges were appropriate. Thus, the verdict was upheld.
 
 
9/27/23            Anmbreen Shah v. Wal-Mart Stores
United States District Court, Southern District of New York
Plaintiff was injured when a merchandise rack fell on her – Wal-Mart’s motion for summary judgment was denied based in part on a res ipsa loquitur theory.

While shopping at Wal-Mart, a shopping rack fell on the Plaintiff. Before the rack fell on her, Plaintiff had not made any contact with the rack. In her opposition to Defendant's motion, Plaintiff maintains that summary judgment must be denied based on the doctrine of res ipsa loquitur. As a reminder, in order to justify a res ipsa loquitur theory, a Plaintiff must demonstrate that (1) the event was of a kind which ordinarily does not occur in the absence of someone's negligence (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the Plaintiff. For premises liability actions involving retailers, courts have found that the exclusivity element is satisfied when customers “do not have reasonable access to” or “are not expected to handle” the injury-causing instrumentality. According to the court, the evidence adduced by Plaintiff could enable a reasonable jury to find that Wal-Mart had exclusive control of the shelving rack in the Monroe store, because customers did not generally handle the mechanism whereby the shelving rack was affixed to the wall or end cap. Accordingly, the court denied Wal-Mart’s motion.

 

 
Dear Readers,
 
Happy Halloween! Having little kids, Halloween is again a big deal in my life. My family has spent months discussing and debating potential costumes, especially with our four-year-old who truly has some big ideas and no concept of practical limitations. We settled on a kitty-cat ballerina (with a light up tutu) and a Hobbit. Both kids are excited to trick-or-treat with Grandpa, who will be joining us from the Finger Lakes for the evening. They are pretty excited about the candy part too.
 
This month’s case has many twists and turns, including multiple suits stemming from the same allegedly discriminatory conduct.  And yet, despite litigating the same claims since 2012, Plaintiff is unable to prove any evidence of a causal connection (or even that the adverse employment action is sufficient under the law).
 
As always, feel free to drop me a line sometime.

 
10/26/23          Melody Barksdale v. Buffalo Board of Education
U.S. District Court for the Western District of New York
A pro se litigant’s (second) Complaint of discrimination is dismissed at the summary judgment stage.
 
In 2012, Plaintiff, a former social studies teacher in the Buffalo City School District, sued the Buffalo Board of Education alleging that she was constructively discharged from her employment as a result of discrimination (under Title VII, the ADEA, and the NY Human Rights Law).  This first lawsuit was settled in 2015 for $7,500 and Defendant obtained an executed Release. 
 
Despite executing a Release in 2015, Plaintiff filed a second lawsuit against the Board of Education several years later, claiming that the Board was preventing her from finding a new job by refusing to respond to requests for information from prospective employers. Before commencing this second lawsuit in federal court, however, Plaintiff filed a complaint with the NYS Division of Human Rights. The NYSDHR Complaint was dismissed after a Division Investigator determined that there was no probable cause to support the Plaintiff’s claims. The second federal court action was then initiated.
 
Plaintiff’s second lawsuit alleges that, because of her initial discrimination lawsuit in 2012, the Defendant later retaliated against her by not responding to requests from prospective employers.  The claims again were alleged to arise under Title VII, the ADEA, and the NYSHRL.  The Defendant moved for judgment – both by moving for judgment on the pleadings and for summary judgment.
 
The Court dismissed Plaintiff’s state law claims on the basis that they were barred by the election of remedies provision contained in the NYSHRL. This rule essentially states that, once a claim is brought before the Division of Human Rights, the same claim may not be brought again as a plenary action in another court. The argument is jurisdictional in nature and essentially leaves a subsequent court without subject matter jurisdiction to consider Plaintiff’s claims under those statutes. 
 
Plaintiff’s Title VII and ADEA retaliation claims were dismissed pursuant to Rule 56 of the Federal Rules of Civil Procedure (summary judgment). In order to prevail on these claims, Plaintiff needed to establish (1) that she was engaging in protected activity, (2) that defendant was aware of that activity, (3) that she was subject to retaliatory action (or a series of retaliatory actions) that were materially adverse, and (4) that there was a causal connection between the protected activity and the materially adverse employment action. If Plaintiff establishes a prima facie case, the burden shifts to the employer to provide a legitimate, non-retaliatory reason for the adverse action. If the employer is successful, the burden shifts back to the Plaintiff, who must establish that the desire to retaliate was the but-for cause of the challenged employment action.  Petty slights or minor annoyances are not materially adverse for purposes of a retaliation claim.

The Court ultimately determined that Plaintiff was unable to make out a prima facie case of retaliation because Plaintiff would not be able to establish a causal connection between her participation in a protected activity and the alleged retaliatory conduct. The Court also questioned whether the failure to respond to a request for information was even a sufficient adverse employment action in the first instance. More importantly, however, there was no evidence (neither temporal proximity nor other circumstantial evidence) of discriminatory animus or disparate treatment.
 
The Court went on to hold that, even if Plaintiff had established a prima facie case of retaliation, there was no evidence to suggest that the legitimate, non-retaliatory reasons offered by the Defendant for the handling of requests for information about former employees was pretextual.

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

Hello Subscribers,
 
The Bills play the Bengals next week in a huge Sunday Night Football game. Let’s Go Bills!
 
This month, we report on cases involving a Jackson affidavit and a conditional order of preclusion. Avid readers will recall I previously discussed a recent case analyzing such an affidavit in this edition. For those unfamiliar with a condition order of preclusion, it requires a party to provide certain discovery by a certain date, or face the sanctions specified in the order. Where a party fails to comply with the terms of a conditional order prior to the deadline imposed therein, the conditional order becomes absolute. To be relieved of the adverse impact of a conditional order, a defaulting party must demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious claim or defense. A preclusion order may serve as the basis for summary judgment if the moving party can demonstrate that the preclusion order will prevent from other party from establishing a claim or defense at trial.
 
If you have any good stories involving a Jackson affidavit or a conditional order of preclusion, I’d like to hear about your experience.
 
Until next issue,
 
Marc

 
10/03/23          1591 Second Ave. LLC v Metropolitan Transp. Auth.
Appellate Division, First Department
Defendants’ failure to provide Jackson affidavits as directed by the Court, coupled with their failure to comply with six prior discovery orders, demonstrated willful and contumacious conduct that warranted striking of defendants’ answer.
 
The trial court granted plaintiff’s motion to strike defendants’ answer and denied defendants’ motion to vacate the note of issue and compel the completion of outstanding discovery, finding that the two affidavits submitted by defendants did not meet the Jackson standard. The First Department unanimously affirmed the trial court’s decision. Neither affidavit explained “where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found.” (see Jackson v. City of New York, 185 AD2d 768, 770 [1st Dept 1992]).
 
Defendants’ submission of “patently insufficient affidavits”, along with their unexplained failure to comply with six prior court orders directing the submission of a Jackson affidavit, the last of which warned of sanctions, during a three-year period, permitted an inference of willful and contumacious conduct, justifying, under the circumstances, the drastic remedy of striking their answer. Because their answer was properly stricken, the Court also held that defendants were not entitled to vacatur of the note of issue or any discovery, including discovery in preparation for the damages inquest.
 
 
10/04/23          Ortiz v 1818 Bath Ave., LLC
Appellate Division, Second Department
Defendant’s motion to enforce a conditional order of preclusion should have been denied as plaintiff had a reasonable excuse for her failure to comply and a potentially meritorious action.
 
Plaintiff tripped and fell on defendants’ premises. The trial court granted defendant’s motion to enforce a conditional order of preclusion and then granted summary judgment dismissing the complaint. The Second Department reversed the trial court’s decision because plaintiff provided a reasonable excuse for her failure to comply with the conditional order of preclusion. Additionally, the Court noted that the verified pleadings and other documents submitted with plaintiff’s opposition to the motion satisfied plaintiff’s obligation to demonstrate a potentially meritorious action.
 
 
10/12/23          Wagmen v. Morgan Stanley Children’s Hosp. of N.Y. Presbyt.
Appellate Division, First Department
Plaintiff’s motion to strike defendants’ answer for spoliation of evidence granted for failure to preserve the pre-accident footage and only maintaining footage showing the twelve seconds prior to the slip and fall.
 
Plaintiff slipped and fell in the sixth-floor reception area of defendant hospital. The incident was captured on camera from two different angles. Although plaintiffs took all steps available to preserve the video footage, including requests within days of the slip and fall that defendants preserve the 48 hours of footage prior to the accident, defendants failed to preserve the pre-accident footage. The trial court granted plaintiff’s motion pursuant to CPLR 3126 to strike defendants’ answer for spoliation of evidence. The First Department unanimously affirmed the trial court’s decision as the footage from the period before plaintiff’s slip and fall was crucial to plaintiffs’ proof of notice because it would have shown the origin of the substance plaintiff allegedly slipped on, and how long that condition existed.

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

Today is Halloween.  For some, a remembrance of the dead, including saints (or “hallows”) and martyrs.  For others, a remembrance of our favorite seasonal candy and treats.  I am particularly excited for the Hershey’s Assorted Halloween Candy Bag, which includes Hershey’s White Chocolate Fangs, Kit Kat Breaking Bones, Kit Kat Witch’s Brew, and Reese’s Bats and Pumpkins.  I think its fair to say (objectively) that Reese’s Pumpkins have the greatest ratio of chocolate to peanut butter of any other Reese’s product.  It’s science.  In addition, candy corn is highly underrated.  This wonderful confection (originally called “Chicken Feed”) was first invented in the late 1800s and produced by the Wunderle Candy Company.  I support any candy around for over 100 years.  Happy Halloween!         
 
A spooky month for vertical transportation.  We have three (3) cases this month alleging vertical transportation defects.  Let’s check them out.  Boo!
  
I hope you enjoy the ride. 
 
Scott
 

10/4/2023                  Jackson v. Forest City Jay Street Associates, L.P., et al.  
Appellate Division, Second Department
Issue of fact raised regarding negligent inspection prevents summary judgment.
 
Plaintiff commenced multiple actions to recover damages for personal injuries allegedly sustained when an elevator (the “Elevator”) malfunctioned and rapidly descended, before coming to an abrupt stop (the “Incident”).  The first action was filed against Schindler Elevator Corporation (“Schindler”).  A second action was filed against Forest City Jay Street Associates, L.P. and First New York Partners Management, LLC.  Plaintiff alleged that Schindler was responsible for maintenance of the Elevator.  The two actions were consolidated.  Schindler moved for summary judgment, which was denied.  Schindler appealed. 
 
Schindler’s appeal was denied, and the decision affirmed.  Schindler (which agreed to maintain the Elevator in safe operating condition) can be liable to an injured passenger “for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition it ought to have found.”  Rogers v. Doechester Assoc., 32 N.Y.2d 553, 559 (1st Dep’t 1973); see Carter v. Nouveau Indus., Inc., 187 A.D.3d 702, 703 (2d Dep’t 2020).  While Schindler submitted evidence demonstrating that it did not have notice of a defect in the Elevator that would have caused it to rapidly descend, Plaintiff, in opposition, raided triable issue of fact.  Plaintiff submitted an affidavit of an expert, which raised issue of fact as to whether Schindler was negligent in its inspection of the Elevator.  See Barcliff v. Schindler El. Corp., 197 A.D.3d 1228, 1229 (2d Dep’t 2021). 
 
Affirmed.    
 
10/5/2023                  WTC Tower 1 LLC, et al. v. Thyssenkrupp Elevator Corporation  
Appellate Division, First Department
Defendant’s motion to dismiss for failure to join a necessary party denied.
 
The First Department affirmed the Supreme Court’s Decision and Order which correctly determined that Conde Nast Publications, Inc. (“Conde Nast”) was not a necessary or indispensable party because no legal or factual basis was cited by Thyssenkrupp Elevator Corporation (“TEK”) to assert a claim against it.  The Court also considered Conde Nast’s interests and determined it was unnecessary to the adjudication of the action.  See Swezey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 N.Y.3d 543, 550-51 (2012).  Neither Plaintiff nor TEK provided evidence that Conde Nast was negligent or had a legal duty to maintain the elevator that serviced the building where it was a tenant.  The Court determined that Plaintiff’s presence in the building occasioned by her employer’s contract with Conde Nast was insufficient.  Moreover, there was no evidence that non-joinder will prevent the parties from obtaining full relief and TEK was able to file a third-party action against Conde Nast pursuant to CPLR 1007 assuming it had a proper legal and factual basis to do so.      
 
Affirmed
 
10/11/2023                  Barnes v. Astoria Federal Savings and Loan Association  
Appellate Division, Second Department
Deposition testimony raised triable issue of fact precluding summary judgment.
 
Plaintiff alleges injuries while a passenger in an elevator (the “Elevator”) in a building owned by Astoria Federal Savings and Loan Association (“Astoria”).  Plaintiff alleged that an escape hatch panel fell from the ceiling of the Elevator.  Plaintiff filed suit against Astoria, who filed a Third-Party Complaint against Otis Elevator Company (“Otis”).  Astoria retained Otis to maintain/service the Elevator pursuant to a contract.  Plaintiff subsequently amended the Complaint adding Otis as a Defendant.  Otis moved for summary judgment, which was denied.  Otis appealed an Order of the Supreme Court, Queens County denying its motion for summary judgment. 
 
“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found. Further, a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons . . . where the contracting party has entirely displaced the other party's duty of safe maintenance.”  Carter v. Nouveau Indus., Inc., 187 A.D.3d 702, 703 (2d Dep’t 2020).  Otis alleges entitlement to summary judgment because it “did not owe or breach any duty with respect to the escape hatch panel.”  While the terms of its contract with Astoria appear to exclude the elevator escape hatch ceiling panel, a transcript of the deposition testimony of a mechanic employed by Otis demonstrated that the exclusion provision was disregarded, and that the escape hatch ceiling panel had been the subject of prior service calls.  As such, questions of fact existed.  Order affirmed. 
 
Affirmed.

Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Patrice C. S. Melville [email protected]

Hi Readers,
 
Last month, my co-author and colleague, Ashley Cuneo, introduced you to the newest column in Premises Pointers, “Are you fall real?” We are so excited to be on board! This issue, which also happens to be my first, features a few interesting appellate decisions regarding the fatal effect of a plaintiff’s inability to identify a dangerous condition that caused the plaintiff’s accident.
 
I hope you are all enjoying this wonderful fall weather. Enjoy the pumpkin spiced lattes and multi-colored leaves. To my fellow Game of Thrones fans, winter is coming…  
 

10/4/23            Ventimiglia v. Genting New York, LLC
Appellate Division, Second Department
Casino owner successfully established that there was no defective or dangerous condition that caused the plaintiff’s fall.
 
The plaintiff commenced this action due to fall in the food court of Resorts World Casino in Queens. The defendant moved for summary judgment dismissal of the complaint, asserting that the videotaped surveillance footage showed that the plaintiff tripped over his own feet. The Supreme Court granted this motion. The plaintiff appealed.
 
During his deposition, the plaintiff testified that he slipped on a wet floor as he was walking through the premises, but admitted to blurting out after the accident that he tripped over someone else's leg. The defendant relied on this testimony along with surveillance footage and the testimony of a food court supervisor in support of its motion. The surveillance footage showed that the plaintiff tripped over his own feet and failed to show any evidence of liquid on the floor; and the food court supervisor executed an affidavit stating that the floor was not wet immediately after the fall. The Appellate Court affirmed the lower court’s ruling, finding that the defendant established that there was no defective or dangerous condition that would cause the plaintiff to fall. 

 
9/20/2023        Meade v. Hampton Diaries
Appellate Division, Second Department
Store owner and store operator were not liable for personal injuries allegedly sustained by customer when he tripped and fell on a mat in the store.
 
Plaintiff brought this action against a store owner and operator to recover damages for personal injuries he allegedly sustained when he tripped and fell on mat in store. During the plaintiff’s deposition, he identified the mat that he claims caused his accident, but failed to identify any defect with the mat that allegedly caused his accident. The defendants filed a motion for summary judgment dismissal on these grounds. In opposition, the plaintiff alleged, for the first time, in his supporting affidavit that the mat was bunched up. ultimately, the Supreme Court granted the defendants’ motion. The plaintiff appealed.
 
On appeal, the Court held that the defendants established, through plaintiff's own deposition testimony that the mat at issue was not in a hazardous condition, and that plaintiff's affidavit presented a feigned issue of fact designed to avoid the consequences of his earlier deposition testimony. Accordingly, the Appellate Division found that the Supreme Court properly granted defendants’ motion for summary judgment.
 
8/16/23            De Rose v. Anna & Rose Realty Company, LLC
Appellate Division, Second Department 
Defect in step was not proximate cause of Plaintiff's fall, absent showing that the Plaintiff fell from that particular step.
 
The plaintiff allegedly was injured when she fell while descending an interior stairway in the apartment building in which she lives. During the plaintiff's deposition, she identified a defect in a step as the cause of her accident. However, the plaintiff actually fell from another step and admitted that she did not know what caused her to lose her balance and fall. The defendants moved for summary judgment on the ground that there was no causal link between their alleged negligence and the plaintiff's fall. The Supreme Court denied the motion. The defendants appealed.
 
On appeal, the Court reasoned that a defendant may meet its burden on a motion for summary judgment by establishing that the plaintiff cannot identify the cause of his or her fall without resorting to speculation. The Court reiterated that a plaintiff's inability to identify the cause of the fall is fatal to the plaintiff’s case, because a finding that the defendants’ negligence, if any, proximately caused the plaintiff's injuries would be based on speculation. Ultimately the Court reversed the lower court’s decision, finding that any determination that the defect identified by the plaintiff was the proximate cause of her accident, rather than a misstep or loss of balance, would be based on speculation. 

NEWSLETTER EDITOR
Jody E. Briandi
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ASSISTANT EDITORS
Anastasia M. McCarthy
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Marc A. Schulz
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Scott D. Kagan
[email protected]

Patrice C.S. Melville
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Ashley M. Cuneo
[email protected]

Kaitlin A. Sines
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