Premises Pointers - Volume VII, No. 6


Volume VII, No. 6
November 30, 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.



I hope everyone had a nice Thanksgiving! It's hard to believe it's already holiday season, but here we are with December upon us.
In legal news, this past week, New York’s Adult Survivors Act’s lookback window closed. The window provided a one-year opportunity for adult survivors to bring civil actions previously barred by the statute of limitations. Our CVA Attorney Michael J. Williams addresses the closing of the window, the flurry of deadline filings, and the intent of the legislation’s sponsors to reopen and seek a permanent termination of the statute of limitations on these claims, in his latest legal alert.
In firm news, this month, Hurwitz Fine was honored to receive Tier One rankings by Best Lawyers in nine practice areas, including:

We also ranked in the inaugural Chambers 2024 New York Regional Spotlight Guide for Dispute Resolution, which encompasses both litigation and insurance disputes. This ranking recognizes firms that do “remarkable work which results in an impressive regional reputation” and offer a “credible alternative to Big Law.” Hurwitz Fine is one of only four Buffalo law firms featured in the Spotlight, and one of only two featured for Dispute Resolution. This is an exciting achievement for our firm, and we are excited to share the news.
As always, if you have any questions regarding any of the columns or cases in this month’s edition, feel free to reach out to our columnists. They would love to hear from you!


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.

Labor Law Pointers:  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:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 

Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] 
The Hall case below is a good illustration of how interactions with store employees, and statements made during those interactions, could be relied upon to successfully oppose a summary judgment motion despite the hearsay rule. The defendant in the next case fell victim to dueling expert reports that created a question of fact.
11/2/23            Linda Hall v. BJ’s Wholesale Club, Inc.
United States District Court, Eastern District of New York
This case presents an interesting hearsay question and whether statements allegedly made by a BJ’s manager were admissible in opposition to BJ’s motion for summary judgment – the court determined they were and denied the motion.
Plaintiff slipped and fell on a brownish, dirty liquid puddle while shopping at BJ’s. Following the fall, she had a conversation with an employee identified as a manager. Plaintiff does not remember that alleged manager's name, nor whether she wore a uniform or nametag. The alleged manager told plaintiff that she had seen the accident on video and that plaintiff had slipped in chicken juice that was spilled by another BJ’s employee while “moving something.” Plaintiff's allegations about that conversation are the primary support for her claim. Defendant moved for summary judgment and argued that the statements of the person identified by the plaintiff were inadmissible hearsay because the person was not proven to be a BJ’s employee. Here, the court determined there was sufficient evidence that the statement was made by a BJ’s employee in the scope of his employment and thus was sufficient to create an issue of fact. Defendant’s motion was therefore denied.

11/15/23          Bender v. Lowe’s Home Centers, Inc.
United States District Court, Western District of New York
Slip and fall claim due to snow and ice in parking lot survived summary judgment motion based on storm in progress doctrine due to dueling expert reports.
Plaintiff slipped and fell in Lowe’s parking lot allegedly due to snow and ice. The Lowe’s store at issue is located in Orchard Park, NY, where the Buffalo Bills stadium is and a snow belt in the Western New York area. There was no dispute regarding the existence of lake effect weather conditions and several inches of snow accumulation in the early hours of December 11th and that these conditions constituted a storm. However, the plaintiff’s fall occurred hours after the major storm ended though defendant argued some precipitation continued. Plaintiff’s expert disputed that claim. According to the court “If 'a winter snowstorm [was still] in progress' because 'light to heavy' snow continued to fall…then the storm-in-progress doctrine will preclude liability. On the other hand, 'if there was “no measurable precipitation' at that time…there was no storm in progress.” Given the dispute, the motion was denied.  
Labor & Employment for Retailers, Hospitality, and School District Litigation
By: Anastasia M. McCarthy [email protected] 
Dear Readers,
I hope you all had a restful and pleasant Thanksgiving.  This year’s celebration looked a little different in my family—not only was it the first time dinner was hosted at my house, but there were far fewer of us than in previous years.  For many years, my in-laws hosted the family as well as many of the medical residents and fellows working with my father-in-law, who is an oncologist.  Because so many of our attendees were from all over the country (and the world) the menu was always very diverse and fun. I have many fond memories from those dinners, although it was very nice to have a more laid back and relaxing day/evening at home this year.

Rather than give you a case this month, I’d like to make you aware of a recent change to New York law that will certainly impact businesses throughout the state in the coming years.  Earlier this month, Governor Hochul ratified Senate Bill S3255, which extends the statute of limitations for discrimination claims filed with the NYS Division of Human Rights from one to three years.  This means that litigants may now commence an action with DHR within three years of the most recent act of discrimination.  Although administrative claims of sexual harassment (and formal causes of action filed in NY State Supreme Court) were already permitted under a three-year statute, this new legislation broadens the scope of what may be filed with DHR within a three-year period.  Now, a claimant may file a Complaint with DHR for other forms of discrimination, such as discrimination on the basis of age, race, sexual orientation or gender identity/expression, disability, religion/creed, military status, familial/marital status, or status as a victim of domestic violence, within a three-year statutory period as well.

Notably, this law amends the Executive Law (“Human Rights Law”) and therefore expands the time to bring DHR claims only. It does not alter federal EEOC filing deadlines nor the statute of limitations for formal litigation in a court of law.  Moreover, the new Statute of Limitations is not retroactive and will not apply to discrimination claims arising before the Bill’s effective date, which is February 15, 2024.

If you have questions about this new legislation, or wish to dismiss a new claim with us, please feel free to reach out.

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

Hello Subscribers,
Happy Thanksgiving! This month’s edition contains one discovery case and a clear failure to comply with court-ordered discovery under CPLR 3126 that resulted in dismissal of the complaint. Remember that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully. When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the trial court’s discretion to strike or dismiss a pleading. A trial court may dismiss the complaint under CPLR 3126 where there is a clear showing that the failure to comply with court-ordered discovery is willful or contumacious. A court will infer that a party is acting willfully and contumaciously through the party’s repeated failure to respond to demands or to comply with discovery orders.
If you have any experience with discovery motions involving willful and contumacious conduct (hopefully, of your adversary), please reach out and share. Until next issue, good luck with your holiday shopping …

11/01/23          Halyard v Magellan Aerospace N.Y., Inc.
Appellate Division, Second Department
Plaintiff’s failure to comply with conditional order of dismissal results in dismissal of complaint.
Plaintiff was allegedly injured when he tripped and fell on a sidewalk abutting defendants’ premises. His medical records stated that he reportedly was talking on his cell phone at the time of his incident. At his deposition, however, he denied that he was talking on his cell phone when his incident occurred. Defendant made numerous requests seeking the disclosure of plaintiff’s cell phone records for that date, including by serving discovery demands on plaintiff.
After plaintiff’s repeated refusal to produce those records, the trial court granted defendants’ motion to compel and directed plaintiff to produce his cell phone records within 30 days. More than 30 days later, plaintiff provided “authorization for release of health information pursuant to HIPAA” that was directed to his cell phone provider, which was rejected. The trial court, upon reargument, adhered to its original decision, which conditionally granted defendants’ cross-motion to dismiss the complaint unless plaintiff provide certain records within 30 days of the order, denied plaintiff’s motion to vacate the prior order, and dismissed the complaint,
The Court held that the willful and contumacious character of plaintiff’s conduct can be inferred from his repeated refusal to respond to defendants’ discovery demands for his relevant cell phone records, his failure to meaningfully and timely comply with the trial court’s order directing such disclosure, and his failure to provide any reasonable excuse for these failures. Because plaintiff failed to provide a reasonable excuse for his failure to comply with the conditional order of dismissal, the Court declined to consider whether a potentially meritorious cause of action exists.

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

November is almost over.  Thanksgiving is behind us.  Many of us turn our attention to the Holiday Season and New Year.  Before we move ahead to December, here are some interesting Thanksgiving facts: (1) the first Thanksgiving was celebrated in 1621 and took place over several days; (2) Abraham Lincoln made Thanksgiving a national holiday on October 3, 1863; (3) Arizona, Texas, Louisiana, and North Carolina possess towns named “Turkey”; (4) Americans consume an average of 3,500 - 4,500 calories on Thanksgiving; and (5) the first “Turkey Trot” dates back to 1896 in Buffalo, New York.  I hope that everyone enjoyed Thanksgiving!      
A quiet month in November.  Only one case.  Must be too cold to go outside. 
I hope you enjoy the ride. 

11/16/2023                  Rawlins v. Shore View Real Estate Holding LLC, et ano.  
Supreme Court, Kings County

Res Ipsa Loquitur sufficient to defeat summary judgment.
Plaintiff, Anthony Rawlins (“Plaintiff”), commenced an action to recover damages for personal injuries sustained when an elevator (the “Elevator”) allegedly came to an abrupt stop after rapidly descending (the “Incident”).  The Incident occurred on July 28, 2014, at the premises located at 2865 Brighton 3rd Street, Brooklyn New York (“Building”).  Plaintiff was employed as a Porter at the Building.  The Building contained four (4) elevators, including the Elevator.  The Elevators were serviced and maintained by Defendant/Third-Party Plaintiff, Nouveau Elevator Industries Inc. (“Nouveau”), pursuant to a maintenance service agreement (the “Agreement”). 
Defendant Shore View Real Estate Holding LLC (“Shore LLC”), and Third-Party Defendant Shore View Acquisition I, LLC s/h/a Shoreview Nursing Home d/b/a Shore View Nursing and Rehabilitation Center (collectively, “Shore View”) moved for summary judgment dismissing: (1) Plaintiff’s Complaint; (2) Nouveau’s Cross-Claims; and (3) Nouveau’s Third-Party Complaint.
Nouveau cross-moved for summary judgment dismissing: (1) the Plaintiff’s Complaint; (2) Shore View’s Cross-Claims; and (3) Shore View’s Counterclaims. 
General Law:
“A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect, or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect.”  Goodwin v Guardian Life Ins. Co. of Am., 156 A.D.3d 765, 766 (2d Dep't 2017) (internal citations omitted); Nunez v Chase Manhattan Bank, 155 A.D.3d 641, 643 (2d Dep't 2017); Cilinger v Arditi Realty Corp., 77 A.D.3d 880, 882 (2d Dep't 2010).
However, “[a]n out-of-possession landlord is not liable for injuries that occur on leased premises 'unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct' to perform the relevant maintenance or repairs.” Cali Dev. Corp. v Church Side Realty LLC, 208 A.D.3d 451, 452 (2d Dep't 2022) (quoting Grant v. 132 W. 125 Co., LLC, 180 A.D.3d 1005, 1007 [2d Dep't 2020]).  “Reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession owner or lessor for injuries caused by a dangerous condition, but only when ‘a specific statutory violation exists and there is a significant structural or design defect.’”  Lowe-Barrett v City of New York, 28 A.D.3d 721, 722 (2d Dep't 2006) (quoting Stark v Port Auth. of NY & NJ, 224 A.D.2d 681, 682 [2d Dep't 1996]; Thomas v Fairfield Invs., 273 A.D.2d 118, 118 [1st Dep't 2000]).
Shore View’s Motion:
The proof submitted established as a matter of law that Shore LLC was an out-of-possession landlord with no obligation to inspect, maintain or repair the subject elevators. Shore View’s witness testified that Shore View was responsible for seeing to improvements, upgrades, or repairs to the elevators, be responsible for overseeing maintenance work, and be responsible for signing off on work tickets or documentation generated by Nouveau in connection with the maintenance of the Elevator.  Shore LLC thus established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord which retained no control over the Elevator and assumed no duty to maintain the Elevator or make repairs by contract or course of conduct.  Michaele v Steph-Leigh Assoc., LLC, 178 A.D.3d 820, 821 (2d Dep't 2019); Fuzaylova v 63-28 99th St. Farm Ltd., 161 A.D.3d 946, 946 (2d Dep't 2018).  Shore View further established, through the deposition testimony of Shore View's maintenance director, and the affidavit of Shore View's expert, that Shore View never undertook to repair or maintain the mechanical systems of the Elevator, which was done by Nouveau, and that Shore View did not have actual or constructive notice of any defect in the Elevator which would have caused the elevator to overspeed. 
Plaintiff and Nouveau failed to offer proof in opposition sufficient to raise issue of fact as to Shore View’s lack of responsibility as an out-of-possession landlord or showing that Shore View created a defect which caused the incident or had actual or constructive notice of such defect.  While plaintiff testified that there were prior occasions of “entrapment,” there was no proof offered indicating that these entrapment events were indicative of a “specific defect” which would have caused the over speeding and stopping of the Elevator as alleged by Plaintiff.  Lee v City of New York, 40 A.D.3d 1048 (2d Dep't 2007).  Further, the doctrine of res ipsa loquitor is unavailable to raise an issue of fact as to the liability of Shore View, since the responsibilities for inspection, repair and maintenance of the Elevator were ceded to Nouveau.  Lonigro v WFP Tower B. Co. L.P., 199 A.D.3d 573, 575 (1st Dep't 2021); Chambers v Tilden Towers Hous. Co. Section II Inc., 177 A.D.3d 413, 413 (1st Dep't 2019). 
Shore View’s motion for summary judgment was granted to the extent that the Complaint and Cross-Claims for contribution, common law indemnification and contractual indemnification, were dismissed as against Shore LLC (as it was not a party to the Agreement).  Shore View’s motion for summary judgment was denied as to the Third-Pary Complaint.
Nouveau’s Cross-Motion
“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party.”  Alpha/Omega Concrete Corp. v Ovation Risk Planners, Inc., 197 A.D.3d 1274, 1282 (2d Dep't 2021); Dautaj v Alliance El. Co., 110 A.D.3d 839, 840 (2d Dep't 2013).  “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.”  Carter v Nouveau Indus., Inc., 187 A.D.3d 702, 703 (2d Dep't 2020); Barnes v Astoria Fed. Sav. & Loan Assn., ---AD3d---, 2023 NY Slip Op 05113, *1 (2d Dep't 2023).  Further, "[i]t is well settled that an elevator maintenance company owes a duty of care to members of the public and may be liable for failing to correct conditions of which it is aware, or failing to use reasonable care to discover and correct a condition which it ought to have found.” Alsaydi v GSL Enters., 238 A.D.2d 533, 534 (2d Dep't 1997).
Based on deposition testimony, inspection reports, work tickets and Expert Affidavits, Nouveau established its prima facie entitlement to judgment as a matter of law by showing that it did not have actual or constructive notice of an ongoing condition that would have caused the elevator to abruptly stop, and that it did not fail to use reasonable care to correct a condition of which it should have been aware.  Reed v Nouveau El. Indus., Inc., 123 A.D.3d 1102, 1103 (2d Dep't 2014); Tucci v Starrett City, Inc., 97 A.D.3d 811, 812 (2d Dep't 2012); Forde v Vornado Realty Trust, 89 A.D.3d 678, 679 (2d Dep't 2011).  However, Plaintiff raised issue of facts regarding the doctrine of res ipsa.  It has been held that a fast descent and sudden stop by an elevator is an event which does not ordinarily occur in the absence of negligence.  Syrnik v Board of Mgrs. Of the Leighton House Condominium, 198 A.D.3d 835, 837-38 (2d Dep't 2021); Rivera v Slade Indus., Inc., 199 A.D.3d 536 (1st Dep't 2021); Galante v New York City Hous. Auth., 146 A.D.3d 640, 640 (1st Dep't 2017).  The “exclusivity” requirement regarding possession and control over an elevator for purposes of applying res ipsa loquitur “is a relative term, not an absolute.” Burgess v Otis El. Co., 114 A.D.2d 784, 787 (1st Dep't 1985), aff’d 69 N.Y.2d 623 (1986).  Nouveau was the only entity that provided maintenance, service, and repair work for the mechanical components of the Elevator.
Since issues of fact were raised as to whether the rapid descent and sudden stop of the Elevator was an event which does not occur in the absence of negligence, and the exclusive control of Nouveau as to the maintenance and service of the elevator's mechanical components, the doctrine of res ipsa loquitur may be applied to defeat Nouveau's motion for summary judgment.  As a result, Nouveau's motion for summary judgment dismissing Plaintiff’s Complaint was denied.
As there were no contractual provisions in the Agreement for indemnification and contribution in favor of Shore View, or any requirement that Nouveau procure insurance on their behalf, that part of Nouveau's cross motion for summary judgment dismissing the related Cross-Claims and Counterclaims, was granted.  

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

Happy Thanksgiving!
Hope everyone enjoyed time with their family over this long weekend. We all have a lot to be thankful for – our families, jobs, and health, to name a few. In light of a couple recent health scares with my pup, I would like to take a minute to give thanks and express my gratitude to those who give up time with their loved ones to take care of others’ family members. 
In addition to being a time to count our blessings, Thanksgiving has, for years, marked the official start to both the holiday season and the snowy (and icy) weather. With the inclement weather approaching, I found these three recent decisions from the Appellate Division fitting.
11/8/23               Guiles v Vassar Brothers Hospital, et al 
Appellate Division, Second Department
The right to indemnification depends upon the language of the contract, and surrounding circumstances.
Plaintiff was allegedly injured when she slipped and fell on ice in the valet parking area outside the emergency room entrance of Vassar Brothers Hospital. Vassar Brothers’ Hospital, in turn, commenced a third-party action against, in part, against Red Cedar Arborists & Landscaper who contracted with the hospital to provide snow and ice removal services. Red Cedar Arborists & Landscaper was granted summary judgment and Vassar Brothers Hospitals’ claims for contractual and common-law indemnification were dismissed; the hospital appealed.
A review of the contract, in effect on the date of loss, revealed that Red Cedar Arborists & Landscaper’s was required to indemnify Vassar Brothers Hospital when a third-party injury “…arises out of, is incident to, or is in any manner occasioned…” by Red Cedar Arborists & Landscaper’s performance or nonperformance of its contractual duties. The contract required, in part, Red Cedar Arborists & Landscaper to apply salt and to conduct inspections for ice when there is a possibility of melting and refreezing.
The Appellate Division reversed the lower Court’s decision and held that Red Cedar Arborists & Landscaper failed to establish that its non/performance of its contractual duties didn’t give rise to plaintiff’s injures; and, Red Cedar Arborists & Landscaper failed to eliminate all triable issues of fact as to whether plaintiff’s accident was the result of its negligence or nonperformance. 
11/15/23             Miceli v City of Poughkeepsie
Appellate Division, Second Department
A municipality that adopted a prior written notice law may avoid liability for a dangerous condition that falls within the scope of the law if it can demonstrate it did not have prior written notice of said dangerous condition.

In January, 2019, plaintiff, while walking on a sidewalk in the City of Poughkeepsie, allegedly slipped and fell on ice. The City of Poughkeepsie filed a motion for summary judgment on the grounds that it did not have prior written notice of the alleged icy condition. The lower Court granted, and the Appellate Division affirmed, defendant’s motion for summary judgment.
Section 15.03 of the City of Poughkeepsie Administrative Code states, in pertinent part, that the municipality “may avoid liability for a defect of hazardous condition that falls within the scope of the law if it can establish that it has nor been notified in writing of the existence of the defect or hazard at a specific location”. However, notice is not required where the municipality created the defect through a negligent affirmative act or special use.
The City of Poughkeepsie demonstrated that it did not have prior written notice, and the plaintiff failed to demonstrate the City either created the condition or made special use over the area where she fell.
11/16/23             Gange v MJ Properties Realty, LLC, et al
Appellate Division, Third Department
Storm in Progress Doctrine does not apply when the storm has passed or the precipitation has slowed to a point where there is no appreciable accumulation.

On December 19, 2017, plaintiff allegedly slipped and fell on an exterior walkway due to ice. Defendant/property maintenance company and defendant/property owner were granted summary judgment by the lower Court due to the “storm in progress” doctrine. The Appellate Division reversed.
The storm in progress doctrine alleviates a property owner of the obligation to clear an area while there is continuous precipitation, or because of high winds in the area where the accident occurred it is being re-covered as fast as it is cleared. However, if the storm has passed and/or the precipitation has slowed to a point where there is no appreciable accumulation, the doctrine would not apply. Thus, so long as the storm in progress doctrine applies, a property owner will not be found negligent for plaintiff’s injuries sustained as the result of a condition occurring during an ongoing storm or for a reasonable time thereafter.
The Appellate Division reversed the lower Court’s decision as to the property owner for the following reasons: plaintiff demonstrated that the meteorological data indicated that there was only trace accumulations for the entire day; defendant was unable to provide documentary or testimonial evidence as to when the subject walkway was last inspected for snow and/or ice prior to the accident; the parties’ experts generally agreed that there were total accumulations of precipitation between .01 and .002 of an inches of precipitation for the entire day, which is less than what other Courts have routinely found to be insufficient to trigger the storm in progress doctrine; and, the experts agreed that the ice may have formed as early as 14 hours before the incident.

1 The complaint was not reinstated as to the property maintenance company as plaintiff agreed the company named in the suit was the wrong company.

School District & Municipal Liability
By: Kaitlin M. Sines [email protected]

Hi Readers,
Hoping you are staying warm and cozy, wherever you are reading this from!  Western New York has just gotten its first “real” snow of the season and I could not be more thrilled.  As a former North Carolinian, I always welcome the sense of peace and magic that snow brings.  Now, onto the real reason you are here – this month’s case.  This month’s case is out of the Fourth Department and involves a wrongful death action with an allegation of negligent failure to address and safeguard against harassment and bullying.  Though I hope none of you readers ever face a similar scenario, in the event that you do, please do not hesitate to reach out to our office to discuss your options and how we might be of assistance.
11/17/2023       Spring v. Allegany-Limestone Central School District
Appellate Division, Fourth Department (Available upon request)

This was an appeal from an Order of the Supreme Court, Cattaraugus County, that, among other things, denied the Defendant’s, Allegany-Limestone Central School District (“District”), Motion for Summary Judgment, seeking to dismiss Plaintiff’s Amended Complaint.  In her Amended Complaint, Plaintiff alleged that the District was negligent in failing to adequately address and safeguard against harassment and bullying at school during the school year and that the negligent acts and omissions of the District were a proximate cause of her son’s suicide at the start of summer vacation.  The District took the position that because the death occurred off school premises during summer vacation, meaning while the student was not within the orbit of the District’s authority, the District did not owe a duty of care to the student and could therefore not be held responsible for his death.  The trial court disagreed with the District as did the Fourth Department upon the District’s appeal.
As you readers surely know by now from our many columns, schools are under a duty to adequately supervise the children they are charged with watching over and the nature of the duty is such that schools must exercise the care that a parent or guardian of ordinary prudence would in a comparable circumstance.  The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.  Thus, it would naturally follow that the duty is coextensive with and concomitant to the school’s custody and control of a child.  When that custody and control ends because the child has passed out of the orbit of the school’s authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school’s duty also ends.  Simply put, in most cases, the duty of care does not extend beyond the school’s premises.  Also relevant to this case is the well-settled law that in a wrongful death action, a tortfeasor can be held liable for the suicide of a person who, as a result of the tortfeasor’s negligence, suffered a mental disturbance so severe that it destroyed the person’s will to survive.
Here, contrary to the District’s contention, the Fourth Department held that the District did owe a duty to the student: to adequately supervise his peers so as to prevent harassment and bullying from occurring while school was in session.  Recall, Plaintiff’s allegation was that the harassment and bullying her son endured during the school year, while he was physically at school, is what led to his emotional distress and ultimately untimely death.  In making its decision, the Fourth Department found that the District’s own motion submission at the trial level raised triable issues of fact whether they had sufficiently specific knowledge or notice of the alleged bullying and whether they adequately supervised the students.  Specifically, what worked against the District was the submitted testimony of the Plaintiff who recounted her son’s longstanding history of enduring bullying, her son’s attempts at responding physically to the bullying which were met with school-imposed discipline and both Plaintiff’s and her son’s repeated complaints to school employees and the principal, as well as the principal’s own acknowledgment at his deposition that the bullying had been reported on more than one occasion.  The Fourth Department further concluded that the District both failed to establish that the student’s suicide was not a reasonably foreseeable consequence of their alleged negligence and also failed to establish that the causal connection between its negligence and the student’s death was too tenuous.  In making its conclusion known, the Fourth Department instructed that where the alleged injury sustained death caused by a mental disturbance that destroyed the will to survive, the relevant question is whether a defendant’s negligence substantially contributed to the death.  Direct evidence of negligence is not necessary as proximate cause can be inferred from facts and circumstances surrounding a given event.  Again, the Fourth Department pointed to the District’s own motion submission at the trial court level and found that the submission unequivocally contained facts and circumstances from which a factfinder could reasonably infer that the District’s negligence substantially contributed to the student’s suicide.  Therefore, the District failed to establish, as a matter of law, that its alleged negligence was too attenuated to be a proximate cause of the death at issue in the case.
Readers, take a breath.  There is a lot to unpack in this decision and the underlying facts make it even heavier.  To sum it up for you, I would say this: Be mindful of what happens in school as what happens in school doesn’t always stay in school.  Until next time …
Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Kaitlin A. Sines
[email protected]
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