Volume VII, No. 8
January 31, 2024
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.
NOTE FROM THE EDITOR:
We are fortunate to begin 2024 with several new attorney additions to the firm!
Tabitha R. Salonen, Christopher J. Kolber and Isabelle H. LaBarbera were recently sworn in as attorneys in New York State despite the blizzard that overtook Buffalo! All three have worked at the firm for several months assisting our medical malpractice, commercial litigation and insurance coverage teams and we are thrilled to be able to officially call them lawyers. Alexandria T. Awad and Jennifer I. Lopez also recently joined the firm as litigation associates, bringing several years of experience with them to focus on general liability personal injury matters.
On our corporate side, seasoned trusts & estates attorney Melissa A. Pezzino joined the firm, and we are excited to relaunch our Estate Planning Team. While estate planning has been a core focus of Hurwitz Fine’s for more than 40 years, Melissa brings with her in-depth experience in elder law, estate planning, probate, and estate administration matters, handling straightforward, complex and contested matters. Although I am a litigation defense attorney, I am often approached by my clients and peers on basic estate planning questions—when someone gets married, has children, or a loved one passes away, oftentimes as a lawyer, I am asked to help explain terminology or where they should seek next steps. We are going to start the next few editions of Premises Pointers with a special column from Melissa, focusing on Estate Planning FAQs. This month’s column will focus on “When is it Necessary to Open an Estate?”
While Melissa is located in our Buffalo, NY office, she can assist on any New York State matter so feel free to reach out to her with any question. And speaking of other parts of the state, last month I had the pleasure of spending the entire week with my Melville team, led by resident partner Brian F. Mark. While I do not love driving around Long Island, I did have a great week in the office and am very grateful to the team for assisting us in Buffalo during our latest snowstorm when we had to close our office. As we look to February, fingers crossed we make it through without any more significant snow events (though I’m told Lake Erie is not frozen, so I don’t think we are out of the woods yet!).
Until next month,
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 Liz Midgley at firstname.lastname@example.org 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]
January was a quiet month for cases in the retail, restaurant, and hospitality world in New York and the 2nd Circuit. I expect things to pick up in the coming months. In fact, I am arguing an appeal for a retail client at the Fourth Department. The threshold question is whether the dangerous condition alleged actually constitutes a legally actionable defect. Stay tuned for the outcome there. The Trial Court granted the motion so now it is up to the Appellate Court. Due to the lack of cases in New York, I poked around in other jurisdictions. Here are a few cases:
1/3/23 Lucretia Estep v. Walmart
United States District Court, D. Maryland.
Plaintiff Lucretia Estep slipped and fell at a Walmart store in California, Maryland, on August 13, 2019, due to a liquid substance on the floor resembling shampoo.
The store surveillance video showed a Walmart employee mopping the aisle 27 minutes before the incident and walking past the spot 18 minutes before the fall.
Walmart employees apologized to Ms. Estep after the fall, admitting they should have cleaned up the spill. To prove negligence in Maryland, a plaintiff must establish duty, breach, actual injury, and proximate causation. Storeowners have a duty to use reasonable care to keep premises safe for invitees. The burden is on the customer to show that the store had actual or constructive knowledge of a dangerous condition. The court granted Walmart's Motion for Summary Judgment. Ms. Estep's negligence claim failed as there was insufficient evidence that Walmart had notice of the substance on the floor. Statements and actions by Walmart employees did not amount to an admission of notice. The surveillance video and mop inspection did not establish constructive knowledge, and there was no evidence of how and when the substance was spilled.
1/19/24 Lynda s. Rowland v. Outback Steakhouse
United States District Court, W.D. Louisiana, SHREVEPORT DIVISION.
In this slip and fall case at Outback Steakhouse in Shreveport, Louisiana, two incidents occurred involving individuals named Rowland and Stallcup on December 12, 2020. Rowland slipped but did not fall, and Stallcup slipped and fell. Both incidents prompted Outback employees to clean the respective areas. The defendants moved for summary judgment based on Louisiana's Merchant Liability Statute (La. R.S. 9:2800.6), arguing that the plaintiffs failed to establish the existence of a hazardous condition and the defendants' lack of reasonable care.
The court denied the summary judgment motions, noting disputes over the hazardous condition and the defendants' care. The court highlighted that there were factual disagreements regarding the cleaning chemicals used on the floors and the frequency of cleaning. Expert testimony suggested the likelihood of grease/oil on the floor in a restaurant environment and identified safeguards. The court concluded that genuine disputes of material fact existed as to whether a hazardous condition existed, whether the defendants created or had notice of it, and whether they failed to exercise reasonable care, thus rejecting the summary judgment motions.
And finally, a case from New York…
12/7/23 Axelrod v. 44 Lexington Associates, LLC
First Department, New York State Supreme Court
Slip and fall accident at hotel: The Court considered questions of vicarious liability and special employee status of engineers working at hotel.
The court denied Transition Management Corporation's (TMC) motion for summary judgment in a case involving a slip and fall incident at a hotel. TMC sought dismissal of the complaint and cross-claims against it. The court affirmed the denial, stating that TMC failed to establish that the engineers it provided to the hotel were special employees of the hotel, thus not relieving TMC of vicarious liability for the alleged negligence.
The court noted that TMC did not show that it relinquished complete and exclusive control of the engineers to the hotel. Despite the hotel's director of engineering having day-to-day control, TMC retained control, including the right to terminate employment. The service agreement and evidence raised questions about whether the engineers were special employees of the hotel.
Issues of fact were identified, including whether TMC's employees contributed to the alleged hazard causing the accident. The court also addressed TMC's contention regarding the service agreement's coverage, finding that it applied to the premises where both the restaurant and hotel were located. Codefendants' cross-claim for contractual indemnification against TMC was deemed to survive.
TMC's remaining arguments were considered and found unavailing by the court.
Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
We hope you enjoyed the snow days, which gave us Bills fan time to forget what could have been…
With Courts slow to recover from their holiday slumber, this month’s edition contains only one discovery case, albeit one wherein the demand sought discovery that was not material and necessary to the prosecution of plaintiff’s action. For those new readers or those who like refreshers, CPLR § 3101(a) requires the “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of the proof. “The words, material and necessary, are … to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial.” However, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure, and the trial courts have broad power to regulate discovery to prevent abuse.
Most forget that it is also incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims. Kindly reach out to share your experiences with discovery-related motions, especially if they involve relevancy arguments. Until next issue, stay safe!
01/24/24 Harrington v New York City Tr. Auth.
Appellate Division, Second Department
Plaintiff not entitled to conduct discovery regarding the fare box because it was not material and necessary to the prosecution of her slip-and-fall action.
Plaintiff was a passenger on a bus owned by defendant when the fare box at the front of the bus began emitting smoke. The bus driver pulled over and directed all the passengers to exit the bus. Plaintiff was exiting from the rear of the bus when she allegedly slipped on a wet substance on the floor inside the bus and landed on the sidewalk.
The trial court denied plaintiff’s motion to compel defendant to produce a witness for a deposition who was knowledgeable about the maintenance of the box on the subject bus, and to produce additional documents related to the maintenance of the fare box. The Second Department affirmed the trial court’s decision. Contrary to plaintiff’s contention, the condition of the fare box at the front of the bus was not a proximate cause of plaintiff’s accident, but, rather, merely furnished the occasion for plaintiff’s exit from the bus and her alleged slip and fall due to a wet substance on the floor of the bus.
Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]
As this is my first publication this year, I wanted to wish everyone a happy and healthy new year. It seems Upstate NY started off this new year with a bang – with snow totals being measured in feet rather than inches. We didn’t get much snow down on Long Island, but it was a cold one! I hope everyone that was impacted by the significant snowfall stayed safe and warm.
01/11/24 Chalas v Grass Roots Kitchen, et al
Appellate Division, First Department
Plaintiff was allegedly injured when he slipped and fell on a greasy substance on the floor of a walk-in refrigerator. The premises was owned by defendant Wildey Group, LLC; defendant Grass Roots Kitchen operated a restaurant out of the premises.
Defendants moved for summary judgment, which was denied by the Supreme Court, and affirmed by the Appellate Division. The Appellate Division held that defendants failed to establish prima facie entitlement to summary judgment. Defendants failed to present evidence demonstrating when the area was last cleaned and inspected, prior to plaintiff’s fall, and a witness who could testify regarding the evidence.
01/11/24 Serba v Town of Glenville
Appellate Division, Third Department
Plaintiff slipped and fell due to black ice in a municipal parking lot owned by defendant; she was walking from her car to the entrance for the Town Hall. The Town of Glenville filed a motion for summary judgment seeking to dismiss plaintiff’s complaint in part due to not having notice of the alleged dangerous condition. The Supreme Court granted defendant’s motion, and the Appellate Division affirmed.
Where a municipality enacted a statute requiring prior written notice of the alleged dangerous condition, it cannot be held liable unless it had said prior written notice and failed to remedy the condition within a reasonable time thereafter. An exception to this rule is if the locality created the defect or hazard through an affirmative act of negligence, which is limited to work that immediately results in the existence of a dangerous condition, and where a special use confers a benefit upon the locality.
The Appellate Division agreed that the Town of Glenville met its prima facie burden. Plaintiff’s expert argued that subject lot was not properly constructed so as to prevent the dangerous condition from forming. However, no evidence was presented to demonstrate that the paving of the subject lot (which was conducted several years prior to the subject accident) immediately created a dangerous condition. Thus, the exception was inapplicable.
School District & Municipal Liability
By: Kaitlin M. Sines [email protected]
2024 is off to quite the start here in Buffalo – a snowstorm and a devastating Bills loss… need I say more? This month’s column covers a couple of cases, both out of the Second Department. As always, please , feel free to call or email if you would like to chat about this case and/or a similar problem you may be facing.
9/27/2023 (Second Dept.) and 1/16/2024 (Court of Appeals)
Burdo v. Cold Spring Harbor Central School District (available upon request)
Affirmed upon appeal, upholding trial court’s decision that the Cold Spring Harbor Central School District (“District”) was not liable for personal injuries allegedly inflicted by the injured infant’s fellow students during an overnight school trip. Motion for leave to appeal to the Court of Appeals denied.
This was an appeal from an Order of the Supreme Court, Suffolk County, that granted the District’s Motion for Summary Judgment, dismissing Plaintiff’s Complaint. Plaintiff, Colin Burdo, was a sixth-grade student in 2011 when he was purportedly assaulted, harassed and bullied by his classmates during an overnight school trip. Plaintiff subsequently commenced a lawsuit alleging negligent supervision. The District moved for summary judgment which was granted by the trial court. Plaintiff appealed the decision.
In upholding the lower court’s decision, the Second Department recited well-settled law, namely that while schools have a duty to adequately supervise the students in their care, schools are not insurers of safety. The Court went on to write that “where [a] complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must allege that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable.” Here, the Court found that the District had submitted sufficient evidence to demonstrate that it lacked actual or constructive notice of prior similar conduct engaged in by the student perpetrators. The Court further found that the Plaintiff had failed to raise a triable issue of fact in opposing the District’s motion. Accordingly, the lower court’s decision was upheld. Thereafter, Plaintiff’s motion for leave to appeal to the Court of Appeals was denied. The lower court’s decision, as affirmed by the appellate court, remains intact.
12/27/2023 A.G. et al. v. Roosevelt Union Free School District et al.
Second Department (available upon request)
Affirmed as modified upon appeal.
This was an appeal from an Order of the Supreme Court, Nassau County, that granted the Defendants’, Roosevelt Union Free School District’s (“District”) and Board of Education of Roosevelt Union Free School District, motion for summary judgment and denied the Plaintiffs’ cross-motion for summary judgment. The Infant Plaintiff was a middle school student at a middle school operated by the District and a participant in an extracurricular musical theater production. During rehearsal at a high school in the District, she struck her toe on a metal anchor affixed to the stage while running to meet her musical cue, injuring herself in the process. The Infant Plaintiff, by her father, and her father as an Individual Plaintiff, commenced this action alleging that the Defendants negligently caused her injuries. The Defendants moved for summary judgment, dismissing the complaint, and Plaintiffs cross-moved for summary judgment on the issue of liability. The trial court granted the Defendants’ motion and denied the Plaintiffs’ cross-motion. Plaintiffs appealed. Upon appeal, the appellate court reversed the lower court’s findings with respect to the Defendants but affirmed the lower court’s findings with respect to the Plaintiffs.
In reversing the lower court’s findings with respect to the Defendants, the Second Department found that the Defendants had failed to establish, prima facie, that the doctrine of “primary assumption of risk” barred the Plaintiffs’ recovery and also failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law regarding the premises liability theory of negligence. The appellate court noted that the issue of whether a dangerous condition is open and obvious, important for an assumption of risk analysis, is fact-specific and usually a question of fact for a jury. The appellate court went on to acknowledge that the surroundings of a hazard must be considered because a hazard that is “ordinarily apparent” to a reasonable person may be “rendered a trap for the unwary” where the hazard is obscured. Citing Shermazanova v. Amerihealth Med., P.C., 173 A.D.3d 796, 797 (2nd Dept. 2019). It was the appellate court’s opinion that the Defendants had submitted evidence which revealed a triable issue of fact as to whether the anchor on the stage, covered by stage curtains, constituted a “concealed” hazard. Here, the Defendants failed to meet their prima facie burden of establishing, as a matter of law, that the anchor was an open and obvious hazard that the Infant Plaintiff should have seen and reacted to appropriately. Accordingly, the lower court’s determination as to the Defendants was reversed.
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