Premises Pointers - Volume VIII, No. 3

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:

Greetings on this last unofficial weekend of the summer! If you are like me (and many lawyers and employees here at the firm), it’s a busy time getting the younger kids ready for school after Labor Day and the bigger ones moved to college. Feels like mine just came home and now they are gone already, except for the youngest who starts his junior year of high school next week. Hopefully, back to school goes smoothly for all!

Last month, while at the Federation of Defense and Corporate Counsel meeting in Toronto I was elected to the Board of Directors, which is really an honor. For those of you who would like more information about the FDCC, let me know. I would be happy to chat with you about how truly beneficial this organization is for both defense attorneys and insurance industry folks.

In firm news, we are excited to announce that more than half of our lawyers were selected by Best Lawyers and Super Lawyers this month based on peer feedback. 30 lawyers were recognized by The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America and 34 lawyers were named to the Upstate New York Super Lawyers and Rising Stars lists. We are very proud of our attorneys and the many new faces from our firm this year that were honored. You may recognize many of our Premises Pointers columnists on these lists as well! We are also happy to welcome attorney Kaitlin Sines back to the Premises Pointers team after her maternity leave!

I hope you enjoy the rest of your summer and the long holiday weekend!

-Jody
 

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 emm@hurwitzfine.com 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 following cases both involve slip and falls—one due to an empty basket holder at a retail store and the other due to an alleged slippery floor that was inherent to the facility where the accident happened. One defendant (Target) prevailed on summary judgment and the other one (Kraft) did not. The first case was based on a no notice argument and in the second case, the defendant, who could not claim no notice, argued that the floor at issue was not inherently dangerous.
 
08/22/2024        Vicente v. Target Corporation
United States District Court, Eastern District of New York
Summary judgment granted based on plaintiff’s failure to meet her burden of proof by establishing notice to Target of the condition.

While shopping at Target, the plaintiff walked into an empty basket holder placed against a pillar in an aisle. She fell and dropped her phone but did not tell anyone at Target about the incident. Instead, she proceeded to complete her shopping and make her purchases. Defendant argues that it is entitled to summary judgment because plaintiff cannot establish that defendant breached a duty that it owed to her. Since the case is in Federal Court, the defendant can point to the plaintiff’s lack of proof to support her claim.  As such, defendant argued that: (1) because the basket holder was open and obvious and not inherently dangerous as a matter of law, defendant did not have a duty to protect plaintiff or warn her of its existence; and (2) defendant did not breach its duty to plaintiff because it did not create a hazardous condition or have actual or constructive notice of the existence of any such hazardous condition. Plaintiff argued that there are questions of fact as to whether: (1) the basket holder was both open and obvious and inherently dangerous, and (2) defendant created or had notice of a hazardous condition.
 
The Court ruled as follows:

1. In view of the outstanding factual disputes as to whether the basket holder was plainly visible given its similarity, or lack of similarity, in color to the pillar and whether plaintiff was distracted by her phone and the displays on nearby shelves, the Court cannot determine that it was an open and obvious condition as a matter of law.
2. To survive summary judgment, plaintiff must produce evidence that the empty basket holder was “visible and apparent” and existed “for a sufficient length of time prior to the accident” to permit defendant to discover and remedy it.
3. Plaintiff did not produce evidence sufficient to create genuine disputes of fact as to whether defendant created a hazardous condition or had actual or constructive notice of its existence. Accordingly, the court granted defendant's motion for summary judgment. 

08/21/2024       Farruggio v. Kraft Heinz Food Company
United States District Court, Northern District of New York
Defendant Kraft’ s motion was denied on the grounds it could not be established as a matter of law that the floor was not inherently dangerous.

The plaintiff, who was a contractor responsible for selling coding machines to Kraft, was visiting a Kraft facility to assist with several new machines. To access the room where the machines were located, he had to access an area of the facility that contains a barrel that pumps Whisper V, a liquid cleaning agent, onto the floor. Whisper V is used to coat the bottom and sides of shoes to remove any microbes or dirt. As a result, the vestibule's floor is “always wet by design” with Whisper V, and also with soap and water tracked in from the cleaning process. Plaintiff went in and out of the vestibule at least six times and acknowledged that the facility's floors were wet. Plaintiff asserts that Kraft required him, as an outside contractor, to wear rubber booties over his shoes to protect against food contamination.  According to plaintiff, these booties “were not slip resistant and seemed to make the slip resistant floor slippery.” Plaintiff ultimately slipped and fell while working when he reached for a tool. The court denied Kraft’s motion on several grounds. First, the court ruled that Kraft did not establish the condition was open and obvious. The court further ruled that Kraft did not demonstrate the floor was not inherently dangerous. Therefore, a triable issue of fact existed, and the motion was denied.

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

Hi Readers:
 
It feels good to be back writing for Premises Pointers.  While maternity leave was too short, (don’t all moms say that?), it is certainly nice to be flexing my mental muscle again. This month, I will be filling in for Marc Schulz and writing about homeowner liability. As we always say, feel free to call or email if you would like to chat about this case and/or a similar problem you may be facing.
 
8/21/2024       Punina v. Canaday
Second Department

This was an appeal by the plaintiff from an Order of the Supreme Court, Queens County, granting the defendants’ motion for summary judgment and dismissing the plaintiff’s complaint.  The plaintiff was allegedly injured when he fell from a 16–foot ladder situated on top of a scaffold, both of which were provided by his employer and set up at his employer’s direction. As a result, he commenced an action against the defendants, the Canadays, who owned the dwelling where the plaintiff was working at the time of his injury, and an architect hired by the Canadays. The plaintiff alleged violations of various sections of New York State’s Labor Law as well as common-law negligence.  The defendants moved for summary judgment and the trial court granted their motion. Affirmed on appeal.
 
Of note from the decision is the reiteration of the following well-established principle: “When a plaintiff is injured at a worksite because of dangerous or defective equipment provided by the plaintiff’s own employer, ... the property owner’s liability ... depends upon whether the owner had the authority to supervise or control the work.”  Furthermore, “mere general supervisory work” at the premises, for the purpose of simply overseeing the progress of the work being done, is insufficient to establish that the property owner is one who can be held liable for any injury sustained at the worksite. 
 
Here, the Appellate Division affirmed the lower court’s finding that the defendants had established their prima facie entitlement to judgment as a matter of law, dismissing the causes of action alleging a violation of New York’s Labor Law § 200 and common-law negligence by demonstrating that the plaintiff’s employer was solely responsible for supervising the plaintiff’s work and providing the plaintiff with equipment while the defendants merely furnished the physical location, their home, for the work to be done.  In response to such showing, the plaintiff failed to raise a triable issue of fact, meaning the awarding of summary judgment, and resulting dismissal of claims, was proper.  Affirmed.

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

Hi Readers,

Happy end of summer and beginning of the school year! I, for one, am looking forward to less humidity and cooler weather (no, I am not wishing for snow!).
 
The month’s case is an interesting one from the Second Department. The Appellate Division discusses a property owner’s duties and responsibilities when a person/entity enters into a license agreement to use the owner's property, vs. a typical lease agreement.
 
8/21/2024     Russo v Old Westbury Hebrew Congregation
Appellate Division, Second Department 
A license to use an owner’s property, does not absolve the property owner of its duty to keep the premises in a reasonably safe condition unless control is relinquished.
 
Plaintiff filed suit to recover for personal injuries he allegedly sustained when he slipped and fell on ice in a parking lot owned by the defendant Old Westbury Hebrew Congregation. At the time of plaintiff’s accident, he was working on the production of a television show at the subject premises.
 
OWHC moved for summary judgment on the grounds that it was an out-of-possession landlord and did not create or have notice of the alleged dangerous condition. The Supreme Court denied OWHC’s motion, and the Appellate Division affirmed.
 
The Appellate Division held that a landowners’ duty of care is premised on the landowners’ exercise of control over the property. The agreement granting CBS Broadcasting the right to use OWHC’s parking lot on the day of the accident is a license, not a leasehold interest. Thus, the owner remains in “presumptive control over the property” and until that control is relinquished, is responsible for maintaining the premises.

School District & Municipal Liability
By: Jennifer I. Lopez [email protected]

8/28/2024          Brian Behrens, et al., appellants, v. Town of Huntington, respondent
Appellate Division, Second Department
Mystery substance or defect on gangway leading to floating docks behind fire department, which caused injuries to plaintiffs, ultimately not specific enough in notice of claim to put Town on notice of plaintiffs’ respective accidents and related causes: defects of transitory nature must be set forth with greater specificity.

The Appellate Division, Second Department, recently affirmed Suffolk County Supreme Court’s decision to dismiss a complaint pursuant to CPLR 3211(a) on the grounds that the plaintiffs’ respective notices of claim failed to comply with General Municipal Law § 50-e (2) based on its lack of specificity regarding the  location and cause of the subject accidents.

For context, the plaintiffs served separate but almost identical notices upon Defendant Town alleging that they each [and separately] were seriously injured when they slipped and fell “on the gangway to the docks behind the Halesite Fire Department leading down to the floating docks,” due to the defendant’s negligence. In the complaint, the plaintiffs alleged that they were “caused to fall to the ground as a result of defect and/or water or other substance on the gangway leading down to the floating docks behind the Halesite Fire Department.”

Defendant Town moved to dismiss the complaint, arguing in part that the notices of claim did not comply with the requirements of General Municipal Law § 50-e (2) and that it did not have prior written notice of any defect.

The Supreme Court and Appellate Division agreed that the notices of claim were not specific enough to meet General Municipal Law § 50-e (2) requirements that notices of claim set forth the nature of the claim, the time, place, and manner in which the claim arose. The purpose of these requirements, and test of sufficiency, is whether it includes ample information to enable the public entity to locate the place, fix the time, and understand the nature of the accident. This standard is heightened when the claims relate to defects in a roadway, sidewalk or similar defect, because of their transitory nature. Accordingly, such claims must be set forth with even greater specificity. Note that a court can consider testimony provided during a GML 50-h examination, or any other evidence properly before the court, to determine a motion to dismiss based on insufficiency of a notice of claim.

Here, the plaintiffs’ vague assertions that they had each fallen somewhere on the gangway leading to floating docks behind the fire department because of some obscure substance or other defect was not enough to meet the specificity required to put Defendant Town on notice of the issue that caused the plaintiffs’ respective accidents, pursuant to GML 50-e (2). Moreover, the plaintiffs’ General Municipal Law § 50-h hearing testimony did not adequately clarify the location and cause of the accidents to cure the deficiencies in the notices of claim. Rather, their testimony continued to hinder the defendant Town’s ability to conduct a prompt and meaningful investigation.

This case provides great precedent for defense counsel to defeat, at the outset of litigation through dispositive motion practice, the slew of generalized and vague claims often asserted in notices of claim. Focus on framing the defect as being transitory and thus requiring greater specificity to sufficiently put the defendant entity on notice. Hopefully other departments will follow suit in raising the standard.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
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]

Jennifer I. Lopez
[email protected]