Premises Pointers - Volume VIII, No. 4

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:

October signifies fall for sure, but October is also National Estate Planning Awareness Month. Many people wait until a major life event such as buying a home, having a child or selling a business to begin planning. It’s never too early, and our Trusts & Estates Attorneys Ed Robinson and Melissa Pezzino are here to guide you through every step, making the process smooth and stress-free. A few of the services they provide, include: Wills & Trusts, Power of Attorney, Health Care Proxies, Estate Tax Planning and Business Succession Planning. Ed and Melissa practice throughout New York State and are also available to answer questions – just send them an email. In our line of work as attorneys and claims professionals, it is not uncommon to field questions about wills and estates and having resources is helpful.
 
In local news, last week, I was honored to lead a panel of Western New York women business leaders at the Amherst Chamber of Commerce’s official launch of its LIFT (Leadership & Inspiration for Trailblazers) professional women’s group. LIFT is an incredible opportunity for women in Western New York to connect, collaborate, and empower one another as professionals in the business community. If you are in the Buffalo Niagara area and would like to get involved with this group, please send me an email! I am very excited about LIFT and the opportunities it provides to women in the community.
 
And lastly, for those who handle transportation and auto cases, our Transportation & Commercial Auto Attorney Brian M. Webb recently presented a detailed CLE on Article 51 of New York State’s Insurance Law. Following the CLE, Brian produced an article on the basics of Article 51’s damage restrictions. If you are interested in learning more on this topic, you can view his legal alert here. Brian would also love to hear from you if you have questions or want to run a scenario by him.

-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] 

We have a couple of interesting federal court cases this month. For those who follow Premises Pointers, you know that we often cover cases on removal. The Woolf decision this month addresses both the forum defendant rule as well as fraudulent joiner so if you are a federal court practitioner this is a good summary of both doctrines. Another federal court case, from the Second Circuit, that is worth taking note of is McCoy. This case addresses a commonly raised issue by plaintiffs in premises liability cases—an employee in the area of the dangerous condition and whether the employee’s mere presence is sufficient to demonstrate notice to the defendant.
 
 
09/11/2024      Arbit v. Costco Wholesale Corporation
Appellate Division, Second Department
While Costco’s motion for summary judgment was denied by the Supreme Court, that decision was reversed by the Second Department given the evidence of a last inspection that was submitted.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on July 2, 2018, at approximately 4:00 p.m., when she slipped and fell on food on the floor of the defendant's store. The defendant moved for summary judgment dismissing the complaint, which the Supreme Court denied. In support of its motion, the defendant submitted the deposition testimony of its employee, as well as the “Daily Floor-walk / Safety Inspection” record for the day of the incident, which demonstrated that the area in question was last inspected between 2:47 p.m. and 3:40 p.m. on the date of the accident and that no hazardous condition was found in that location. The employee testified that if he had observed any hazardous condition on the floor, he would have immediately cleaned it. In opposition, the plaintiff failed to raise a triable issue of fact. The Second Department ruled that the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
 
09/17/2024       McCoy v. The TJX Companies, Inc.
United States Court of Appeals, Second Circuit
The District Court’s decision granting the defendant’s motion for summary judgment was affirmed on appeal – significantly the Second Circuit ruled that the presence of an employee in the vicinity of the alleged condition is not enough to prove notice.

Plaintiff Teresa McCoy challenges the district court's grant of summary judgment to defendant The TJX Companies, Inc. (“TJX”). McCoy sued TJX for injuries sustained after falling off two stacked stools in a TJX store. The district court granted summary judgment to TJX, finding McCoy failed to establish a prima facie case of negligence under New York law. On appeal, McCoy argued the district court erred in concluding there was no dispute of material fact regarding TJX's notice of the hazard and in declining to impose discovery sanctions. The Second Circuit determined that McCoy failed to show TJX had actual or constructive notice of the hazard. McCoy did not provide evidence of how long the stools had been stacked before the incident occurred; did not see any TJX employees stocking merchandise in the area before or after the incident; McCoy was unable to establish when or by whom the stools had been stacked; and McCoy presented no evidence to rebut TJX's testimony that the stools had remained unstacked only 15-20 minutes before the incident. McCoy argued that the presence of a TJX security guard "close to the location of a dangerous condition is sufficient to constitute notice of the dangerous condition". However, the court disagreed with this argument. The presence of a security guard near the area was insufficient to establish notice, as the hazard was not readily visible. The district court did not abuse its discretion in denying discovery sanctions. McCoy provided no evidence that video footage of the incident existed or that TJX improperly destroyed it. The appeals court upheld the summary judgment in favor of TJX, finding no genuine dispute of material fact regarding TJX's liability for negligence.
 
09/18/2024        Woolf v. Precision Technologies LLC
United States District Court, Western District of New York
Following the removal of the lawsuit to Federal Court, a motion to remand was filed and granted. The Court had to determine whether the removing defendant  met the high burden of proving fraudulent joinder to maintain federal jurisdiction, or if the case should be remanded to state court.

A motion to remand filed by plaintiffs Vadim and Helena Woolf against defendants Precision Technologies LLC and JTEKT North America Corporation. The Woolfs filed a personal injury lawsuit in New York state court against Precision and JTEKT for injuries Vadim sustained while working as a temporary worker in Orchard Park, NY. JTEKT removed the case to federal court based on diversity jurisdiction. The main issue is whether the forum defendant rule applies, which would prevent removal if a properly joined defendant is a citizen of the forum state. Precision is a citizen of New York (the forum state), which would normally bar removal under this rule. However, a fraudulent joinder argument was raised. JTEKT argued that Precision was fraudulently joined and should be disregarded for determining removal jurisdiction JTEKT claims: the plaintiffs engaged in improper "claim splitting" by filing two similar lawsuits. Precision is just a "pass-through distributor" and should be considered a nominal party. The removing party (JTEKT) bears the heavy burden of proving fraudulent joinder by clear and convincing evidence. Fraudulent joinder can be established by showing fraud in the plaintiff's pleadings, or no possibility the plaintiff can state a claim against the non-diverse defendant in state court. It was determined that JTEKT has failed to show by clear and convincing evidence that Precision was fraudulently joined to defeat diversity jurisdiction. Because Precision is a New York citizen, the court granted Plaintiffs' motion for remand and ordered the case to be remanded to Erie County Supreme Court
 
 
09/26/2024       Aldrich v. The United States of America, 22-CV-5297
United States District Court, Southern District of New York
Question before the Court was whether a single landing step that the plaintiff fell on was inherently dangerous – questions of fact were found and defendant’s summary judgment motion was denied.

Plaintiff Bailey Aldrich slipped and fell from a single step landing at a United States post office, injuring her foot. The landing step is approximately 10.25-10.75 inches high with a 2.5 inch wide yellow edge. Defendant, the United States, moved to exclude the expert testimony of Dr. William Marletta, a safety professional, and for summary judgment in its favor. Evidence was submitted that the Post Office performs safety inspections twice per year and fire inspections four times per year and that there were no issues with the step ever flagged. The Defendant sought to exclude Plaintiff’s expert opinions claiming they consisted of impermissible legal conclusions, were based on speculative facts not in the record, due to the alleged lack of reliable principles and methods and finally there were not based on reliable principles and methods The court ultimately granted in part and denied in part the defendant's motion to exclude Dr. Marletta's testimony. While some opinions were excluded or narrowed, the court largely allowed Dr. Marletta's testimony, concluding that many of the defendant's arguments went to the weight of the evidence rather than its admissibility. In line with its decision on Plaintiff’s expert, the court denied defendant’s motion for summary judgment. Evidence that swayed the court was that the height of the step (10.25-10.75 inches) potentially departed from safety standards and building codes; plaintiff's testimony about the yellow portion of the landing feeling different and having less grip than the concrete part; and allegations that the landing was "crumbly" and worn down from trucks hitting it; conflicting testimony about whether the landing's edge was curved or squared. The case proceeded to trial based on the question of whether the single step landing was inherently dangerous.

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

Hello Subscribers,
 
After a one-month break, we pick up where we left off with CPLR 3126 discovery cases. Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading or the alternative remedy of precluding evidence should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Resolution of discovery disputes and the nature and degree of the penalty imposed under CPLR 3126 are matters within the sound discretion of the trial court, who is empowered with broad discretion in determining the appropriate sanction for spoliation of evidence.
 
A party seeking sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense. A culpable state of mind for purposes of spoliation sanction includes ordinary negligence. Remember that if the evidence is determined to have been negligently destroyed, then the party seeking spoliation sanctions must also establish that the destroyed evidence was relevant to that party’s claim or defense or risk the trier of fact denying the request for sanctions because it did not deprive plaintiff of his or her ability to prove her claims/defenses.
 
Until next issue, enjoy fall and go BILLS!
 
Marc
 
08/21/2024          Schaum v Glass Gardens, Inc.
Appellate Division, Second Department
Defendant’s failure to preserve video surveillance footage requested nearly one year after the date of the accident did not deprive plaintiff of her ability to prove her negligence claim against defendant.
 
Plaintiff was allegedly injured when she slipped and fell on a white substance she believed to be sour cream while she was shopping at defendant's supermarket. The next day, plaintiff notified defendants “to preserve any and all such video recordings” of plaintiff’s incident. Nine months later, suit was filed against defendant to recover for personal injuries. Plaintiff thereafter served defendant with a discovery demand requesting any “video surveillance … that depicts … the condition complained of as it existed 3 hours prior to the accident.” Defendants preserved 30 minutes of video footage, starting from 8 minutes before the incident. Plaintiff then served a supplemental and amended discovery demand seeking “surveillance video footage showing the condition of the aisle/location of the accident as it existed 3 hours prior to the accident.” Defendant responded that other than the previously disclosed surveillance footage, they possessed no additional video footage.
 
The trial court denied plaintiff’s motion, pursuant to CPLR 3126 to strike defendants’ answer for spoliation of evidence. The Second Department affirmed the trial court’s decision because plaintiff failed to show that the absence of video surveillance footage depicting the condition complained of as it existed three hours prior to the accident deprived her ability to prove her claim.
 

08/28/2024          Edwards v Freedom Church of Revelation
Appellate Division, Second Department 
Defendants’ not entitled to an order precluding plaintiff from offering as evidence an affidavit of a nonparty witness or, alternatively, to compel plaintiff to comply with certain additional discovery demands.
 
The trial court denied defendants’ motion, pursuant to CPLR 3126, to strike the complaint against them or, alternatively, to preclude plaintiff from offering as evidence an affidavit of a nonparty witness, or, alternatively, to compel plaintiff to comply with certain additional discovery demands.
 
Here, the Second Department affirmed the trial court’s decision because, under the totality of the circumstances, defendants failed to make a clear showing that plaintiff’s delay in identifying the nonparty witness and providing the affidavit of the nonparty witness was the result of willful and contumacious conduct or otherwise warranted dismissal or preclusion of evidence. The Court noted that, although plaintiff produced the affidavit “tardily,” she did so prior to a note of issue being filed.

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

Hi Readers,

It’s been a while! I hope the last quarter of the year is treating you well! This month’s offering consists of one case that explores two pretty interesting issues (one of which was an issue of first impression for the Second Department!). The first issue is whether photographs, standing alone, without objective measurements, can be used to meet one’s burden in establishing that a defect is not actionable and trivial in nature.  If so, how are the courts to examine photographs in order to determine whether the alleged defect is trivial? The second issue, an issue of first impression, is whether the opinion of a human factors’ expert is conclusory and speculative, and therefore inadmissible, if the opinion is not based upon objective measurements of the defect? Spoiler alert: You may want to walk around with measuring tape! Until next time!
 
09/25/2024          Kathy Snyder, et al. v. AFCO Avports Management, LLC, et al.
Appellate Division, Second Department 
The opinion of a human factors expert about an elevation differential is conclusory and inadmissible if it is not based upon an objective measurement or at least an inferable estimate of the differential. Photographs can be probative of the triviality of a defect in certain circumstances.
 
The plaintiff brought a personal injury action against the defendant property owner and others, seeking to recover damages for injuries allegedly sustained when she tripped on what she later described as “a piece of raised sidewalk,” causing her to fall and sustain injuries. The plaintiff testified that she did not see the alleged defect as she was more focused on a nearby manhole cover. After the plaintiff’s accident, a cone was placed at the location of the plaintiff’s incident and photographs of the area were taken three minutes later and then again, a few days later. Repairs were made to the sidewalk in the days following this incident before any objective measurements were made by anyone of the misleveled sidewalk slab where the accident occurred.
 
The defendants moved for summary judgment on the grounds that the defect was trivial in nature, using photographs and a human factor expert who did not rely on objective measurements of the alleged defect in forming his opinion. The human factor expert concluded that the change in elevation between the sidewalk slabs was minimal and did not constitute a trap or snare, that the condition was identifiable as to be passed over safely, that the plaintiff’s concern about the manhole cover would have increased her awareness of the sidewalk elevation change, and that had the plaintiff been more attentive, she could have negotiated the elevation change safely, as did her husband. The expert further opined that the elevation change could have been appreciated more than 10 steps away given the height differential and daytime lighting at the time. The Supreme Court granted the defendants’ motion for summary judgment dismissal. Plaintiff appealed the decision arguing that defendants failed to establish, prima facie, that the sidewalk defect was trivial as a matter of law, as the defendants failed to submit objective measurements of the alleged defect's dimensions.
 
On appeal, the Court, reasoned that in certain circumstances, photographs, even without objective measurements, can provide insight to the court as to whether a defect is trivial as long as the dimensions of the defect can be viewed near other objects of known or standard size in the photograph. The Court provided the following as examples of objects of known or standard size: a coin, a shoe, a baseball, a soda can, or other objects of uniform size. However, when reviewing the photograph in the case at hand, the Court found that the orange cone that had been placed near the accident site failed to provide the Court with the insight they needed to quantify the height differential, and the Court was unable to determine that the differential depicted was small enough be deemed trivial as a matter of law. Consequently, the Court found that the photographs were insufficient to establish defendants’ prima facie burden on their motion for summary judgment.
 
The Court next found that the expert’s opinion, without the benefit of objective measurements upon which to base his opinion, was conclusory and not probative. The Court noted that experts retained by parties to render opinions about trip defects typically provide specific measurements and cite relevant codes and standards, and that there must be data, measurements, personal observation, or testimony for an expert witness’s opinion to be informed and admissible.  The Court ultimately found that the defendants’ human factors expert report, which was not supported by objective measurements, was conclusory, speculative, and did not enable the defendants to meet their prima facie burden of establishing the triviality of the alleged sidewalk defect. Thus, the decision of the lower court was reversed and the defendants’ motion for summary judgment was denied.  

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

Dear Readers:
 
Happy belated autumn equinox. In some parts, this time is for celebrating the height of harvest and blessings of community. I extend those themes to you and hope you each reap good fortune and high spirits this season.  
 
While we’re on fall, the following case involves a student who was injured when she fell from bleachers and tried to blame the school for it but failed to timely notify the school about all her claims. More below!
 
09/25/2024          Y.P. v. City of New York
Appellate Division, Second Department
Defendant’s investigation report, limited in scope, saves it from needing to defend new claims
 
On June 17, 2019, infant plaintiff was allegedly injured when she fell off bleachers during physical education. 81 days later, the infant and her mother timely filed a notice of claim upon defendants, alleging negligent maintenance of the bleachers. On March 27, 2020 – almost one year after the incident occurred – the plaintiff served defendant with an “amended” notice of claim that added negligent supervision, but she did not seek leave of court beforehand. The plaintiff subsequently moved for leave to serve a late notice of claim alleging negligent supervision, which the Supreme Court granted.
 
The Appellate Division, Second Department, reversed the decision essentially for: 1) defendant’s lack of knowledge on the new claim; 2) plaintiff’s unreasonable delay; and 3) prejudice to defendants.  As to a lack of timely actual knowledge, interestingly, the court construed the scope of defendant’s notice of the new claim [or lack thereof] as contained within the defendant’s investigation report, which merely showed that the plaintiff was injured in a fall during physical education [facts germane to the original notice of claim] but did not relay facts related to negligent supervision [new notice of claim]. In dicta, the court emphasized that schools are not reasonably expected to continuously supervise and control all movements and activities of students.
 
As to the second and third reasons, the appellate division reasoned that the plaintiff failed to provide a reasonable excuse for delaying nearly one year in asserting a negligent supervision theory of liability; and presented no “evidence or plausible argument” that her delay in serving the notice of claim did not substantially prejudice the defense on the merits. Accordingly, the Supreme Court should have denied plaintiff’s request to serve the late notice of claim.
  
Catch you in October...

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Marc A. Schulz
[email protected]

Anastasia M. McCarthy
[email protected]

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Jennifer I. Lopez
[email protected]