In Barrera v. City of New York, an infant plaintiff sought to recover against the City for injuries allegedly sustained when she slipped and fell on cake frosting on a staircase at her elementary school. The primary basis for recovery was that the defendant was on actual and/or constructive notice of the hazardous condition because the defendant was aware of a bake sale that was taking place in the school. In upholding the lower courts decision that granted the defendant summary judgment, the Second Department noted that the defendants’ general awareness that bake-sale items might fall on the school premises was insufficient to establish constructive notice of the particular condition at issue.

Thanks to Lora Gleicher for her contribution to this submission.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02551.htm

In Santiago v. City of NY, the plaintiff was playing a game of football with his sons in a City owned park when he tripped and fell because of a depression near a park bench. In support of its motion for summary judgment, the City of NY argued that the plaintiff did not comply with the prior written notice requirement of section 7-201(c)(2) of the Administrative Code. Although there are exceptions to the rule, the City argued that it did not create the defect through an affirmative act of negligence nor was the defect caused by a special use that benefited the City. The court ruled in favor of the City and dismissed the matter.

Thanks to Ed Lomena for his contribution to this submission.

http://decisions.courts.state.ny.us/fcas/FCAS_docs/2009APR/4200129962000100SCIV.pdf

In McClean v. City of New York, a 3 month old baby sustained traumatic brain injuries while at the First Steps Family Day Care Center in 2000. The infant’s mother sued the City arguing that complaints made in 1997 and 1998 against First Steps by the City’s Adminsitraion for Children’s Services should have prevented the City’s Department of Health from relicensing the center in 1999. The City moved for summary judgment arguing that the City could not be liable for the negligent performance of a governmental function. The New York Supreme Court denied the City’s motion and the First Department affirmed holding that issues of fact existed about the City’s and State’s obligations to McLean and her daughter . The Court of Appeals, however, reversed, holding that a government agency “is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public.”

Thanks to Cheryl Fuchs for her contribution to this post.

http://www.nycourts.gov/ctapps/decisions/2009/mar09/46opn09.pdf

In the recent decision of Penn National Ins. Co. v. Costa, the New Jersey Supreme Court held that in order for an injury to arise “out of the maintenance, operation or use of a motor vehicle” there must be a substantial nexus between the injury and the allegedly negligent maintenance, operation or use of the vehicle. In Costa, the mechanic plaintiff slipped and fell on his employer’s icy driveway and struck his head on a tire jack that was being used to change a flat tire. The plaintif was not involved in the tire repair at the time of his accident. Thus, the Court found that there was no substantial nexus between the plaintiff’s injuries and the allegedly negligent maintenance of the motor vehicle. Consequently, the automobile insurance policy did not provide coverage for the claim.

Thanks to Claudia Condruz for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf