When a high school student was attacked by another student on an athletic field owned by a school district, a claim followed under the theory that the district failed to provide adequate security and negligently left gates open to the field.  The assault allegedly occurred, at approximately 9:30 p.m., after a group of youths,who had been drinking alcohol, congregated on the field without permission.

Although the Supreme Court, Suffolk County denied the school’s summary judgment motion, the Appellate Division held that the West Islip Union Free School District made a prima facie showing of its entitlement to judgment as a matter of law.  In Weisbecker v. West Islip Union Free School District,  the court reasoned that the School District owed no special duty to the plaintiff.  It held that the mere provision of security does not give rise to a special duty of protection.  In this case, the School District established that it did not make direct assurances regarding security to the plaintiff and that he did not rely on the provision of security in deciding to congregate with others on the field.

Further, the West Islip UFSD demonstrated that the failure to lock the gates accessing the field was not a proximate cause of the plaintiff’s injuries, since the assault was not a foreseeable act.  It is well settled that a plaintiff must prove that the public entity’s negligent acts must be the proximate cause of the injury sustained as the result of a foreseeable act by a third party.  This was not established by the plaintiff.

Since neither theory advanced a triable issue of fact, the Appellate Division reversed the lower court and held the district was entitled to summary judgment.

Special thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at .

In the context of a motor vehicle accident in NY, being struck in the rear entitles a plaintiff to summary judgment, absent a “non-negligent” explanation from the rear driver.

In Sayyed v. Murray, the 2^nd Department further defined what constitutes a non-negligent explanation.  The plaintiff was operating a 2007 Lincoln, and was stopped in the left lane on the Kosciusko Bridge, which connects Queens with Brooklyn.  Defendant Murray rear-ended his vehicle.   The plaintiff’s vehicle was completely stopped at the time, and the defendant’s testimony that the plaintiff had stopped short, amid stop-and-go traffic, was insufficient to raise a triable issue of fact.

Anyone who has ever taken the Brooklyn-Queens Expressway over the Kosciusko Bridge is well aware that, due to consistently poor traffic conditions, stopping for several seconds, usually several times, is practically guaranteed.  While the Court elected not to make any snide BQE comments in its decision, it is not surprising that the defendant’s argument (i.e., stop-and-go traffic on the BQE was unforeseeable, ergo, plaintiff bears some liability) fell on deaf ears.

Now, had the defendant argued that traffic had been running smoothly on the BQE at the time of the collision, his attorney could find him or herself before the ethics committee… for soliciting perjury!

Special thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at .

When preparing an answer, we are ever-concerned with overlooking potential affirmative defenses, as failing to assert that defense may result in waiver. However, it is equally important to consider the ramifications of asserting potential defenses and to craft the affirmative defenses appropriately.

In Hollinden v. City of New York, the City of New York almost learned this lesson the hard way. There, the plaintiff alleged that she was assaulted by Dennis, a New York City police officer. The City, in its answer, denied “knowledge or information sufficient to form a belief with respect to the truth of the allegations” set forth in the paragraphs alleging that Dennis was a police officer and that he was acting within the scope of his employment. Yet, as an affirmative defense, the City asserted that “such acts as were committed by law enforcement in the employ of the City of New York in the scope of their employment were justified.”

Plaintiff moved for summary judgment on the basis that Dennis was convicted of assault and that the City’s affirmative defense constituted an admission. The Supreme Court granted the motion, but the Second Department reversed. The appellate court found that the language in the affirmative defense was expressed in conditional language that could not be construed as an admission.  The court noted that, in fact, the City denied knowledge sufficient to form a belief as to whether Dennis was acting within the scope of his employment.  Moreover, while the plaintiff sought to utilize language that was favorable to him, he refused to be bound by allegations in the answer that were not favorable.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at .