Dale San Marco was walking through a Village of Mt. Kisco-owned parking lot on her way to work in broad daylight one wintry Saturday morning in 2005, when she slipped on black ice. The source of the ice seemed to be a pile of snow that the village had created when plowing the parking lot several days earlier. The claim is that the snow melted, causing water to run-off and then re-freeze, as it is wont to do in February. The village had salted the lot one day before San Marco’s accident, but “did not employ a work crew on Saturdays and Sundays to monitor the parking lot….”

The State of New York, like all states, was cloaked with sovereign immunity at common law and could not be sued. New York now permits citizens to bring actions against municipalities, but such lawsuits are usually limited to cases where the municipality has received prior written notice of the hazard. Mt. Kisco has such a law and it says that the notice requirement applies to claims based upon the “accumulation of snow and ice.”

But the NY Court of Appeals (our highest court) has ruled in San Marco v. Village/Town of Mount Kisco (NY Court of Appeals, slip opinion No. 223, Dec. 16, 2010) that the plaintiff may continue with her lawsuit even though the municipality did not have prior written notice of the black ice that Saturday morning. Chief Judge Lippman, writing for the court, protests that “We do not hereby create a new burden on municipalities to remove all snow off-premises in order to avoid liability…” But short of having a work crew on duty 24/7 or, in fact, carting the snow off site, isn’t that just what this ruling imposes on the municipalities of NY that are already careening toward bankruptcy under the burden of the benefit packages already paid to the work crews that now need to work overtime and sit and watch ice form on the ground 24/7.

If you have any questions about this post, please contact John Mulcahy at .

Rachel Moltner, age 76, stopped in at a Starbucks on the upper east side of Manhattan one winter’s day in 2008 for a hot beverage. Her barista poured her a venti-sized, 190-degrees Fahrenheit cup of tea, double-cupped it, and put on a lid. Ms. Moltner went to a table and was wrestling the lid off in order to add sugar, when she spilled the tea onto her leg and foot. From there, things really went downhill. Ms. Moltner required a skin graft to repair the burns to her leg and, during her stay in the hospital, she developed bed sores and then fell out of bed, fracturing her sacrum and herniating a disc or two.

With visions of Stella Liebeck’s 1992 hot coffee lawsuit against McDonald’s no doubt in mind, Ms. Moltner sued Starbucks. She filed suit in state court in New York but Starbucks removed the case to federal court. The federal judge who reviewed the case dismissed it, saying that “no reasonable fact finder could conclude that the tea’s 190 F temperature took plaintiff by surprise.”

http://caselaw.findlaw.com/us-2nd-circuit/1543460.html

Four-year-old Juliet and her friend Jacob were “racing” their bicycles -with training wheels firmly in place – on a Manhattan sidewalk one day last year when Juliet bumped into an 87-year-old woman, knocking her to the ground. The injured woman filed suit againt Juliet, alleging that Juliet was negligent.

Juliet moved to dismiss the case on the ground that, as a four-year-old, she was non sui juris (incapable of negligence). The court denied her motion, ruling that Juliet’s status is a question of fact for the jury. Here then is the Manhattan parent’s nightmare. Is it not enough that Manhattan’s four-year-olds need to pass written entrance exams and sit through rigorous panel interviews just to get into pre-school — http://www.nytimes.com/2010/10/28/nyregion/28private.html?_r=1. Now in a Kafka-esque twist of fate, the only way for Juliet’s parents to defeat this case and have Juliet declared non sui juris, is to present to the court “substantial evidence regarding [Juliet’s] lack of intellegence and maturity.”

http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32892.pdf

Miguel Mojica was once convicted of driving while ability impaired. But that was in the past, and when he walked into an Enterprise Rent a Car office in Wappingers Falls, NY one day in 2006, he held a valid NY driver license. He showed the license to the Enterprise agent, who checked that the photo and the expiration date were in order, and rented him a pick-up truck. Mojica then allegedly drove the truck while intoxicated, crashing into a police car and badly injuring a police officer.

The police officer sued Enterprise. Enterprise is, of course, protected from vicarious liability as the owner of the vehicle by the Graves Amendment, which prohibits such vicarious liability for the owners of rental cars. But the plaintiff sought to recover from Enterprise on a theory that it was negligent in not doing a full background check on Mojica’s driving history.

A trial court in Dutchess County, New York, in the case of Poluzzi v. Mojica, has rejected the plaintiff’s argument, holding that the law imposes no such duty on a car rental company to investigate the driving record of its customers who proffer a valid driver license.

New York’s Second Department (covering Brooklyn, Queens, Long Island, and several counties north of the City) has issued a ruling “to discuss and clarify what a snow-removal contractor must show to establish its prima facie entitlement to summary judgment.”

The seminal case in this area of the law is Espinal v. Melville Snow Contractors, 98 NY2d 136, where New York’s highest court ruled that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.” In other words, the typical slip-and-fall plaintiff will generally not have a viable claim against the snow removal contractor. However, the court set out three exceptions to this general rule, to wit, (1) where the contractor negligently “launches a force or instrument of harm;” (2) where the plaintiff detrimentally relies on the contractor’s performance of its duties; and (3) where the contractor has entirely displaced the owner’s duty to maintain the property safely.

In Foster v. Herbert Slepoy Corp., (dediced June 22, 2010), the plaintiff slipped and fell on snow/ice in the driveway/parking lot of the building where she lived. She filed suit against the both the owner/manager and against the contractor, Kerry Clancy. The plaintiff admitted at her deposition that she did not know of Clancy’s role as the contractor nor even of Clancy’s existence before filing suit. Clancy moved for summary judgment.

The Foster court ruled that Clancy demonstrated his prima facie entitlement to summary judgment merely by coming forward with proof that the plaintiff was not a party to his contract and that he therefore owed no duty of care to the plaintiff. In other words, the contractor was not required to negate the possible applicability of the Espinal exceptions because there was nothing in the plaintiff’s complaint or bill of particulars that alleged that any of the exceptions applied. The court explained that the initial burden on the contractor in moving for summary judgment is “governed by the allegations of liability made by the plaintiff in the pleadings.” Here, once the contractor made his initial showing, the burden then shifted to the plaintiff to show that there was a question of fact as to the applicability of one of the three Espinal exceptions.

In short, the contractor contemplating summary judgment must look to the pleadings to see if an Espinal exception is addressed. If it is not, the initial burden of making out a prima facie entitlement to summary jdugment is as light as new-fallen snow.

A New York trial court has ruled in a case of first impression that Zipcar is an automobile rental/leasing company and is therefore protected from vicarious liability by the Graves Amendment.

Zipcar is a membership-based business that provides cars to its members for an hourly or daily charge pursuant to a membership contract. In Minto v. Zipcar New York, Inc., (Supreme Court, Queens County, decided June 14, 2010), one Dale Douglas was driving a vehicle pursuant to his membership in Zipcar New York. He allegedly rear-ended the plaintiff, who brought suit for personal injuries he suffered in the accident. He sued Zipcar based upon New York Vehicle and Traffic Law section 388(1), which provides that a vehicle owner is liable for injuries resulting from the negligent use or operation of the vehicle.

Zipcar moved for summary judgment, citing the Graves Amendment, which provides that an owner who rents or leases a vehicle to another “shall not be liable under the law of any State…by reason of being the owner of the vehicle……” The plaintiff, for his part, argued that Zipcar was not a rental/leasing company and was therefore not protected by the Graves Amendment.

The court ruled that Zipcar was in the business of renting/leasing vehicles, notwithstanding its membership contracts and notwithstanding its advertisements that included lines like, “You could rent a car (but that would be silly)…” Given that Zipcar is in the rental/leasing business, the court concluded that it was cloaked with the protection of the Graves Amendment and dismissed the plaintiff’s claims.

On a construction project, AWL Industries was the general contractor. They hired Cole Mechanical as a subcontractor to do some of the work. The subcontract contained a promise by Cole that it would indemnify AWL under certain circumstances. AWL also required that Cole secure a performance bond and Cole secured the bond from Nova Casualty Company. The bond contained the following language: “Surety [i.e., Nova] upon demand of Obligee [i.e., AWL] may arrange for the performance of Principal’s [i.e., Cole’s] obligation under the subcontract.”

Cole defaulted on its contract and Nova stepped in and hired Nelson Air Device Corp to complete the work. Nova also hired a consultant to oversee Nelson’s work. An employee of the consultant was injured at the job site and filed suit against AWL.

AWL commenced a third party action against Nova, with claims for contractual indemnity and failure to obtain general liability insurance for the benefit of AWL. Nova moved to dismiss the third party action, saying that it had met its obligation under the bond by arranging for Nelson to step in and finish the work.

The court denied Nova’s motion, saying that the language of the bond was ambiguous. While Nova read the word “arrange” to mean that they only had to arrange to complete the work, the court said that another reading of the bond was that Nova had to “arrange” to take on all of Cole’s responsibilities under the subcontract, including the obligation to indemnify AWL.

Now a jury will decide what is a fair reading of the bond that Nova drew up.

Posted by Georgia Stagias.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04723.htm.

In Remes v. 513 W. 26th Realty, LLC, the plaintiff was injured when she took a step backward and fell down two steps from the defendant’s lobby into a smaller room where mailboxes were located. The staircase did not have a handrail. The court held that the owner made a prima facie showing that the stairway area did not constitute a hazardous condition. The plaintiff countered that the Administrative Code requires handrails on all interior stairs that serve as an exit to the building. This argument failed because the court found that the subject stairs did not serve as an exit. Thus, photographs of the staircase, coupled with deposition testimony that establishes (1) no prior similar incidents had occurred; and (2) lights illuminated the stairs is sufficient to establish entitlement to summary judgment.

http://www.nycourts.gov/reporter/3dseries/2010/2010_04520.htm

Posted by Bill Kirrane.

Hip-hop artist Remy K. Smith has cultivated a persona often described as violent and anti-social. But it seems that even violent, anti-social hip-hop artists apparently crave the attention of a good birthday party in their honor. Remy invited plaintiff Makeda Barnes-Joseph to the party and then allegedly proceeded to shoot her guest, thus solidifying her reputation. The plaintiff filed suit against not just Remy but, in addition, against Universal Music Group, claiming that they negligently promoted Remy’s violent persona for profit but took no steps to prevent her from shooting people. The court rejected the claim against Universal Music on the narrow ground that Universal did not emply Remy (they just had a recording contract with her) and that, in any event, their relationship had ended before the rousing birthday party. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04041.htm.

Posted by Georgia Stagias

Plaintiff James Sinkaus was standing on a ramp at a work site. His co-workers were pushing some sort of cart up the ramp and the cart rolled over the plaintiff’s foot. The plaintiff filed a claim under Labor Law 240, claiming that this was a gravity-related accident.

The court rejected the plaintif’s claim, pointing out that the cart was going up and, of course, gravity operates in the opposite direction.

If you have any questions about this topic, please contact Georgia Stagias at

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01885.htm