Security Guard’s Injury Action Docked By Older Safety Standards (NY)

In Schmidt v. One New York Plaza Co. LLC, the Appellate Division, First Department reaffirmed that in order to find a building owner liable for violations of building safety standards, a plaintiff must show violation of specific standards in existence at the time the building was built — and not at the time of the loss.

Plaintiff was assigned as a security guard at New York Plaza with his bomb-sniffing dog on the day of his accident. He was charged with inspecting trucks as they sought entry to the loading dock at the premises. Plaintiff was walking down the service ramp with his dog when a delivery person was ascending the ramp. Plaintiff took a step that came down on the outer edge of the ramp, causing him to lose his balance and fall backward off the ramp.

In support of its motion for summary judgment, defendant building owner submitted an expert architect’s report which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard. More specifically, defendant’s expert opined that neither the Building Code nor OSHA contained sections specifically applicable to the instant facts. In opposition, plaintiff stated that its expert would testify that the ramp was defective and in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and was in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendant’s motion on the grounds that its expert, while addressing the New York City Building Code and Occupational Safety and Health Administration (OSHA) regulations, failed to address other types of industry-wide standards that might be applicable. However, the Appellate Division, First Department reversed, holding that plaintiff failed to raise a triable issue of fact to defeat summary judgment as to a violation of any industry-wide standard at the time of construction. Plaintiff’s expert failed to “offer concrete proof of the existence of the relied upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted in the relevant industry at the relevant time.”

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information.

Court Rules Against Homeowners For Staircase Fall (NY)

In Lee v Acevedo the plaintiff fell backwards down a basement staircase inside the defendants’ home. The plaintiff testified at a deposition that she was standing on a landing at the top of the staircase, attempting to close a bedroom door that opened onto the landing and she fell after she stepped backwards and her foot did not step on the landing. The plaintiff further testified that there were no handrails to grab onto to prevent her fall.

The plaintiff filed a lawsuit alleging that the size and the configuration of the landing at the top of the basement staircase constituted a dangerous condition since there was insufficient room to safely close the bedroom door. The plaintiff also alleged that the defendants were negligent in failing to provide a handrail on either side of the staircase.

The defendants moved for summary judgment dismissing the complaint, arguing that a dangerous condition did not exist and that, in any event, the negligence alleged in the complaint was not a proximate cause of the accident. Suffolk County Supreme Court granted the defendants’ summary judgment motion, but on appeal, the Appellate Division reversed.

The Appellate Court’s decision reaffirmed the duty owed by a landowner, holding that a landowner has a duty to maintain his or her property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” However, an owner “has no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous.”

Applying this standard, the court found that the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The decision finds that the deposition testimony failed to eliminate all issues of fact as to whether the conditions alleged in the complaint were inherently dangerous.

Also, the court ruled against the defendants on their proximate issue argument. The court found that the plaintiff’s testimony that she reached out to grab something as she was falling, but there was nothing to grab onto, demonstrated that an issue of fact exists as to whether the absence of a handrail was a proximate cause of her injury.

Interestingly, the court implied it expected other proof to be submitted, such as an expert report, perhaps due to plaintiff’s argument that the size and configuration of the landing created the unsafe condition.  

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

Release Bars Dumbbell Injury at Health Club (NJ)

In Pulice v. Green Brook Sports & Fitness, New Jersey’s Appellate Division addressed whether plaintiff’s signed waiver released a health club from liability for injuries she suffered while exercising at the club.

When plaintiff first joined the health club, she signed a waiver and release stating: “Members and member’s guests shall hold the club harmless from any cost, claim, injury, damage or liability incurred at the club . . . Members shall be responsible for any property damage or personal injury caused them, their family or their guests.” Soon after, plaintiff was injured at the health club when a ten-pound dumbbell fell on her face as her trainer (whom she hired through the health club) was handing it to her to perform an exercise.

Plaintiff later sued the health club alleging negligence. Plaintiff opposed the health club’s motion for summary judgment, arguing that the waiver and release was ambiguous and therefore the defendant was not shielded from liability. The trial court ruled in favor of the health club—holding that the waiver and release was not ambiguous because it clearly stated that the health club members were responsible for personal injuries that were sustained at the club. The trial court also recognized the “positive social value” in allowing health clubs to limit their liability in respect of patrons who wish to assume the risk of participation in activities that could cause an injury.

On appeal, the Appellate Division affirmed the trial court’s decision granting summary judgment in favor of the health club. The Appellate Division found that the trial court’s decision was sound because plaintiff’s injury was the result of exercising with weights and that there was an inherent risk of being seriously injured while engaging in strenuous physical exercise.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Bones in Fish not like Frog in the Soda Can (NY)

The media loves to report on stories involving dead animals or weird objects found in food, like a frog in a can of soda or a finger in a frozen custard container.  In New York, the standard for recovery in such a case involves the “reasonable expectation doctrine,” which provides that a plaintiff can recover for breach of the implied warranty of fitness if it is found that the natural substance was not reasonably anticipated to be in the food as served.

In Amiano v. Greenwich Village Fish Co.,  the plaintiff was at a seafood restaurant and was eating a filet of flounder when she choked on a fish bone. She sued the restaurant for damages for the injuries she allegedly sustained.  The restaurant moved for summary judgment under the reasonable expectation doctrine arguing that bones are to be reasonably expected in fish, even if filleted. But the trial court denied the motion by the restaurant, finding a question of fact as to whether the fish was filleted properly and as to the size of the bone the plaintiff choked on. Furthermore, the court found the question of whether the plaintiff herself failed to take care in eating the fish was a question for the jury.

The defendant restaurant appealed, and the First Department reversed the trial court decision and awarded summary judgment to the restaurant. The appellate court held that Plaintiff’s negligence claim should have been dismissed under the “reasonable expectation” doctrine, since the nearly one-inch bone on which she choked was not a “harmful substance” that a consumer “would not ordinarily anticipate” when eating fish.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.

Unavoidable Accident or Negligence… Only the Jury Knows For Sure (NY)

A New York court recently fleshed out the concept of an unavoidable accident in a motor vehicle accident case in which the plaintiff sought summary judgment. The claim in Wood v. Deschamps arose out of a winter storm related motor vehicle accident. By all accounts, the plaintiff was entirely blameless in the accident. She had been proceeding at a reasonable speed, well below the posted limit, and within her lane of travel when the defendant’s vehicle fishtailed and entered her lane of travel. It had been snowing for some time with about 1.5″ accumulation on the ground.

The defendant had been traveling somewhat under the speed limit, in light of the weather conditions, but lost control of her vehicle as she rounded a bend. She agreed that the accident occurred quickly after she entered the plaintiff’s lane.

The defense fought plaintiff’s partial summary judgment motion on the issue of liability arguing that the emergency doctrine or unavoidable accident theory applied. The Court declined to extend the “emergency doctrine” to this situation finding that there had not been a sudden and unexpected event. Although the accident was certainly sudden, the factors leading up to it were not.  The defendant admittedly knew that it was snowing and that the roads were slick as she continued on her journey.

However, the Court found that a jury could conclude that the collision was an unavoidable accident if neither party was negligent. In this case, the plaintiff was clearly free from fault as she drove at a reasonable speed and maintained control of her vehicle when she was struck by a vehicle that fishtailed into her path of travel. Similarly, the Court found that a jury could find the defendant blameless if they believed that she was traveling in a reasonable and prudent manner given the weather conditions and that her loss of control was beyond her control.

Thanks to Christopher Gioia for his contribution.

For more information, contact Denise Fontana Ricci at


Ski Shop Prevails in Battle of Meteorologists (NY)

In Griguts v. Alpin Haus Ski Shop, Inc. plaintiff fractured her left wrist after she slipped and fell on snow and ice while walking on the sidewalk in a strip mall owned by defendant Alpin Haus Ski Shop, Inc. and sued claiming that the defendant did not maintain the premises in a reasonably safe condition.

The lower court granted defendant summary judgment on the “storm in progress doctrine.”  Although a landowner has a duty to maintain their premises in a reasonably safe condition, a landowner “has no duty to remedy a dangerous condition resulting from a storm while [that] storm is in progress and has a reasonable amount of time after the storm has ended to take corrective action.”

On appeal, the ski shop relied on the affidavit and report of its expert meteorologist with weather data that concluded the snow accumulation, “combined with very cold ground and air temperatures, caused very slippery, dangerous and icy surfaces to develop when compacted down.” The Appellate Division, Third Department, held that this evidence was sufficient to satisfy defendant’s initial burden of establishing that plaintiff sustained her injury as a result of a dangerous condition created by the ongoing winter storm.

Plaintiff had her own expert meteorologist who had testified he observed untreated patches of black ice on the sidewalk where plaintiff fell and that he himself had slipped; however, the expert acknowledged that he did not know when or how the ice patches had formed. He opined that the untreated patches of black ice observed by the witness were the result of several days of melting and refreezing.

Ultimately, the Court held plaintiff’s own deposition testimony established that she had visited the plaza in the week before her fall — and after the earlier snow event — and had not observed any snow or ice conditions on the sidewalk or in the parking lot and her fall was due to the recently fallen snow. Thus, plaintiff’s submissions were insufficient to defeat defendant’s motion for summary judgment dismissing the complaint.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono if you would like more information

Prior Accidents Admissible In School Gate Mishap (NY)

In Martin v Our Lady of Wisdom Regional Sch. New York’s  Appellate Division addressed the discretion of a trial court to allowing evidence of prior accidents to establish a party’s negligence.

In April 2009, when the plaintiff was an eighth-grade student at Our Lady of Wisdom Regional School, he and another student were assigned, without supervision, the task of closing a sliding gate to the school parking lot. When the plaintiff hung on the gate as it slid closed, a wheel mechanism at the top of the gate severed the tips of two fingers.

At a trial, the Suffolk County Supreme Court permitted testimony, over the school’s objection, from a retired school nurse detailing other accidents involving the gate, and the jury found the defendants 100% at fault in the happening of the accident. A $600,000 judgment was entered in favor of the plaintiff.

The defendant appealed, arguing that the trial court erred in allowing evidence of the prior accidents. The Appellate Division’s decision addresses situations when proof of prior accidents is admissible and affirmed the decision holding that proof of a prior accident “is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same.”

The Appellate Court noted that the plaintiff presented evidence that three other children had injured their hands in accidents involving the gate, which was not significantly altered between the occurrence of those accidents and the plaintiff’s accident. As such, the Court found that the evidence was shown to be reliable and probative on the issues of dangerousness and prior notice, and the Supreme Court did not improvidently exercise its discretion in admitting it.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

“Child’s Play”: Second Department Upholds Defendants’ SJ in After School Accident (NY)

There is an old adage that, “hard cases make bad law.”  But, the reverse is also true, bad law makes hard cases.  On occasion the Court is swayed, or at least influenced, by tertiary, extra-legal considerations.  One of the more prevalent considerations is undue sympathy towards a child claimant.  Whereas the law recognizes certain legal distinctions in regards to a child’s course of conduct and prosecution of a lawsuit, the sympathy-factor of an infant plaintiff can color the determination of fact.

In Grigorian v. City of NY, NY Slip Op 04102, the Second Department affirmed the lower court’s granting of summary judgment in favor of defendants despite injuries sustained by an infant plaintiff.

The infant plaintiff Robert Grigorian slipped and fell off a snow mound.  On the day of the accident, the infant plaintiff was released from school at 3:00 P.M., and went home.  He returned to the school at 5:00 p.m. to pick up his younger sister from an after-school program.  The two began to walk home and has they were walking, they passed a snow mound, located between the infant plaintiff’s school and sister’s school on a street that was closed to traffic and used as a parking lot for teacher.  The sister climbed up the snow mound and the infant plaintiff climbed up the mound to retrieve her.  He slipped and fell in so doing, injuring himself.

The Appellate Division held that the City defendants established their entitlement to summary judgment, because the infant plaintiff and his sister passed out of the “orbit of the authority” of their respective schools at the time of the incident and the schools no longer had control over them.   Further, the area where the incident occurred was maintained in a reasonably safe condition and the snow mound did not constitute a dangerous condition.

In the case, the Court was able to separate liability and sympathy in its analysis as to issues of fact and theories of liability.  Plaintiff attorneys will often attempt to use the fact that the plaintiff is a child as leverage in negotiations, confounding liability and potential damages.  There are times, when such extra-legal considerations should be factored into the defense of the matter — making SJ motion practice critical.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

MSJ Denied, Largely Due to (Missing) Easement Exhibit (NY)

A key factor in determining whether a party is liable in a trip and fall accident is the ownership, occupancy, control or special use of the subject property. Generally, the testimony of someone with personal knowledge  that the property is not under their control or used for any special purpose is sufficient to support a motion for summary judgment on a defendants’ behalf.

In Turano v. Two Hillside Avenue Realty Corp., 2017 NY Slip Op 04313 (2d Dept. 2017), plaintiff tripped and fell in the parking lot of a commercial building.  The building is comprised of eight apartments which are individually owned. Each owner also owns the parking spot nearest to their respective unit. Plaintiff commenced the action against all eight unit owners and the overall property owner who maintains the common areas of the premises.

One of the defendant unit owners moved for summary judgment stating that they did not have a duty to plaintiff due to the fact that the incident occurred on the common portions of the parking lot wherein they do not have a duty to maintain. The Court upheld the lower court’s decision which denied the property owners motion.

The Court held that despite the testimony and affidavit of the homeowner the deed referred to a “Declaration of Common Driveway Easement and Restrictive Covenant.” The Court held that without any information or testimony about the easement and covenant a question of fact remained as to whether the property owner made special use, through an easement or covenant of the portion of the property at issue.

This decision emphasizes how each potential factor for liability on the part of a defendant should be addressed in making a dispositive motion and that any stone left unturned could result in a denial of a motion, despite how strong the other evidence may be.  One assumes the defendant will opt to re-move, with the easement as an additional exhibit — unless the Court denies leave to re-move.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Put Me in Coach – But Only on a Regulation Field (NY)

In Legac v South Glens Falls Cent. Sch. Dist, the Third Department recently held that the assumption of risk doctrine can apply even in atypical sporting situations.

In March of 2015, 5 year-old Mathew Legac was struck in the face by a baseball while fielding ground balls during try-outs for his school’s junior varsity baseball team. Because of rain, the JV coach, defendant Edward Potter, held the multi-day tryouts in the high school’s gymnasium. Legac argued that because the tryouts were held indoors, as opposed to a normal baseball field, the school created an unusual and unsafe condition for students to play the sport. Defendants moved for summary judgment on the basis that Legac assumed the risk of being struck by a baseball during tryouts. The trial court found that plaintiffs raised a triable issue of fact, and denied summary judgment. Defendants appealed.

On appeal, the Third Department began by explaining the common law doctrine of the assumption of the risk. In New York, when a participant engages in a sport or recreational activity and is aware of the risks, he or she consents to the “commonly appreciated risks” that are inherent in the activity. By extension, the participant “negates any duty on the part of the defendant to safeguard him or her from th[ose] risk[s].” As baseball is a common activity with inherent risks, the Court’s focus was solely on whether Legac was sufficiently aware of those risks such that the doctrine would apply. While awareness of the risk is assessed on a case-by-case basis, taking the skill and experience of the participant into account, the Court explained that where the “risks of the activity are fully comprehended or perfectly obvious,” the consenting participant will be deemed to have assumed that risk.

Legac testified that he began playing baseball approximately ten years prior, had fielded multiple ground balls during that time, and was aware that baseballs commonly make unexpected hops on the ground.  Overall, it was uncontested that Legac was far from a rookie, despite his age. Accordingly, the Court focused on whether the conditions of the gymnasium, which differed from traditional baseball fields, changed conditions such that Legac’s experience did not help him appreciate the particular risks at issue. Legac argued that a smooth gymnasium floor allowed ground balls to maintain greater speeds than would be possible on grass. Moreover, Legac hired a “baseball expert” who opined that the school made the drill more unsafe by allowing the hitter – the coach – to use an aluminum bat to hit ground balls across the gymnasium, which was only 48 feet away from Legac. The expert explained that on a regulation field, the fielder closest to the batter (besides the catcher) is the pitcher, who stands 60’ 6” away. Accordingly, these unrealistic and unfamiliar conditions negated Legac’s baseball experience, and therefore made it impossible for him to appreciate and ultimately assume the risk.

A majority of the Court held that, although these particular conditions may have varied from Legac’s prior experience, Legac could still be deemed to assume the risk. Critically, Legac testified that he had the opportunity to observe other participants field ground balls just moments before he was called into the drill. Moreover, Legac had the opportunity to interact with ground balls during the first several days of the multi-day tryout. Accordingly, the Court reversed the trial court and held that Legac assumed the risk of injury and his complaint must be dismissed.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.