Issue of Fact Precludes Assumption of Risk Summary Judgment Argument (NY)

In the matter of Lee v Brooklyn Boulders, LLC (2017 NY Slip Op 08660), the Second Department Appellate Division confronted, and further diminished, the applicability of the primary assumption of risk doctrine.

Plaintiff was allegedly injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats, which according to plaintiff, was covered by a piece of Velcro. Defendants moved for summary judgment dismissing the complaint and the plaintiff cross-moved to add a demand for punitive damages.  Defendants argument that plaintiff signed a liability release The Supreme Court, denied the motion and the cross motion and all parties appealed.

The Appellate Division found that contrary to the defendant’s contention, the release that the plaintiff signed was void under the General Obligations law because the defendant’s facility was recreational in nature and therefore did not bar the plaintiff’s claims.  The Court noted that by engaging in a sport or recreational activity, a participant consent to those commonly appreciated risk that are “inherent in” and “arise out of the nature of the sport generally and flow from such participation.”  Here however, the defendant failed to establish, prima facie, the doctrine of primary assumption of risk applied.  The plaintiff’s deposition testimony revealed triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the inured plaintiff accident involved an inherent risk of rock climbing.  Therefore, defendant’s motion was properly denied.  The Court also found that the Supreme Court providently exercised its discretion in denying the cross motion for leave to amend the complaint to add punitive damages.

This case illustrates that to the extent a party seeks to apply assumption of risk proactively in dispositive motions, the court will stridently parse the record for triable issues of fact.  While assumption of risk continues to endure in a comparative setting, its applicability on a primary basis is becoming fewer and further in-between.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Second Department Reiterates Defendants’ High Burden in Negligent Supervision Case (NY)

In K.J. v. NYC BOE., the Second Department recently discussed the high threshold required to prevail on a motion for summary judgment in a negligent supervision case.

The case arose from an incident in December of 2014, when the 14 year old plaintiff was allegedly assaulted by four fellow students in a stairwell leading to the cafeteria of Lincoln High School in Brooklyn. The plaintiff sustained various injuries, including a fractured orbital bone. Plaintiff’s father, Lonnie Jefferson, brought suit on behalf of his son, and individually, against the City of New York, the Board of Education, and the New York City Department of Education (DOE), alleging negligent supervision. The defendants moved for summary judgment, basing their motion, in part, on the plaintiffs’ 50-H hearing testimony and the deposition testimony of a school safety officer. The infant plaintiff testified that while he was in the cafeteria, one of the assailants threw an object at him. When the plaintiff went over to the assailants’ lunch table, he was challenged to a fight. The plaintiff refused to fight and returned to his lunch table without reporting the incident to any teachers. At the end of lunch, the plaintiff left the cafeteria doors and walked into the stairwell to go to his next class. The four assailants cornered the plaintiff punched and kicked him for approximately 25 seconds. Afterwards, the plaintiff found a dean who took him to the nurse’s office. There were no school safety officers, school personnel, or security cameras in the stairwell at the time of the incident.

At his deposition, the school’s safety officer testified that his duties did not include supervising the cafeteria during lunch, which was done by the deans. As a general matter, during the break between class periods, teachers stood in the hallway while the school safety officers patrolled the hallways to make sure the students were headed to class. The officer did not witness the assault, but was radioed by the dean to help to the plaintiff. He also did not know the number or identities of the students who attacked the plaintiff, although he recalled seeing at least one of the assailants in the principal’s office on a prior occasion. The officer testified that he had a supervisor who was in charge of school safety personnel in the building, but the defendants provided no evidence from that supervisor or anyone familiar with the students involved in the assault.

The Supreme Court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint, and the plaintiffs appealed. On appeal, the Second Department recited the rule that “schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” To determine whether school officials breached their duty to supervise, the first question is whether they had “sufficiently specific knowledge or notice” of the dangerous conduct. Broadly, this requires that the school have actual or constructive notice of prior similar incidents, and injuries that result from the unanticipated or impulsive actions of a student will not result in a finding of negligence.

The Second Department found that defendants failed to provide evidence showing that they lacked notice the assailant’s prior violent behavior. Further, the safety officer’s testimony regarding the disciplinary history of one of the assailants created triable issues of fact as to whether the defendants had specific knowledge of any dangerous propensities. Lastly, they failed demonstrate the general security measures at the school, including the number of school safety officers on duty, their assignments in the vicinity of the cafeteria and stairwell, or the frequency of violent incidents.

Not only did defendants fail to demonstrate their lack of notice, they also failed to eliminate all triable issues to fact as to the second critical point: whether the alleged inadequate security proximately caused the incident. To determine causation, the court must determine whether “the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence.” Here, the defendants failed to show that the incident occurred in such a short time span that even the most intense supervision could have prevented it.

Accordingly, the Second Department held that defendants failed to establish their prima facie entitlement to summary judgment as a matter of law. Interestingly, the Court noted that the trial court should have been able to reach this conclusion regardless of plaintiff’s opposition papers. Likely, this is a result of defendants’ failure to offer testimony or a sworn affidavit from anyone with knowledge of the incident, the assailant’s past behaviors, or the school’s general security policies.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Bus Company and Municipality Dismissed from Slip & Fall Suit for Distinct Reasons(NJ)

Plaintiffs have the burden of proof when establishing the negligence of defendants.  In Frison v. A-1 Limousine et al., plaintiff appealed from two orders granting summary judgment: one in favor of Trenton Mercer Airport, Mercery County, and Mercer County Department of Transportation and Infrastructure, and one in favor of non-public entity defendants, A-1 Limousine, Inc. and Andre Williams.

Plaintiff was on a shuttle bus at Trenton Mercer County Airport, which she was taking to a remote parking lot used by the airport’s customers. The driver of the bus, defendant Andre Williams, dropped plaintiff off in an unlit area of the gravel-surfaced lot. As plaintiff exited the bus, she lost her footing and fell to the ground. Plaintiff sustained a tear in the meniscus of her left knee and fractured a bone in her right foot.  Both defendants filed a motion for summary judgment, and the trial court granted both motions. Plaintiff subsequently appealed, arguing that defendant A-1 acted unreasonably in dropping plaintiff off in a “dangerously dark portion of the gravel parking lot” and alleging that the Trenton Mercer Airport acted in a palpably unreasonable manner by not installing lights in the parking lot.

The appellate court first addressed plaintiff’s arguments with respect to the public entities.  The appellate court found that the heightened “palpably unreasonable” standard applies to dangerous conditions on public property and is intended to comport with the principles of liability used by the courts for local public entities in their capacity as landowners. Additionally, the appellate court opined that the Torts Claim Act defined a “dangerous condition” as a condition that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. Applying that standard, the court concluded that plaintiff failed to demonstrate that a “dangerous condition” existed in the parking lot. Plaintiff provided no proof that the condition was dangerous such that it presented a substantial risk of injury.

With respect to plaintiff’s claims against A-1, the court found that plaintiff failed to establish a legal basis to impose a duty of care under the circumstances presented. Plaintiff offered no proof that the vehicle’s condition caused her to fall. A-1 neither owned nor had the duty to maintain the parking lot. Additionally, plaintiff presented no proof that A-1 had notice of any condition of the lot as to implicate a duty to warn. As such, the appellate court affirmed the trial court’s decision on both motions and opined that defendants cannot be liable due to plaintiff’s failure to use due care.

Considering the lessened duty for municipalities, and the lack of any duty for the bus company, plaintiff simply fell in an unfortunate place for her to recover.   The defendants held plaintiff to her burden here, and prevailed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

3rd Dept. Refuses to Apply Primary Assumption of Risk Doctrine to Trampoline Case

In DeMarco v. DeMarco, the Third Department recently declined to apply the primary assumption of risk doctrine to jumping on a trampoline.

The case arose when the 48-year-old plaintiff was visiting the home of the defendants – her brother and sister in law – and plaintiff’s 9-year-old nephew asked her to join him on defendant’s trampoline. The plaintiff had never been on a trampoline before, but she agreed. After initially jumping in unison, the plaintiff’s nephew began “double jumping” the plaintiff, meaning he intentionally jumped out of unison with the plaintiff. This threw the plaintiff off balance, causing her land on the trampoline hard, fracturing several bones in her left foot. Plaintiff then commenced this action seeking damages from the defendants.

At trial, defendants sought a jury charge regarding primary assumption of risk. This request was denied and the court instead charged the jury regarding implied assumption of risk. The jury found in favor of the plaintiff and awarded her $220,000 for past pain and suffering and $580,000 for future pain and suffering.

On appeal, the Third Department noted that under CPLR 1411, any culpable conduct by plaintiff, including “assumption of the risk,” does not bar plaintiff’s recovery in New York. However, the Court of Appeals has held that CPLR 1411 does not prevent the primary assumption of risk doctrine from being used as a defense to tort recovery in cases involving certain sports or recreational activities.

But the Court of Appeals has also held that the assumption of risk doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation.” See Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist., 927 N.E.2d 547 (2010). In practice, this means that the doctrine is limited to situations where it is considered appropriate to absolve a parties’ duty of care, such as certain designated sporting and recreational events. See id.

Defendants acknowledged that jumping on a trampoline did not fit on the narrow list of the activities that courts had previously applied the primary assumption of risk doctrine. However, they argued that applying the doctrine to the case at bar would be in keeping with the doctrine’s underlying purpose – to facilitate free and vigorous participation in athletics. The Court was not persuaded, and held that jumping on a trampoline was not the type of socially valuable activity that the doctrine seeks to encourage.

Interestingly, although the defendants also raised several issues regarding the substance of the implied assumption of risk jury charge, they failed to make those specific objections at trial. Rather, they only objected to the court’s decision to charge the jury with implied assumption of risk, instead of primary assumption of risk. Because of this, the Third Department held that these issues were not preserved for appellate review. Given the incredibly narrow scope of cases to which courts will apply the primary assumption of risk doctrine, it seems defendants would have been better served by focusing their fight on the substance of the jury charge that was actually given.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Lack of Specific Defense Testimony Prompts SJ Reversal in Premises Case (NY)

In a premises liability context, a property owner must establish that they did not create a dangerous condition that allegedly caused a plaintiff’s accident and that they did not have actual or constructive notice of the condition. In recent years, Court have raised the burden of proof for defendants to establish that they did not have constructive notice of a condition.

In Lombardo v. Kimco , LLC,2017 NY Slip Op 06531 (2d Dept. 2017), plaintiff slipped and fell on a wet and slippery substance on the floor of the defendants restaurant, Carrabba’s Italian Grill, LLC. The defendants established through testimony and affidavits that they did not create the wet or slippery condition and that they had a regular inspection and cleaning procedure in place so could not have had constructive notice. The Supreme Court agreed and granted summary judgment in the defendants favor.

The Appellate Division, Second Department, overturned the decision because the defendant failed to establish that the cleaning and inspection procedure was followed on the date of the accident and when the area had last been cleaned and inspected prior to the accident.  The Court found that without specific testimony from someone who cleaned or inspected the premises prior to the accident the defendant failed to establish that they did not have constructive notice of the condition.  In other words, the existence of maintenance protocols was not enough;   the property owner needed to show that it followed those protocols.

This increased burden for a defendant poses difficulty when a defendant is trying to establish lack of constructive notice. In most instances, the lawsuit has arisen years after the accident and the person who did the inspection may no longer be employed by the defendant. It is incumbent upon defendants to get statements from their employees when they are first notified of a loss and to keep in contact with them even if they leave. If defense counsel can’t locate the former employee who actually did the cleaning or inspection, summary judgment will be an uphill battle.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Evidence of Remedial Measures Inadmissible (PA)

The Superior Court of Pennsylvania recently upheld a lower court’s judgment in favor of the defendant in  Gold v. Plesset Properties.  The case arises out of a slip and fall on July 8, 2011 when plaintiff Debra Gold slipped and fell exiting Plesset Properties Partnership’s (“PPP”) property.  Shortly after the incident, PPP installed skid-resistant adhesive strips to prevent future slipping in the area.

Gold filed a complaint against PPP alleging negligence.  On the eve of trial, PPP filed a motion to exclude any evidence at trial mentioning remedial measures to the property subsequent to the incident, such as the skid-resistant strips.  Gold filed her own motion seeking to preclude PPP’s expert testimony.  The court granted PPP’s motion and denied Gold’s.  The subsequent jury trial found PPP not negligent and Gold appealed.

Gold asserted that the trial court erred in not permitting her to cross-examine a part owner of PPP on subsequent remedial measures.  Generally, in Pennsylvania, evidence of subsequent remedial measures is not admissible to show negligence.  However, it can be admissible for impeachment, to show ownership of a property, or the feasibility of precautionary measures.  The court disagreed with Gold and found there was no basis for impeachment in the matter since the witness did not contradict himself on ownership or the existence of skid-proof strips.

Gold also argued that the court erred in denying her to cross-examine PPP’s expert on subsequent remedial measures.  The court again disagreed with Gold and found that the defense’s expert did not base any of his testimony on the remedial measures, but rather solely the video of the incident.  Gold also argued unfair surprise in that she was unaware that PPP’s expert would testify.  Again, the court denied this argument and cited that Gold was notified the expert would testify a month before trial and was provided with his report in PPP’s pre-trial report 30 days before trial.

This case demonstrates the factor of subsequent remedial measures in cases. It is important for defense counsel to keep an eye on repairs and remedial measures made by clients.  Plaintiff’s counsel will try to use this as evidence that a defendant was negligent, because “why wouldn’t they be negligent if they’re installing remedial measures?”  The rationale behind excluding evidence of subsequent remedial measures is policy-based.  In short, property owners will be less inclined to improve defects, if evidence of those improvements help a plaintiff’s case.

Evidence of such measures present a compelling, but prejudicial argument to a jury, making it all the more important that defense counsel seek to preclude such evidence, and make sure their expert relies on the pre-repair conditions in his findings.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Slippery When (possibly, maybe) Wet – Not Enough to Defeat SJ Motion (PA)

On August 15, 2017, the Superior Court of Pennsylvania affirmed summary judgment in favor of Coakley & Williams Hotel Management Company in Demisew v. Coakley & Williams Hotel  The case stems from a slip and fall at a Days Inn, managed by Coakley & Williams on October 16, 2013.  Specifically, plaintiff Gela Demisew fell down a stairwell at the Days Inn, due to an allegedly slippery step.  She alleged that Coakley & Williams were negligent in allowing this dangerous condition to persist.

In September 2015, the trial court granted summary judgment in favor of Coakley & Williams and the Plaintiff filed a timely appeal.  On appeal, the Plaintiff argued that Coakley & Williams owed her a duty, as a business invitee, to exercise reasonable care in discovering the dangerous condition.  To support her assertion, the Plaintiff alleged that Coakley & Williams only had the stairwell cleaned on a weekly or “as needed” basis.  Further, the Plaintiff asserted that it rained on the day of the accident and someone could have tracked water into the stairwell as a result.

However, the Plaintiff testified that she did not know the substance she slipped on and never revisited the accident site.  Further, the director of maintenance at the Days Inn testified that the maintenance staff walked the property twice per day including the stairwells.  The director of maintenance also noted that the stairwell was cleaned once per day and no issues were documented on the date of the accident.

Thus, the court held that the Plaintiff merely speculated at the cause of her slip and fall and did not put forth any evidence to show whether the step was slippery or that the hotel had constructive notice of the alleged dangerous condition.  Thus, the grant of summary judgment was proper.   Had plaintiff testified that she was certain she slipped on tracked in rain water, as opposed to being uncertain of what she slipped on, she may have raised an issue of fact as to defendant’s negligence.   Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

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.