MUNICIPAL LIABILITY DEFENSES
Robert D. Kalish, Esq.
My objective is to give you a working knowledge of the law and give you an idea as to the defenses you will be confronted with.
Tonight’s discussion will consist of the following areas of law:
1 De Minimus or Trivial Defect
The City will look to the size of the defect and its character and move to dismiss whereappropriate.
2 Prior Written Notice Administrative Code 7- 201 and 7- 210
The City will look at the Big Apple Map and determine whether the defect that the Plaintiffclaims to have fallen on as depicted in the photographs is the specific defect that is markedon the map. We will look to the type of defect, location and position of the marking. The newlaw puts the liability on property owner under certain circumstances.
3 Premises Liability …notice and Abutting Landowners
In this type of case the City will be looking at a co defendant and in many cases take thesame position as the plaintiff. If the City is being sued as a property owner and not as themunicipality then these rules apply.
4 Joint and Several Liability CPLR 1601 …. Article 16
Article 16 changed the rules of joint and several liability and the 1% case.
5 Readily Observable and or Open and Obvious.
(Comparative Negligence)…Assumption of the Risk.
The City will move to dismiss where the defect was open and obvious or readily observableby the use of ones senses. In addition in the sport injury type of cases the argument is similarto assumption of the risk when the issue is the condition of the playing surface.
6 Standard of proof in MVA with emergency vehicles: (reckless v negligence)
When dealing with police and fire MVA the standard of proof that a plaintiff must establishin most cases is “recklessness” and not negligence.
The City will move to dismiss if the plaintiff was injured during a snowstorm or if asufficient period of time has not elapsed from the end of the snowstorm and the time theplaintiff fell. The new PWN law puts the obligation on the property owner to remove thesnow under certain circumstances.
The City will move where appropriate to dismiss or preclude certain issues in the tortlitigation where prior administrative determinations were made.
9 Spontaneous Acts …Board of Education
The City will move to dismiss where the injury was as a result of a spontaneous act by onestudent against another.
The GML sets forth what a fire or police person must establish in order to sue a municipalityfor injuries sustained in the line of duty. We will look to see if the requisite predicate hasbeen alleged.
If the cause of the plaintiff’s injuries was as a result of a governmental function such as lackof police protection etc we will move to dismiss if there was no special duty.
Workers compensation is an absolute bar.
. De Minimus or Trivial Defect
In Trincere v. County of Suffolk , 90 N.Y.2d 976 (1997) the Court of Appeals said there is “nominimal dimension test” or a per se rule that a defect must be of a certain minimum height or depthin order to be actionable. Although generally a question of fact for a jury, the court said not everyinjury allegedly caused by an elevated brick or slab need be submitted to a jury. The court consideredthe width, depth, elevation, irregularity and appearance of the defect along with the time, place andcircumstance of the injury. In this case P was coming up from parking area and stumbled on ½ inchelevation during the day.
Note: ½ inch elevation not actionable
In Thomas v. City of New York, 301 AD2d 387 (2003) the City's motion for summary judgmentdismissing the complaint, was affirmed. The court in reviewing the City's photographs of the allegeddefect, and the City investigator's report and accompanying affidavit, determined that the defectalleged to have caused plaintiff's injury was a metal grating barely raised above the adjacent publicsidewalk. The court said, although there is no "minimal dimension test," in the absence of othercontributing factors, the differential in height between the alleged defect and the sidewalk may "loomlarge" in determining whether the defect poses a hazard of sufficient magnitude to be actionable (seeTrincere v County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489). In addition thecourt said inasmuch as plaintiff, in response to defendant's prima facie showing of entitlement tojudgment as a matter of law, failed to adduce evidence sufficient to raise a triable issue as to whetherthe alleged defect, although small, nonetheless possessed the characteristics of a trap or snare or wasotherwise actionable, the motions for summary judgment dismissing the complaint were properlygranted (see Alonso v New York City Tr. Auth., A.D.2d , 748 N.Y.S.2d 498; Zaritsky v City ofNew York, 248 A.D.2d 211, 669 N.Y.S.2d 818).
In Luz Gaud v. Julia Corsby Markham, 307 A.D.2d 845( 2003) the plaintiff was injured when shelost her footing on a concrete stairway landing at the entrance to the defendant owner's building. Shefell after stepping into a defective area on the surface of the landing, where the top layer of concretehad been scraped off. The defective area was substantially less than an inch deep, and covered anarea approximately one foot long and four or five inches across. In her affidavit supporting heropposition to the summary judgment motion, she disclaimed her prior testimony that she had slippedon granular material collected in the defective area. Instead, she averred that she was caused to tripand fall when her foot got stuck in the defective area. The court held that the owner was entitled tosummary judgment. The height differential of less than an inch between the defective area and therest of the landing was trivial, and the plaintiff did not present any evidence to show that the defectpresented a significant hazard, notwithstanding its minimal dimension, by reason of location, adverseweather or lighting conditions, or other circumstances giving it the characteristics of a trap or snare.The defect to which plaintiff now attributes the accident - the height differential of less than an inchbetween the defective area and the rest of the landing - was trivial, and plaintiff has not presentedany evidence to show that such defect presented a significant hazard, notwithstanding its minimaldimension, by reason of location, adverse weather or lighting conditions, or other circumstancesgiving it the characteristics of a trap or snare (see Trincere v County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489;Belmonte v Metropolitan Life Ins. Co., 304 A.D.2d 471,759 N.Y.S.2d 38, 41; Menendez v Dobra, 301 A.D.2d 453, 753 N.Y.S.2d 366; Thomas v City ofNew York,301 A.D.2d 387, 753 N.Y.S.2d 468; Alonso v New York City Tr. Auth., 298 A.D.2d 311,748 N.Y.S.2d 498).
Note: In summary, defective conditions, caused by ridges, slight differences in elevation, andshallow holes, depressions, breaks, cracks, inequalities inherent in construction, or elevationsgenerally, have been considered so slight or trivial that they are not actionable and therefore, noquestion of fact exists for determination by a jury.
2 Prior Written Notice [Administrative Code 7- 201 and now Administrative Code 7- 210 ]
In order to sue the City of New York P must either show
1.PWN, or
2.that the municipality Caused and Created the condition or
3.where a special use confers a Special Benefit upon the municipality
I will discuss points 1 and 3. I will not discuss cause and create because it is an area that is verymuch in flux. I will say you need to show more than the City built it (street) or at one time repairedit (defect developed)
§ 7-201 Actions against the City. a. In every action or special proceeding prosecuted or maintainedagainst the city, the complaint or necessary moving papers shall contain an allegation that at leastthirty days have elapsed since the demand, claim or claims, upon which such action or specialproceeding is founded, were presented to the comptroller for adjustment, and that the comptrollerhas neglected or refused to make an adjustment or payment thereof for thirty days after suchpresentment, except that in every action or special proceeding in relation to excise or non-propertytaxes, such complaint or necessary moving papers shall contain an allegation that such demand,claim or claims upon which the action or special proceeding is founded, were presented to thecommissioner of finance for adjustment and that the commissioner has neglected or refused to makean adjustment or payment thereof for thirty days after such presentment. b. An action against the city,for damages for injuries to real or personal property, or for the destruction thereof, alleged to havebeen sustained by reason of the negligence of, or by the creation or maintenance of a nuisance by thecity, or any agency thereof, shall be commenced within one year after the cause of action thereforshall have accrued, provided that a notice of the intention to commence such action and of the timewhen and place where the damages were incurred or sustained, together with a verified statementshowing in detail the property alleged to have been damaged or destroyed, and the value thereof,shall have been filed with the comptroller within six months after such cause of action shall haveaccrued. c. 1. As used in this subdivision: (a) The term "street" shall include the curbstone, anavenue, underpass, road, alley, lane, boulevard, concourse, parkway, road or path within a park, parkapproach, driveway, thoroughfare, public way, public square, public place, and public parking area.(b) The term "sidewalk" shall include a boardwalk, underpass, pedestrian walk or path, step andstairway. (c) The term "bridge" shall include a viaduct and an overpass. 2. No civil action shall bemaintained against the city for damage to property or injury to person or death sustained inconsequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part orportion of any of the foregoing including any encumbrances thereon or attachments thereto, beingout of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective,unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportationor any person or department authorized by the commissioner to receive such notice, or where therewas previous injury to person or property as a result of the existence of the defective, unsafe,dangerous or obstructed condition, and written notice thereof was given to a city agency, or there waswritten acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition,and there was a failure or neglect within fifteen days after the receipt of such notice to repair orremove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.3. The commissioner of transportation shall keep an indexed record in a separate book of all writtennotices which the city receives and acknowledgement of which the city gives of the existence of suchdefective, unsafe, dangerous or obstructed conditions, which record shall state the date of receipt ofeach such notice, the nature and location of the condition stated to exist and the name and addressof the person from whom the notice is received. This record shall be a public record. The record ofeach notice shall be maintained in the department of transportation for a period of three years afterthe date on which it is received and shall be preserved in the municipal archives for a period of notless than ten years. 4. Written acknowledgement shall be given by the department of transportationof all notices received by it.
New Law
Administrative Code 7-210 effective Sept 14, 2003
§ 7-210 Liability of real property owner for failure to maintain sidewalk in a reasonably safecondition.
a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limitedto, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safecondition.
b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure ofsuch owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.
c. Notwithstanding any other provision of law, the city shall not be liable for any injury toproperty or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two- or three-family residential real property thatis (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes)in a reasonably safe condition. This subdivision shall not be construed to apply to the liability ofthe city as a property owner pursuant to subdivision b of this section.
d. Nothing in this section shall in any way affect the provisions of this chapter or of any other lawor rule governing the manner in which an action or proceeding against the city is commenced, including any provisions requiring prior notice to the city of defective conditions.
Summary of difference:
The City of New York is not liable for defective sidewalks/ including removal of snow in front ofproperty other than 1,2,or 3 family homes that are owner occupied and that are exclusivelyresidential. In all other cases the usual PWN rules apply. If a person falls in front of a 1,2,or 3 familyhome (that would fall within the new law) in order to sue the City of New York you must establishPWN or some other exception. In analyzing the “exclusive residential ” language, you shouldconsider whether the owner occupant uses any portion of their home for business (i.e. by taking anincome tax deduction). This might take the home out of the benefit of the new law. Where the newlaw applies you might want to consider the use of the Big Apple Map for the purpose of showingconstructive notice. In cases where the City of New York is the owner of the property PWN is stillrequired as per Adm Code 7-201.
In Ellen LoCurto, Plaintiff-Appellant, v. The City of New York, Defendant-Respondent, 2003N.Y. App. Div. LEXIS 13581, plaintiff, after putting money in a parking meter, tripped and felltraversing a strip of grass and dirt between the curb and the paved sidewalk. The lower courtdismissed the complaint and the AD affirmed and dismissed. The court found that the grassy areabetween a curb and a paved sidewalk is part of the sidewalk, as defined in Vehicle and Traffic Law§ 144 and accordingly, the City's Pothole Law (Administrative Code § 7-201) applies (see Zizzo,id.), requiring a showing that the City had prior written notice of the alleged hole in the ground, orcreated the hole through an affirmative act of negligence, or made a special use of the grassy areathat conferred a benefit (see Torres v. City of New York, 306 A.D.2d 191, 194, 762 N.Y.S.2d 67).
note: Need PWN for grassy area on sidewalk
In Harvey v. Monteforte, 292 A.D.2d 420 (March 2002) the plaintiffs commenced the actionagainst, Monteforte and the County of Nassau for injuries when he tripped and fell on a sidewalkallegedly raised by overgrown tree roots. The plaintiffs do not allege that the County had priorwritten notice of the sidewalk defect. Rather, they contend that deposing the County's horticulturistwill show that the County had actual notice of the sidewalk defect, thus obviating their need tocomply with the County's prior written notice provision. The appellate court held that actual noticeis not an exception to the prior written notice requirement. Moreover, the horticulturist's depositionwill not help the plaintiffs establish the applicability of either of the only two recognized exceptionsto the County's prior written notice requirement, namely, a defect created by the County or a specialuse conferring a special benefit on the County (see, Amabile v City of Buffalo, 93 NY2d 471, 474).Thus, the court said the plaintiffs have failed to establish that the horticulturist's deposition ismaterial and necessary to the prosecution of their case.
*** The notion that actual notice is not an exception to the PWN requirement has been madequite clear.
Note:t/f over tree roots…actual notice not enough
In Campisi v. Bronx Water & Sewer Serv. , 1 A.D.3d 166 (2003) the court granted theCity's motion for summary judgment. The court found the City properly established, throughan affidavit from an appropriate official, that a search of the Department of Transportation'srecords was conducted and that there was no prior written notice of the defective condition.Futhermore,
there was no evidence that the City created the defective condition. Accordingly, that exception tothe requirement of prior written notice does not apply. Neither actual nor constructive notice of thedefect may substitute for prior written notice.
also see Quinn v. City of New York 305 A.D.2d 570 (2003), where the court held constructivenotice is not an exception to the PWN requirement. In addition PJI 2:225 was inappropriate to chargeas that section applies where there is no PWN requirement. It further reaffirmed that not even actualnotice obviates the need for prior written notice. It further held, where there are factual disputesregarding the precise location of the defect that allegedly caused a plaintiff's fall, and whether thealleged defect is designated on the map, the question should be resolved by a jury (see Patane v Cityof New York; David v City of New York).
In Braunstein v. County of Nassau, 294 A.D.2d 323(2002) the plaintiff tripped and fell over adefective catch basin in the roadway. The county moved to dismiss, as there was no PWN. The courtheld that the plaintiffs failed to establish that the Town had prior written notice of the defectivecondition or that the Town created the condition by an affirmative act of negligence or that its useof the property constituted a special use for the benefit of the Town. The catch basin in question didnot fall within the special use exception to the prior written notice requirement as its drainagefunction provided proper maintenance of a safe roadway and served no municipal function inuringto the special benefit of the Town. Contrary to the plaintiffs' remaining contention, "constructivenotice of a defect may not override the statutory requirement of prior written notice to themunicipality" (Henrickson v City of New York, 285 A.D.2d 529, 727 N.Y.S.2d 659; see Amabilev City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104).
Note: the court reaffirmed constructive notice not sufficient…also catch basin not special benefit tocounty.
In Zizzo v. City of New York, 176 A.D.2d 722 (1991) the plaintiff slipped and fell on the roots ofa tree which were growing in the grassy area between the sidewalk and the curb in front of thebuilding owned by the building owner. The plaintiff sued the City and the property owner. TheSupreme Court denied the building owner's cross motion for summary judgment as to it, and grantedthe city's motion for summary judgment as to it. On appeal, the building owner obtained dismissalof the complaint against it, and the city's summary judgment was upheld. The court found that thetrees in question were owned and maintained by the city. Under the "Pothole Law," Admin. Code§ 7-201c, since no prior written notice of the defect had been given, it was necessary for thepedestrian to establish affirmative negligence on the part of the city in order for it to be held liable.The court ruled that the mere planting of a curbside tree did not, in itself, constitute an affirmativeact of negligence. The alleged failure of the city to maintain the tree in question constituted, at best,simple nonfeasance for which there could be no liability absent prior written notice of the condition.Contrary to the plaintiff's contention, the grassy area adjacent to the curb line where the plaintiff fellis part of the sidewalk and New York City's "Pothole Law" (Administrative Code of the City of NewYork § 7-201c) is applicable thereto. In order to establish a basis for liability on the part of theabutting landowner, it must appear that the defective condition in the sidewalk was created by theowner. Viewed in its most favorable light, the plaintiff's evidence failed to establish that thedefective condition upon which the plaintiff fell was created by Glen Oaks as opposed to the normalgrowth of the tree with the passage of time. The court held, that an abutting landowner is not liableto a plaintiff who trips over a portion of the public sidewalk which is raised due to the upwardpressure of the roots of a tree maintained by the City of New York even when the landowner sweptthe sidewalk, cleared it of snow, and mowed the areas of grass abutting it.
Note: t/f tree roots…grassy knoll part of sidewalk need PWN
In Estrada v. City of New York 273 A.D.2d 194 (2d Dept. 2000) the plaintiff slipped on an oil spillof unknown origin on a City thoroughfare. The court stated, pursuant to Administrative Code of theCity of New York § 7-201(c)(2), a plaintiff must plead and prove that the City had prior writtennotice of a street defect before it can be held liable for its alleged negligence in failing to maintainits streets in a reasonably safe condition. The court further said transitory slippery conditions, suchas those presented by oil, sand, loose dirt, or ice are the types of potentially dangerous conditions forwhich prior written notice must be given before liability will attach. In this case the plaintiff did notplead, and the municipal defendants did not receive, prior written notice of the oil spill that allegedlycaused the plaintiff's accident and thus the case was dismissed. A municipality, whichhas enacted a prior written notice statute, may not be subject to liability for personal injuries unlessit either received actual written notice of the dangerous condition, its affirmative act of negligenceproximately caused the accident, or where a special use confers a special benefit on the municipality.
Note: need PWN for transitory conditions such as oil, sand, ice
How does one show Prior Written Notice sufficient to meet the statutory requirement?…and howdoes one read the Big Apple Maps?
In Katz v. City of New York, 87 N.Y.2d 241 (1995) the Court of Appeals dismissed plaintiff’sclaim when the City produced a successor map that did not show any defect in the area of plaintiff’saccident. The court said based on Big Apple Pothole and Sidewalk Protection Committee, Inc.’spolicy that subsequent, successor maps supercede earlier maps, the map that is closest in time to thedate a defect is alleged to have caused an accident is controlling.
Note: The most current map applies which supercedes all prior maps. Also see Dallal v. City of NewYork, 257 AD2d 354 (1999) and Gruska v. City of New York, 292 AD2d 498 (2002).
In Camacho v. City of New York, 218 A.D.2d 725(1995) the plaintiff described the condition thatcaused her to fall as a hole. The plaintiff produced a “Big Apple” map to establish prior writtennotice. The map indicated the presence of a raised portion of the sidewalk (a straight line not acircle). The Appellate Division held that the map was insufficient to constitute notice of the specificdefect, namely a hole, saying the defendant's knowledge of the map which indicated the existenceof a raised sidewalk at the location in question was insufficient to constitute notice of the particulardefect which actually caused the accident.
Note: One of the most cited cases by my office…case only one paragraph long.
The next case put to rest an important issue as to whether a municipality could be liable for what itshould have seen or done.
Amabile v. City of Buffalo, 93 N.Y.2d 471(1999), the Court of Appeals concluded that if amunicipal law requires a showing that a designated municipal official be given formal notice inwriting of a defective condition as a condition precedent to municipal liability, the absence of suchnotice will insulate the municipality.
The court noted that it had recognized two exceptions to the rule of written notice: 1) where themunicipality itself created the defect and, 2) where a special use confers a special benefit on themunicipality. The court rejected the plaintiff’s request that it adopt a third exception, where thedefect was not known to the municipality but could have or should have been known by the exerciseof ordinary diligence and care on its part.
Here plaintiff tripped and fell over the remnants of a stop sign that had been knocked down by anautomobile accident. Evidence suggested that this condition had existed for six to twelve months.Plaintiffs produced City business records demonstrating that a now deceased City worker had beenemployed solely for the purpose of driving through the City in search of damaged or missing streetsigns. Those records demonstrated that this individual had driven past or near the intersection manytimes. Accordingly, plaintiffs argued, the City had constructive notice of the defective sidewalkbecause it would be impossible to drive past or near the intersection and not observe both themissing stop sign and the defective sidewalk surrounding its base. The court held the fact that therewere inspections did not supplant the need for PWN. In addition the court held constructive noticeof a defect may not override the statutory requirement of prior written notice of a sidewalk defect.
Note: what a person should have seen is not an exception to PWN requirement
In Belmonte v. Metro. Life Ins. Co., 304 A.D.2d 471(2003) in denying defendants' various motionsfor summary judgment, the lower court relied on a "Big Apple" map filed with the City on August21, 1998, which purports to give notice of a raised and uneven sidewalk in this vicinity. TheAppellate Division said, the Supreme Court's findings do not fairly reflect the record evidence. The"Big Apple" map does indeed show an "extended section of raised or uneven sidewalk," accordingto the accompanying key, running around the entire perimeter of Metropolitan's Life's property.Presumably, this is unevenness between the cobblestones used by Metropolitan Life for paving andthe cement slabs utilized by the City. Significantly, the only defects indicated by lines on the mapare parallel to the curb. The defect at issue in this case is located on an expansion joint perpendicularand not parallel to the curb, as clearly reflected in the accompanying photographs.
The general rule: "the owner or lessee of land abutting a public sidewalk owes no duty to the publicto keep the sidewalk in a safe condition unless the landowner or lessee creates a defective conditionin the sidewalk or uses it for a special purpose" (Otero v City of New York, 213 A.D.2d 339, 624N.Y.S.2d 157). Absent evidence establishing such a duty of the adjacent property owner, summaryjudgment is warranted (id.). No such evidence is presented here. Indeed, no competent evidencecontroverts testimony by Metropolitan Life's building manager that there was no special use and thatif there is a defect, it was not caused by Metropolitan Life. As such, Metropolitan Life is entitled tosummary judgment dismissing the complaint against it on this basis.
As to the City, Plaintiff must document the existence of, as well as adequate notice of, the specificdefect that she alleges. No such documentation is in the record. In addition the facts andcircumstances of this location, including the general condition of the sidewalk, the time of day andlighting conditions, insofar as they are set forth in the record, indicate a defect that is, at best, trivial.The court dismissed the case against the City saying no PWN as well as trivial defect.
Note: I included this case to show that the court will look to the type of defect that the plaintiffalleges and compare it to the photograph. The direction and the type of the defect are significant.
Note: Direction of line on Map is significant
In Brill v. City of New York, 305 A.D.2d 525 the defendant City of New York (hereinafter theCity) established its prima facie entitlement to judgment as a matter of law by demonstrating that itdid not have written notice of any defect in the sidewalk at the location where the injured plaintiffallegedly fell and that it did not create the alleged defective condition (see Gruska v. City of NewYork, 292 A.D.2d 498, 739 N.Y.S.2d 427; Kempler v. City of New York, 272 A.D.2d 584, 709N.Y.S.2d 818). In opposition to the motion, the plaintiffs failed to come forward with evidencesufficient to raise a triable issue of fact. A "Big Apple" map indicating defects in the sidewalkadjacent to the area of the accident did not provide sufficient notice of the alleged defect at thelocation of the fall and therefore did not satisfy the written notice requirement of AdministrativeCode of the City of New York § 7-201(c) (see Curci v. City of New York, 209 A.D.2d 574, 619N.Y.S.2d 98; Goldston v. Town of Babylon, 145 A.D.2d 534, 535 N.Y.S.2d 748; Leary v City ofRochester, 115 A.D.2d 260, 496 N.Y.S.2d 169, affd 67 N.Y.2d 866, 501 N.Y.S.2d 663, 492 N.E.2d791).
1 Note: Leave to appeal has been granted to P
In Bruni v. City of New York, 302 A.D.2d 545 the pedestrian was injured when he fell afterstepping into a hole in the curb immediately adjacent to a defective sewer catch basin. At trial,the pedestrian proffered evidence of an intra- departmental work order pertaining to the catchbasin prepared more than one month before the accident by the New York City, New York,Department of Environmental Protection. The city sought a judgment as a matter of law on theground that the pedestrian failed to establish notice under the Pothole Law, New York City,N.Y., Admin. Code § 7- 201(c) . The appellate court held that, contrary to the pedestrian'scontention, the intra- departmental work order, which noted that the catch basin was defective,did not constitute a "written acknowledgment from the city" of the defective condition withinthe meaning of the Pothole Law. Moreover, the pedestrian failed to establish that the citycreated the defect through an affirmative act of negligence so as to put the case into one of therecognized exceptions to the statutory condition precedent to bringing an action against thecity. Accordingly, the trial court erred in denying the city's application for judgment as a matterof law.
Note: Leave to appeal has been granted to P
In Gee v. City of New York, 304 A.D.2d 615 the plaintiff Gee was injured in a one- vehiclemotorcycle accident on the northbound Gowanus Expressway, approximately 250 feet south ofthe Battery Tunnel toll plaza, allegedly due to an uneven and/or raised road surface betweenthe extreme left lane and the lane to its right. The defendant Slattery Associates, Inc.(hereinafter Slattery), performed construction on the alleged accident site six years earlier,installing the portion of the roadway which allegedly caused the plaintiff's accident pursuant toa contract with New York State. The defendant City of New York issued permits for the project.
The court held the City's issuance of a work permit does not constitute evidence of prior writtennotice (see Levbarg v. City of New York, 282 A.D.2d 239, 723 N.Y.S.2d 445; Meltzer v. City ofNew York, 156 A.D.2d 124, 548 N.Y.S.2d 26). In addition as to Slattery a builder or contractoris justified in relying upon the plans and specifications which he has contracted to follow unlessthey are so apparently defective that an ordinary builder of ordinary prudence would be putupon notice that the work was dangerous and likely to cause injury.
2 Premises Liability..notice and Abutting Landowners
Abutting Landowners Responsibility for the sidewalk…landowner owes no duty to the generalpublic to keep the sidewalk safe unless the
1.landowner affirmatively creates or causes a defective condition or
2.uses it for a special purpose or
3.where the sidewalk was constructed in a special manner or
4.where the abutting property owner negligently constructed or repaired the sidewalk
In Otero v. City of New York, 213 A.D.2d 339 (1st Dept. 1995) the plaintiff tripped and fell on asidewalk… apparently the property owner had done some work around a nearby tree well by puttingcobblestones and blacktop in the area…the court held, the owner of or lessee of land abutting apublic sidewalk owes no duty to the public to keep the sidewalk in a safe condition unless thelandowner or lessee creates a defective condition in the sidewalk or uses it for a special purpose. Inthis case there was no such poof.
It is well settled that the owner of, or lessee of land abutting a public sidewalk owes no duty to thepublic to keep the sidewalk in a safe condition unless the landowner or lessee affirmatively createsor causes a defective condition in the sidewalk, or where the sidewalk was constructed in a specialmanner or uses it for a special purpose, or where the abutting landowner negligently constructed orrepaired the sidewalk.
Note: If the property owner is sued but says…
1.neither I nor anyone on my behalf created the defective condition or constructed the sidewalk
2.neither I nor anyone on my behalf performed any repairs
3.neither I nor anyone on my behalf made any special use of the sidewalk
…if it is consistent with deposition testimony that may be good enough to get the case dismissed.
To argue a special use of the sidewalk the plaintiff must show that the defendants use of the specialuse of the sidewalk (for example as a driveway) contributed to the defective condition. The plaintiffmust show that the use of the driveway contributed to the defective condition or caused the defectivecondition. (P should obtain an expert).
Benenati v. City of New York, 282 A.D.2d 418 (2nd Dept. April 2, 2001), the court found abuttinglandowners will not be liable to a pedestrian passing by on a public sidewalk unless the landownercaused the defect to occur because of some special use of the sidewalk. Here, the plaintiff allegedlytripped and fell on a defect in the curb adjacent to the curb cut that provides access to the drivewayleading to the appellants’ property and garage. The evidence failed to support the plaintiff’sallegation that the defect was caused by the appellant’s special use of the sidewalk as a driveway orthat the driveway in any way contributed to the allegedly defective condition. Accordingly,appellant’s motion for summary judgment should have been granted. An abutting landowner willnot be liable to a pedestrian passing by on a public sidewalk unless the landowner, caused the defectto occur because of some special use of the sidewalk. Here, the plaintiff allegedly tripped and fellon a defect in the curb adjacent to the curb cut, which provides access to the driveway leading to theappellants' property and garage. The evidence fails to support the plaintiff's allegation that the defectwas caused by the appellants' special use of the sidewalk as a driveway or that the driveway in anyway contributed to the allegedly defective condition. Accordingly, the Supreme Court should havegranted the appellants' motion for summary judgment.
Note: Must show use of special use caused defect …P needed expert …see Infante v.City of New York, 258 A.D.2d 333.
Ivanyushkina v. City of New York 2002 N.Y. App. Div. LEXIS 12776, (2002), the pedestriantripped and fell on a public sidewalk directly adjacent to the driveway of the premises owned andused by the landowners. The appellate court found that the evidence failed to support the pedestrian'sallegation that the defect was caused by the landowners' special use of the sidewalk as a drivewayor that the driveway in any way contributed to the allegedly defective condition. Since the abuttinglandowners could not be liable to the pedestrian for the defect on the public sidewalk unless thelandowners, caused the defect to occur because of some special use of the sidewalk, the trial courtproperly granted the landowners' separate motions for summary judgment. An abutting landownerwill not be liable to a pedestrian passing by on a public sidewalk unless the landowner caused thedefect to occur because of some special use of the sidewalk. Here, the plaintiff tripped and fell ona public sidewalk directly adjacent to the driveway of the premises owned and used by the abuttinglandowners. The evidence fails to support the plaintiff's allegation that the defect was caused by thespecial use of the sidewalk as a driveway or that the driveway in any way contributed to the allegedlydefective condition.
Note: Must show defect caused by special use
When dealing with the issue of improper repairs the plaintiff must show that the repair or attemptedrepair was negligently done and that such repair made the condition more dangerous than if theproperty owner never did anything.
In Devine v. City of New York , 300 A.D.2d 532 (2002) the plaintiff allegedly fell afterstepping into a hole in a public sidewalk located next to the property owners' store. Theappellate court ruled that a landowner was not liable to a pedestrian injured by a defect ina public sidewalk abutting the landowner's premises unless the landowner (1) created thedefective condition, (2) voluntarily but negligently made repairs, (3) created the defectthrough special use, or (4) violated a statute or ordinance which expressly imposedliability on the abutting landowner for failure to maintain and repair the sidewalk. Theproperty owners showed that they did not create the defective condition, never repairedthe sidewalk, and made no special use of the sidewalk. The injured person failed toestablish the existence of a triable issue of fact. A step facilitating entry to a landowner'sstore was not a special use where that step did not protrude past the building's boundaryinto a public sidewalk. Here, photos showed that the step in question did not extend pastthe building line, so the property owners were not liable based on the special use doctrine.
Note: On the issue of snow removal a property owner is under no duty to a pedestrian to removesnow or ice that naturally accumulates on the sidewalk in front of his premises. In addition the failureto remove all of the snow will not result in liability unless it is shown that the owner or lessee madethe sidewalk more hazardous through negligent snow removal.
Archer v. City of New York 2002 N.Y. App. Div. LEXIS 12803, (2002), … the plaintiff allegedlysustained injuries, when she slipped and fell on an accumulation of snow and ice in the vicinity ofa curb cut at the intersection of 31st Street and Church Avenue in Brooklyn. The plaintiff fell whiletrying to gain access to the adjacent sidewalk where the snow had been cleared. She sued the Cityof New York and the owners of the property abutting the sidewalk. Additionally, she sued ChampionFurniture, Inc., the lessee of the premises, and the operator of the furniture store at that location, CarlBest. The Champion defendants cross-moved for summary judgment, arguing that their snowremoval efforts did not extend to the curb cut area where the plaintiff fell, and did not worsen theexisting conditions. Conversely, the plaintiff claimed that the four- to five-inch pile of ice and snowupon which she slipped might have been the result of the snow removal efforts of the Championdefendants. An owner or lessee of property abutting a public sidewalk is under no duty to pedestriansto remove snow and ice that naturally accumulates upon the sidewalk in front of the premises unlessa statute specifically imposes tort liability for failing to do so.(..now it does) When, as in this case,there is no such statutory liability the failure to remove all of the snow from a storm will not resultin liability unless it is shown that the owner or lessee made the sidewalk more hazardous throughnegligent snow removal efforts. The Champion defendants established their prima facie entitlementto summary judgment by submitting evidence which demonstrated that they undertook no snowremoval efforts in the area where the plaintiff fell and did not otherwise exacerbate the snow and icecondition at that location. The plaintiff failed to proffer any evidence in opposition indicating thatthe Champion defendants created or exacerbated the condition of the curb cut area, nor did theprovisions of the lease applicable to the premises give rise to a duty owed by the Championdefendants to the plaintiff to clear and maintain that area.
Note: Defendant neither created condition nor exacerbated snow condition (did not makemore hazardous). A failure to remove all of the snow is not negligence, and liability willnot result unless it is shown that the defendant made the sidewalk more dangerous. See Savage v. Shah, 297 A.D.2d 795 .
3 Joint and Several Liability CPLR 1601
Article 16 was enacted to modify the traditional rules of joint and several liability…where onetortfeasor is responsible for the entire judgment if he is found at least 1% at fault. Article 16provides that a joint tortfeasor can limit his liability for non economic damages (pain and suffering)(subject to exceptions CPLR 1602) where he is found to be 50% or less at fault. P must plead nonapplicability of CPLR 1602 if not he waives it.
§ 1601. Limited liability of persons jointly liable
1.Notwithstanding any other provision of law, when a verdict or decision in an action or claim for personalinjury is determined in favor of a claimant in an action involving two or more tortfeasors jointlyliable or in a claim against the state and the liability of a defendant is found to be fifty percent or lessof the total liability assigned to all persons liable, the liability of such defendant to the claimant fornon-economic loss shall not exceed that defendant's equitable share determined in accordance withthe relative culpability of each person causing or contributing to the total liability for non-economicloss; provided, however that the culpable conduct of any person not a party to the action shall notbe considered in determining any equitable share herein if the claimant proves that with duediligence he or she was unable to obtain jurisdiction over such person in said action (or in a claimagainst the state, in a court of this state); and further provided that the culpable conduct of any personshall not be considered in determining any equitable share herein to the extent that action againstsuch person is barred because the claimant has not sustained a "grave injury" as defined in sectioneleven of the workers' compensation law.
2.Nothing in this section shall be construed to affect or impair any right of a tortfeasor under section 15-108 ofthe general obligations law.
How does it work…
P sues the City of New York and D the driver of the other car for a MVA involving a question oflights (D is not entitled to the benefits of Article 16 since there is an exclusion for auto accidentsCPLR 1602(6) however the City is protected from joint and several liability by reason of Article 16because the city is being sued for a traffic light). Therefore, the City is only responsible for itsproportionate share of the pain and suffering award (non economic damages) if it was found to be50% or less at fault. The City is entitled to the limited liability offered under Article 16 even thoughthe maintenance of its traffic lights is considered a non delegable duty (see infra Rangolan v. Countyof Nassau).
The argument as to the meaning of the non delegable duty language in the statute had created muchlitigation but has now been resolved by the court of appeals.
§ 1602. Application
The limitations set forth in this article shall:
1.apply to any claim for contribution or indemnification, but shall not include:
(a) a claim for indemnification if, prior to the accident or occurrence on which the claim isbased, the claimant and the tortfeasor had entered into a written contract in which the tortfeasor hadexpressly agreed to indemnify the claimant for the type of loss suffered; or
(b) a claim for indemnification by a public employee, including indemnification pursuant tosection fifty-k of the general municipal law or section seventeen or eighteen of the public officerslaw.
2.not be construed to impair, alter, limit, modify, enlarge, abrogate or restrict (i) the limitations set forth insection twenty-a of the court of claims act; (ii) any immunity or right of indemnification availableto or conferred upon any defendant for any negligent or wrongful act or omission; (iii) any right onthe part of any defendant to plead and prove an affirmative defense as to culpable conductattributable to a claimant or decedent which is claimed by such defendant in the diminution ofdamages in any action; and (iv) any liability arising by reason of a non-delegable duty or by reasonof the doctrine of respondeat superior.
3.not apply to administrative proceedings.
4.not apply to claims under the workers' compensation law or to a claim against a defendant where claimanthas sustained a "grave injury" as defined in section eleven of the workers' compensation law to theextent of the equitable share of any person against whom the claimant is barred from asserting acause of action because of the applicability of the workers' compensation law provided, however,that nothing in this subdivision shall be construed to create, impair, alter, limit, modify, enlarge,abrogate, or restrict any theory of liability upon which any person may be held liable.
5.not apply to actions requiring proof of intent.
6.not apply to any person held liable by reason of his use, operation, or ownership of a motor vehicle ormotorcycle, as those terms are defined respectively in sections three hundred eleven and one hundredtwenty-five of the vehicle and traffic law.
7.not apply to any person held liable for causing claimant's injury by having acted with reckless disregard forthe safety of others.
8.not apply to any person held liable by reason of the applicability of article ten of the labor law.
9.not apply to any person held liable for causing claimant's injury by having unlawfully released into theenvironment a substance hazardous to public health, safety or the environment, a substance acutelyhazardous to public health, safety or the environment or a hazardous waste, as defined in articlesthirty-seven and twenty-seven of the environmental conservation law and in violation of articleseventy-one of such law; provided, however, that nothing herein shall require that the violation ofsaid article by such person has resulted in a criminal conviction or administrative adjudication ofliability.
10.not apply to any person held liable in a product liability action where the manufacturer of the product is nota party to the action and the claimant establishes by a preponderance of the evidence that jurisdictionover the manufacturer could not with due diligence be obtained and that if the manufacturer werea party to the action, liability for claimant's injury would have been imposed upon said manufacturerby reason of the doctrine of strict liability, to the extent of the equitable share of such manufacturer.
11.not apply to any parties found to have acted knowingly or intentionally, and in concert, to cause the acts orfailures upon which liability is based; provided, however, that nothing in this subdivision shall beconstrued to create, impair, alter, limit, modify, enlarge, abrogate, or restrict any theory of liabilityupon which said parties may be held liable to the claimant.
12.in conjunction with the other provisions of this article not be construed to create or enlarge actions forcontribution or indemnity barred because of the applicability of the workers' compensation law ofthis state, any other state or the federal government, or section 18-201 of the general obligations law.
Again lets say P sues the City of New York because there is a defective traffic light (which isconsidered a non delegable duty) and D the driver of the other car who was intoxicated and wentthrough a steady red light/speeding and violated other provisions of the VTL. The jury determinesthe City is 10% at fault and the driver with a $10,000 policy is 90% at fault. Lets assume the verdictis $100,000 all for Pain and Suffering. The City is now responsible for only 10% of the pain andsuffering award ($10,000). As for the economic damages, joint and several liability still applies. Inthis case there were no economic damages. The Driver would be responsible for 100% of the painand suffering not 90% since Article 16 does not apply to auto accidents.($100,000). If the verdictwere for $50,000 pain and suffering and $50,000 for economic loss the city would be joint andseverally liable for the economic damages.
In Rangolan v. County of Nassau, 96 NY2d 42 (2001), the Plaintiff, an inmate was injured whena fellow inmate, King (King was not named in the action) beat him in prison. Plaintiff had previouslycooperated as a confidential informant against King. Plaintiff’s prison file said he was not to behoused in the same dormitory with King. Plaintiff claimed, he should not have been housed in thesame dormitory with King because of a possible threatened retaliation by King. Unfortunately,Plaintiff and King were placed in the same dormitory and Plaintiff was in fact assaulted by King.Plaintiff brought a claim in Federal court against the county, claiming in part negligence on the partof the county for breaching its non delegable duty to protect the Plaintiff while in prison. The federaltrial court refused to charge CPLR 1601 between the county and King as requested by the county.
A certified question was forwarded from the 2nd Circuit to the Court of Appeals.
In answer to the question from the federal court the Court of Appeals held CPLR 1602(2)(iv) is notan exception to apportionment under CPLR article 16, but a savings provision that preserves theprinciples of vicarious liability. The non delegable language was meant to apply to vicariousderivative liability and as such to prevent the deriver from trying to get off the hook for the act ofthe derivee. Hence a car owner could not escape liability by blaming the driver of his car, or ageneral contractor escape liability by blaming his subcontractor whom actually did the work.
Thus Article 16(2) ensures that a defendant is liable to the same extent as its delegate or employeeand article 16 is not construed to alter this liability.
The court said while article 16 was intended to remedy the inequities created by joint and severalliability on low-fault, "deep pocket" defendants, it is nonetheless subject to various exceptions thatpreserve the common-law rule. At issue here is whether CPLR 1602 (2) (iv) is one of thoseexceptions.
Note: CPLR1602(2)iv …non delegable duty language…is not an exception but rather a savingprovision that preserves vicarious liability ensuring that a defendant is liable to the same extent asits delegate
The result is that if the City of New York is found liable to the plaintiff for the violation of a dutythat can be said to be a “non-delegable” one…like a municipality’s duty to maintain a traffic lightor fix a pothole or maintain its roadway and sidewalks…the municipality still enjoys the benefits ofArticle 16 between other tortfeasors, if, whatever the nature of the fault, it has been foundresponsible for 50% or less of the total liability.
On the same day the court decided:
In Faragiano v. Town of Concord, 96 N.Y.2d 776 (2001), the Plaintiff was injured as a result ofMVA in which the Plaintiff was a passenger in a car which lost control and then hit a parked vehicle.The Plaintiff claimed that the town was negligent in failing to properly maintain the road (nondelegable duty) and a co-defendant contractor (Town’s contractor) was negligent in permitting abuild up of oil and tar on the road as well as the driver of the car was negligent in his operation ofthe vehicle that the Plaintiff was a passenger in. The Town asserted, as an affirmative defense, thatits liability for any non-economic losses should be apportioned among the other tortfeasors pursuantto CPLR article 16. The Plaintiff then moved to amend their pleadings to allege that CPLR 1602 (2)(iv) precluded apportionment. The Town then cross-moved for partial summary judgment on itsarticle 16 defense, arguing that CPLR 1602 (2) (iv) is not an exception to apportionment underarticle 16, but a savings provision that preserves vicarious liability.
The Court of Appeals found that the C.P.L.R. 1602(2)(iv) was a savings provision that ensured thata defendant under a non-delegable duty remained vicariously liable for the negligence of its delegatesor employees. Therefore the Plaintiff could not rely on the statute to preclude the Town from seekingapportionment between itself and other joint tortfeasors for whose liability the appellant was notanswerable.
Result…let’s assume the jury apportions liability…town 10%, contractor 25%, driver 65% Article16 applies between the town and the driver…the town is only responsible for a maximum of35%…however the town can get its $ from the contractor’s 25 % share.
A municipality that delegates a duty to a contractor remains liable for the contractor’s negligence andcannot apportion liability between itself and its contractor. A municipality can apportion liabilitybetween itself and other tortfeasors for whose liability it is not answerable.
Note: In dealing with another ambiguous subdivision of Article 16, the intentional tort subdivision,the Appellate Division first department recently decided 3 cases dealing with CPLR 1602(5) and theapportionment of liability between negligent tortfeasor and intentional tortfeasor. One of the casesreached the Court of Appeals.
In Concepcion v. HHC, 284 A .D. 2d 37(2001), the Plaintiff, then 16 years old, sustained personalinjuries while she was visiting her cousin at North Central Bronx Hospital. Plaintiff had aconfrontation with Iliana Ramos, an out-patient at the hospital. Ms. Ramos is not a party to thisaction. Several months earlier, Ramos and plaintiff's sister had a physical confrontation in whichRamos stabbed the sister with an ice pick. Upon seeing plaintiff at the hospital, Ramos threatenedher and said she would "get" her. Plaintiff and her friend informed the maternity nurse about theincident, indicating that plaintiff felt threatened. The nurse told plaintiff that she would alert securitybut never did. A few moments later, Ramos attacked plaintiff, slashing her face with a box cutter.The hospital security apprehended Ramos and detained her for the police. The trial court refused tocharge an apportionment of damages with the unnamed assaulter. The Appellate Division reversedstating that apportionment applied.
The complaint alleged simple negligence against defendant HHC. There were no allegations ofwillful conduct nor did plaintiff commence an action against Ms. Ramos for the assault. The courtheld that there is nothing in the CPLR 1602(5) exclusion that would indicate that it was intended topreclude a negligent tortfeasor from seeking apportionment from an intentional tortfeasor. Inaddition, the court held the exclusion would defeat the purpose of Article 16, which is to protect low-fault, "deep pocket" defendants from being fully liable pursuant to joint and several liability rules.Under the recent doctrine announced in Rangolan v County of Nassau, (96 N.Y.2d 42), the courtstated it would follow the analysis despite the unlikelihood of any meaningful remedy against theintentional tortfeasor.
Note: Ok to apportion between negligent tortfeasor and intentional tortfeasor who was not named.
In Chianese v. Meier, 98 N.Y. 2d 270 (June 2002), (Court of Appeals reversed the 1st Dept)apportionment of liability is ok between negligent tortfeasor (property owner) and non partyperpetrator (intentional tortfeasor). The Plaintiff Josephine Chianese, a 60-year-old teacher ofhandicapped children, was attacked by a perpetrator named Adger, on May 14, 1992 while enteringher third-floor apartment in Greenwich Village. When she left the building that morning, between7:30 and 8:00 a.m., plaintiff noticed that the inner self-closing, self-locking security door of the firstfloor vestibule had been propped wide open with a kick-down doorstop that the buildingsuperintendent, Rudy Durakovic, had affixed years earlier. The front double doors were also wideopen. Between 8:00 and 8:15 a.m. that morning, another tenant, upon leaving the building, observedthe open security door, and closed it behind her.
Plaintiff sued the building owner and managing agent, alleging inadequate building security. The juryfound that Adger had gained entrance to the premises through a negligently maintained entrance,which was a substantial factor in causing plaintiff's injuries and apportioned the liability 50-50between defendants and Adger. The trial court granted plaintiff's motion to set aside theapportionment, concluding that defendants had breached a nondelegable duty and thus came withinan exception (CPLR 1602[2][iv]) to the otherwise applicable limitation of liability under CPLRarticle 16. The court of appeals held that the section 1602(5) exception does not apply in this case.Plaintiff's complaint asserted only negligence as the basis for the defendants' liability. Becauseplaintiff's negligence claim is not an "action requiring proof of intent," section 1602(5) on its facedoes not apply to preclude apportionment of liability. The fact that a non-party tortfeasor actedintentionally does not bring a pure negligence action within the scope of the exclusion.
Note: Apportionment proper between negligent tortfeasor and intentional tortfeasor
In Roseboro v. NYCTA, 286 A.D.2d 222 (2001), the Plaintiff's decedent was struck by a subwaytrain as it approached the 116th Street station in Manhattan. Mr. Roseboro had descended onto thetracks in an attempt to evade an assault by three men who were subjecting him to a beating. Thevictim was struck by a subway train and killed. The assailants were later apprehended and convictedof felony murder in connection with the attack. The jury found that the failure of the authority's tokenbooth clerk to summon assistance was a substantial contributing factor to the injury and death. Herethe Plaintiff's assertion that CPLR article 16 precludes apportionment is without merit. The plaintiffshad alleged only negligence against the authority so apportionment was proper.
CPLR 1602 provides that the limitation of a defendant's share of non-economic damages to theextent of its own culpability does "not apply to actions requiring proof of intent" (CPLR 1602[5]).
Note: Having failed to adequately plead the issue of the limitation of liability as per CPLR 1603,plaintiff has waived the limitation on apportionment of non-economic injury. A new trial is requiredto determine the extent of the liability of the nonparty intentional tortfeasors (Rangolan vCounty of Nassau, 96 NY2d 42). There is no suggestion that defendant's conduct was willful, andplaintiff has instituted no action against any of the assailants convicted for the felony murder ofplaintiff's decedent. The exclusion, by its terms, is applicable to "actions" prosecuted againstintentional tortfeasors and cannot, by implication, be extended to nonparties.
Apportionment was designed to protect municipalities, landowners, and employers, who often oweda non-delegable duty or were vicariously liable for their agents' actions.
In Stevens v. NYCTA, 288 A.D.2d 460 (2001), the plaintiff was allegedly pushed onto the subwaytracks at a subway station, and a subway train struck her resulting in severe and permanent injuries. The court held that while the defendants are not entitled to dismissal of the complaint on this basis,CPLR article 16 is applicable herein.
Note: Perps not indicted
In Lubecki v. City of New York, 304 AD2d 224 (2003), after a bank robbery, as the robber fled thescene, he grabbed the decedent to use as a human shield who was ultimately shot and killed. Thedecedent's estate and her brother, who was standing nearby, and saw the event, sought to recover.After judgment for the Plaintiff at the trial, defendants sought reversal on the basis of variousevidentiary matters, and also on the basis that they were denied an opportunity to seek limitation oftheir liability by apportionment of fault and the consequential mitigation of their equitable share ofdamages. The appellate court found that defendants could not claim the defense of justificationapplicable only as a defense to criminal charges, especially insofar as they were not defendingagainst criminal charges. Further, the trial court properly denied defendants' pre-verdict motions todismiss. The appellate court found that plaintiffs were private citizens injured by police officers'conduct. Further, although the police patrol guide established when officers may discharge theirweapons, expert testimony established the impropriety of discharging a weapon when doing sounnecessarily endangered an innocent bystander and therefore the judgemental error rule didimmunize the municipality.
However, the first department sent the case back for further findings on the issue of recklessness ofthe police. The city sought an Article 16 apportionment charge but the trial court refused based uponthe then existing state of the law.
Section 1601 states that: "Notwithstanding any other provision of law, whena verdict . . . is determined in favor of a claimant in an action involving twoor more tortfeasors jointly liable or in a claim against he state and the liabilityof a defendant is found to be fifty percent or less of the total liability assignedto all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant's equitable share determinedin accordance with the relative culpability of each person causing orcontributing to the total liability for non-economic loss . . . "
Under CPLR 1601, defendants would mitigate common law joint and several liability if they candemonstrate that they are responsible for only 50% or less of the total liability; in that event, sucha defendant's responsibility for non-economic loss would not exceed its equitable share (see Moralesv. County of Nassau, 94 N.Y.2d 218, 223, 703 N.Y.S.2d 61, 724 N.E.2d 756). Section 1602, though,specifically creates exceptions under various enumerated situations. The exception that is presentlygermane is that the general limitation on liability set forth in § 1601 shall "not apply to any personheld liable for causing claimant's injury by having acted with reckless disregard for the safety ofothers" (§ 1602[7]).
In the present case, the court entertained, but rejected, defendants' request for an instruction ofapportionment of liability between defendants and non-party tortfeasors pursuant to § 1601.Rangolan found § 1602[2][iv] to be only "a savings provision that preserves principles of vicariousliability. It ensures that a defendant is liable to the same extent as its delegate or employee, and.CPLR article 16 is not construed to alter this liability . . . . Similarly, CPLR 1602[2][iv] preventsan employer from disclaiming respondeat superior liability under article 16 by arguing that the truetortfeasor was its employee." However, Rangolan stated that the municipality itself may still seekapportionment between itself and other tortfeasors (Rangolan, supra 96 N.Y.2d at 47), a conclusionthat fundamentally undermined the reasoning of the trial court when it declined to give the article16 apportionment instruction. Hence, § 1602[2][iv] is not a bar to § 1601 apportionment, but aprovision ensuring that such a defendant will remain liable. As such, the court's reason forwithholding the issue of apportionment from the jury is no longer valid and defendants are nowentitled to the requested instruction. However as the court noted if the police officers in this caseacted in reckless disregard of the hostage's or of her brother's safety, then defendants may not relyon article 16 to limit their liability. The case was remanded to determine whether the police actedrecklessly.
Note: (also see Rodriguez infra page 55)
Pursuant to C.P.L.R. Law § 1603, a party asserting an exception to C.P.L.R. article 16 has theaffirmative obligation of pleading and proving that exception by a preponderance of the evidence.The party asserting the limitation of liability has the burden of proving by a preponderance of theevidence that its share of the liability is 50 percent or less.
§ 1603. Burdens of proof
In any action or claim for damages for personal injury a party asserting that the limitations onliability set forth in this article do not apply shall allege and prove by a preponderance of theevidence that one or more of the exemptions set forth in subdivision one of section sixteen hundredone or section sixteen hundred two applies. A party asserting limited liability pursuant to this articleshall have the burden of proving by a preponderance of the evidence its equitable share of the totalliability.Note:
Article 16 sec 1602(6) excludes motor vehicles…fire and police vehicles are excluded from thedefinition (VTL 125).
Motor vehicle exception..1602(6)…excludes accidents that occur with police and firevehicles…ambulances are authorized emergency vehicles and are judged by the reckless standard…
4 Readily Observable and Open and Obvious and Assumption of the Risk
These three categories seem to be inextricably intertwined…and at times the courts confuse and ormisuse the names
In the recent case; Denise Cupo, respondent, v. Michael Karfunkel, 1 A.D.3d 48 (2002) theplaintiff was pulling a manual hydraulic lift loaded with boxes across the public sidewalk from hertruck toward the delivery entrance at the appellants' building when the lift suddenly stopped andturned over, allegedly causing the plaintiff to lose her balance and fall to the ground. The plaintiffclaims that, as a result of the accident, she suffered a herniated disc in her lumbar spine whichrequired surgical intervention. The plaintiff testified at her examination before trial that the frontwheel of the lift caught in a depressed area of the sidewalk where the sidewalk met the metal grilleof a four-by- eleven-feet transformer vault installed and maintained by the defendant ConsolidatedEdison Company of New York, Inc. (hereinafter Con Edison). The manual lift and pallet used by theplaintiff to transport the boxes were provided by the appellant American Stock Transfer Co., whichreceived Fed Ex deliveries of 15 to 30 large heavy boxes daily. The plaintiff commenced this actionand asserts that the City of New York, as the owner of the sidewalk, Con Edison, as the owner of thetransformer vault, the appellants, as the owner of the property abutting the public sidewalk, and twotenants of the appellants' building were negligent in that they created or allowed the continuedexistence of a dangerous condition in the uneven, sunken, and depressed sidewalk near the metalgrating, and that the condition caused her to fall.
In part the defendants argued in their motion to dismiss they owed no duty to the plaintiff becausethe condition that allegedly caused her to fall was open and obvious and known to her, as she hadpreviously delivered boxes to that property.
The appellants do not dispute on appeal that the plaintiff raised a triable issue of fact as to whetherthe defect was caused by their special use of the sidewalk (see Vought v. Hemminger, 220 A.D.2d580, 582, 632 N.Y.S.2d 606). However, they argue that, regardless of whether they created thedefect, they were entitled to summary judgment because there is no duty to warn or protect a personfrom a condition that is open and obvious and can easily be observed with the reasonable use of thesenses.
A landowner "must act as a reasonable [person] in maintaining his [or her] property in a reasonablysafe condition in view of all the circumstances, including the likelihood of injury to others, theseriousness of the injury and the burden of avoiding the risk" (Peralta v.. Henriquez, 100 N.Y.2d139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170, quoting Basso v.. Miller, 40 N.Y.2d 233, 241, 386N.Y.S.2d 564, 352 N.E.2d 868). "Although a jury determines whether and to what extent a particularduty was breached, it is for the court first to determine whether any duty exists, taking intoconsideration the reasonable expectations of the parties and society generally. The scope of any suchduty of care varies with the foreseeability of the possible harm" (Tagle v. Jakob, 97 N.Y.2d 165, 168,737 N.Y.S.2d 331, 763 N.E.2d 107). The scope of a landowner's duty to maintain property in areasonably safe condition may also include the duty to warn of a dangerous condition. However, alandowner has no duty to warn of an open and obvious danger. Unless a hazard is latent, a personentering the property is just as aware as the landowner of the condition of the property and the risksassociated with it (see Tagle v. Jakob, supra at 169-170). Here, the evidence submitted on the motionestablished that the condition of the sidewalk was readily observable and that the plaintiff oftentraversed the sidewalk. Accordingly, the court agreed with the appellants' contention that they hadno duty to warn the plaintiff of the sidewalk defect.
Where a plaintiff has presented evidence that a dangerous condition exists on the property, theburden shifts to the landowner to demonstrate that he or she exercised reasonable care under thecircumstances to remedy the condition and to make the property safe, based on such factors as thelikelihood of injury to those entering the property and the burden of avoiding the risk.[ DefendantCity would be able to offer testimony as to priorities in repairing sidewalks and budgetaryconstraints] Evidence that the dangerous condition was open and obvious cannot relieve thelandowner of this burden. Indeed, to do so would lead to the absurd result that landowners wouldbe least likely to be held liable for failing to protect persons using their property from foreseeableinjuries where the hazards were the most blatant.[ At the same time the issue of proximate cause isstill a factor and the jury could find that the P’s negligence was the sole proximate cause of theaccident otherwise we could also have the absurd result of having liability as a matter of law as tothe defendant where the defect is considered open and obvious.] In holding that the open andobvious nature of a condition is relevant to the issue of the plaintiff's comparative negligence,we emphasize that this will be an issue only in cases where it can reasonably be argued thata dangerous condition existed on the property which the landowner was under a duty toremedy. We do not suggest that a court is precluded from granting summary judgment to alandowner on the ground that the condition complained of by the plaintiff was both open andobvious and, as a matter of law, was not inherently dangerous…see see e.g., Gibbons v. Lido& Point Lookout Fire Dist., 293 A.D.2d 646, 740 N.Y.S.2d 440 [cement parking block on floor ofa firehouse]; Connor v. Taylor Rental Ctr., 278 A.D.2d 270, 718 N.Y.S.2d 605 [forklift in a markedstall in a parking lot]; Plessias v. Scalia Home for Funerals, 271 A.D.2d 423, 706 N.Y.S.2d 131[concrete parking divider]; Maravalli v. Home Depot U.S.A., 266 A.D.2d 437, 698 N.Y.S.2d 708[sink vanity on the floor of the store aisle]). In such circumstances, the condition which caused theaccident cannot fairly be attributed to any negligent maintenance of the property.
Note: In Robert Jones, Plaintiff-Appellant, v. Presbyterian Hospital, 2004 N.Y. App. Div.LEXIS 657, the injured party misjudged the number of steps he had to descend to go from the rowin which his seat was located to the aisle. The appellate court held these steps did not pose areasonably foreseeable hazard, so the open and obvious doctrine was irrelevant. It was not claimedthat the stairs were structurally unsafe, that debris on them caused the fall, that the carpeting wastattered in a way that snagged the injured party's foot, that the lighting was inadequate, or that theinjured party was unaware he had to step down from his row to the aisle. The owners had no dutyto warn of or otherwise protect the injured party from this condition that posed no reasonablyforeseeable hazard. They had no obligation to warn the injured party of the precise number of stepsseparating the two levels. The injured party's proposed remedies, such as placing illumination ormarkings on the steps, were, in reality, warnings which were not required. It would be sheerspeculation for a jury to find these would have prevented the injured party from falling, and heshowed no issue of fact as to whether a lack of such markings proximately caused his fall.
As with all owners of property with staircases, these defendants had no obligation to warn plaintiffof the precise number of steps separating the two levels
Under these particular circumstances it would be sheer speculation for a jury to find that theproposed "remedies"/warnings would have prevented this plaintiff from falling.
Dissent: Judge would have reversed and let the case go to a jury…good analysis and cites interestinglaw such as:
The doctrine provides that a landowner has no duty to warn of an open and obvious danger; it appliesto defects that would be noticed by "any observer reasonably using his or her senses" (Tagle v.Jakob, 97 NY2d, 165, 170, 763 N.E.2d 107, 737 N.Y.S.2d 331). The theory behind the doctrine isthis: Where a danger is readily apparent as a matter of common sense, "there should be no liabilityfor failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent asa warning would have provided." Put differently, when a warning would have added nothing to theuser's appreciation of the danger, no duty to warn exists as no benefit would be gained by requiringa warning.
Note: In Eladio Martinez, plaintiff-respondent, v. City of New York, 307 A.D.2d 989, theplaintiff cyclist was injured when he rode his bicycle into a tree well that had been hidden from viewby cars parked on the sidewalk. He sued the city and nearly everyone he believed might beresponsible for the parked cars, including the lessor and lessee of the premises on which the carswere parked. The lessor and lessee added a third-party claim against a contractor whose employeesallegedly often parked on the sidewalk. The appellate court held that summary judgment was onlyproper in the case of the city (a ruling that the bicyclist had not challenged), because it could not beexpected to warn of a condition that would have been open and obvious if the cars had not blockedthe cyclist's view. Triable issues existed as to whether all the other parties, including the contractor,parked cars on the sidewalk or had such control of the premises that they should have known of andprevented the illegal practice.
While landowners have a duty to prevent the occurrence of foreseeable injuries on their premises,they are not obligated to warn against a condition on their land that could be readily observed by thereasonable use of one's senses. Readily observable conditions do not pose an unreasonable risk ofinjury" ( Dawson v. Cafiero, 292 A.D.2d 488, 739 N.Y.S.2d 190; see Bush v. Brentwood VeteransWar Mem., 302 A.D.2d 546, 755 N.Y.S.2d 99). Here, the City established a prima facie case thatthe tree well was an open and obvious condition, which was only obscured by the cars parked on thesidewalk. The City's prima facie showing was not refuted
Note: This case was decided before Cupo…after Cupo who knows..
Sports:
In LaSalvia v. City of New York, 305 A.D.2d 267, the complaint seeks damages for injuriesallegedly sustained by plaintiff when he tripped on a schoolyard pavement defect while playing anunsupervised game of touch football. Under the circumstances herein, on a day and time when schoolwas not in session, the 22-year-old plaintiff assumed the risks inherent in the schoolyard touchfootball game, including any obvious risk posed by the irregular playing surface (see Sykes v.County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973), and since the defect wasnot concealed but was plainly visible (cf. Ellis v. City of New York, 281 A.D.2d 177, 721 N.Y.S.2d525), the motion court properly found the defect sufficiently obvious to warrant summary judgmentdismissing the complaint (see Furgang v. Club Med, 299 A.D.2d 162, 753 N.Y.S.2d 359, lv denied99 N.Y.2d 504, 785 N.E.2d 733, 755 N.Y.S.2d 711; McKey v. City of New York, 234 A.D.2d 114,650 N.Y.S.2d 706).
Note: In Sykes v. County of Erie, supra, the Plaintiff injured his knee when he stepped into arecessed drain near the free throw line while playing basketball on an outdoor court owned bydefendant. Although the doctrine of assumption of risk does not exculpate a landowner from liabilityfor ordinary negligence in maintaining premises, there is no evidence that the drain was defectiveor improperly maintained. In dismissing the complaint, the Appellate Division majority correctlyheld that the risks of playing upon an irregular surface are inherent in outdoor basketball activities(such as occurred here) and that the condition of the court was open and obvious. Thus, thecomplaint was properly dismissed on the ground that plaintiff had assumed the risk of the injury (see, Morgan v. State of New York, 90 NY2d 471; Maddox v. City of New York, 66 NY2d 270; Turcotte v. Fell, 68 NY2d 432).
5 Standard of proof in MVA with emergency vehicles:
Important sections of the Law:
VTL 101 Authorized emergency vehicle…
Every ambulance, police vehicle or bicycle, correction vehicle, fire vehicle, civil defense emergencyvehicle, emergency ambulance service vehicle, blood delivery vehicle, county emergency medicalservices vehicle, environmental emergency response vehicle, sanitation patrol vehicle, hazardousmaterials emergency vehicle and ordnance disposal vehicle of the armed forces of the United States.
VTL 114b Emergency operation
The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged intransporting a sick or injured person, transporting prisoners, delivering blood or blood products ina situation involving an imminent health risk, pursuing an actual or suspected violator of the law,or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm offire, actual or potential release of hazardous materials or other emergency. Emergency operation shallnot include returning from such service.
VTL 115a Fire vehicle
Every vehicle operated for fire service purposes owned and identified as being owned by the state,a public authority, a county, town, city, village or fire district, or a fire corporation subject to theprovisions of subdivision (e) of section fourteen hundred two of the not-for-profit corporation lawor a fire company as defined in section one hundred of the general municipal law. Any of thefollowing vehicles shall be fire vehicles only for the purpose of section one hundred one of thischapter:
a vehicle operated by officials of the office of fire prevention and control in the department of state,
a vehicle ordinarily operated by a chief or assistant chief of a fire department, or a county or deputycounty fire coordinator, or county or assistant county fire marshal, or town or assistant town firecoordinator, or such vehicle when operated in an official capacity by or under the direction of suchperson, and
a vehicle specially designed and equipped for firefighting purposes which is regularly used forfirefighting purposes by a firefighting unit on property used for industrial, institutional orcommercial purposes and which vehicle is owned by the owner or lessee of such property.
VTL 125 Motor vehicles
Every vehicle operated or driven upon a public highway which is propelled by any power other thanmuscular power, except (a) electrically-driven mobility assistance devices operated or driven by aperson with a disability, (b) vehicles which run only upon rails or tracks, (c) snowmobiles as definedin article forty-seven of this chapter, and (d) all terrain vehicles as defined in article forty-eight-Bof this chapter. For the purposes of title four, the term motor vehicle shall exclude fire and policevehicles other than ambulances. For the purposes of titles four and five the term motor vehicles shallexclude farm type tractors and all terrain type vehicles used exclusively for agricultural purposes,or for snow plowing, other than for hire, farm equipment, including self-propelled machines usedexclusively in growing, harvesting or handling farm produce, and self-propelled caterpillar orcrawler-type equipment while being operated on the contract site.
VTL 132 a Police vehicle
Every vehicle owned by the state, a public authority, a county, town, city or village, and operated bythe police department or law enforcement agency of such governmental unit or by a constable orpolice constable of a town when acting pursuant to his special duties. Any other vehicle operated bya chief or deputy or assistant chief of a police department, a sheriff, undersheriff or regular deputysheriff, and a vehicle owned and operated by the law enforcement unit of a public or privatecorporation authorized by law to maintain a unit for the enforcement of law on the property of suchcorporation shall be a police vehicle only for the purposes of section one hundred one of this chapter.
VTL311(2) Definitions…motor vehicle
Definitions As used in this article: (2.) The term "motor vehicle" shall be defined as in section onehundred twenty-five of this chapter, except that it shall also include trailers, semi-trailers and tractorsother than tractors used exclusively for agricultural purposes, and shall exclude fire and policevehicles, farm equipment, including self-propelled machines used exclusively in growing, harvestingor handling farm produce, tractors used exclusively for agricultural purposes, or for snowplowingother than for hire, and self-propelled caterpillar or crawler-type equipment while being operated onthe contract site.
VTL 1104 Authorized emergency vehicles
Authorized emergency vehicles
(a) The driver of an authorized emergency vehicle, when involved in an emergency operation,may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may:
1.Stop, stand or park irrespective of the provisions of this title;
2.Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may benecessary for safe operation;
3.Exceed the maximum speed limits so long as he does not endanger life or property;
4.Disregard regulations governing directions of movement or turning in specified directions.
(c) Except for an authorized emergency vehicle operated as a police vehicle or bicycle, theexemptions herein granted to an authorized emergency vehicle shall apply only when audible signalsare sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaustwhistle as may be reasonably necessary, and when the vehicle is equipped with at least one lightedlamp so that from any direction, under normal atmospheric conditions from a distance of fivehundred feet from such vehicle, at least one red light will be displayed and visible.
(d) An authorized emergency vehicle operated as a police, sheriff or deputy sheriff vehicle mayexceed the maximum speed limits for the purpose of calibrating such vehicles' speedometer.Notwithstanding any other law, rule or regulation to the contrary, a police, sheriff or deputy sheriffbicycle operated as an authorized emergency vehicle shall not be prohibited from using any sidewalk,highway, street or roadway during an emergency operation.
(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle fromthe duty to drive with due regard for the safety of all persons, nor shall such provisions protect thedriver from the consequences of his reckless disregard for the safety of others.
(f) Notwithstanding any other law, rule or regulation to the contrary, an ambulance operated inthe course of an emergency shall not be prohibited from using any highway, street or roadway;provided, however, that an authority having jurisdiction over any such highway, street or roadwaymay specifically prohibit travel thereon by ambulances if such authority shall deem such travel tobe extremely hazardous and would endanger patients being transported thereby.
In Saarinen v. Kerr and Village of Massena, 84 N.Y.2d 494 (1994), the Plaintiff bystander andcodefendant suspected lawbreaker were injured in an accident that occurred while an officer waspursuing the suspected lawbreaker. The complaint and cross claims against the Village were for (1)vicarious liability for injuries that resulted from the officer's lack of due care in pursuing thesuspected lawbreaker's vehicle and for (2) the Village's own negligence in failing to adequately trainthe officer or to adopt an adequate pursuit policy. The court reversed the appellate court's decisionand granted the Village's summary judgment motion. The court held that N.Y. Veh. & Traf. Law §1104(e) precluded the imposition of liability for otherwise privileged conduct except where theconduct rose to the level of reckless disregard for the safety of others. This required more than ashowing of a lack of due care. The court found no inferences of reckless disregard, no showing ofhow any of the alleged inadequacies in the officer's training was proximately related to the accident,and no proof that it was the officer's conduct rather than the suspected lawbreaker's erratic and illegaldriving that was the proximate cause of the accident.
Drivers of emergency vehicles have a primary obligation to respond quickly to preserve life andproperty and to enforce the criminal laws. Consequently, in recognition of these drivers' specialneeds, the Legislature enacted Vehicle and Traffic Law § 1104, which qualifiedly exempts themfrom certain traffic laws when they are "involved in an emergency operation. The accidentunderlying this action, occurred on a public road in the Village of Massena on March 4, 1988.According to plaintiff's submissions, Officer McGown, a seven-year veteran of the Village policeforce, was sitting in his patrol car at about 10:00 P.M. when he observed a dark colored van that fish-tailed and squealed its tires as it made a turn onto a Village street. Having decided almostimmediately to stop the vehicle, McGown followed it and watched its driver, subsequently identifiedas defendant Kerr, run a stop sign at a speed of approximately 30 m.p.h. and then proceed into anearby shopping center parking lot.
At that point, McGown activated his patrol car's red emergency lights. Rather than stopping, the vanpulled away. McGown pursued the van behind the shopping center's stores and turned on hisvehicle's siren. The van continued out onto a public road and drove into the lane for oncomingtraffic, passing a red traffic light at the intersection. Concluding that the van was not going to stopin response to his show of authority, McGown reached for his radio with the intention of callingheadquarters for help. His efforts were interrupted by the sound of a crash as Kerr's van collided witha vehicle driven by plaintiff. Subsequent tests revealed that Kerr had been drinking on the night ofthe accident.
According to McGown's testimony, he had been driving at a rate of approximately 60 m.p.h. by thetime the chase terminated in the accident. The posted speed limit in the area was 35 m.p.h. The nightwas clear, but the roads were wet. McGown observed no traffic on the road until he approached theintersection at which the accident took place. However, there were several fast food restaurants anda V.F.W. meeting hall in the vicinity, and all but one of the restaurants were open. The entire pursuitlasted no more than one or two minutes.
The court held that a police officer's conduct in pursuing a suspected lawbreaker may not form thebasis of civil liability to an injured bystander unless the officer acted in reckless disregard for thesafety of others (VTL § 1104(e)). This standard demands more than a showing of a lack of "due careunder the circumstances"--the showing typically associated with ordinary negligence claims. Itrequires evidence that "the actor has intentionally done an act of an unreasonable characterin disregard of a known or obvious risk that was so great as to make it highly probable thatharm would follow" and has done so with conscious indifference to the outcome.
Note: If the jury determines officer was not reckless there is no liability for the municipality. If thejury determines the officer was reckless then there is no apportionment between municipality andthe perpetrator. CPLR § 1602(6) not applicable since police vehicle excluded by definition of motorvehicle in VTL § 125.
In William McAndrews v. City of New York, 100 N.Y.2d 603, the court held despite defendant'stimely request, the trial court did not adequately charge the jury concerning the standard of conductactionable under Vehicle & Traffic Law § 1104(e). The statutory recklessness standard is exacting(see Saarinen v. Kerr, 84 N.Y.2d 494, 501-502, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994]) andthe court's failure to define that standard for the jury was not harmless error under the circumstancesof this case.
In effect the court has instructed the trial court that they must define recklessness as defined inSaarinen which says….this standard demands more than a showing of a lack of "due care under thecircumstances"--the showing typically associated with ordinary negligence claims. It requiresevidence that the actor has intentionally done an act of an unreasonable character in disregard of aknown or obvious risk that was so great as to make it highly probable that harm would follow andhas done so with conscious indifference to the outcome.
Note:
In Criscione v. City of New York, 97 N.Y.2d 152 (2001), the court held as a matter of law that thedriver of the patrol car was involved in an "emergency operation." Consequently, his actions shouldnot have been measured by the jury under ordinary negligence standards, but rather by the "recklessdisregard" standard of section 1104 (e) of the Vehicle and Traffic Law. The case involved an actionto recover for injuries sustained in the course of responding to a dispatch call, on appeal, the policeofficer and the city asked the appellate court to consider whether a police officer who was drivinga patrol car in response to a 911 dispatch call to investigate a family dispute was engaged in theemergency operation of a vehicle as defined in N.Y. Veh. & Traf. Law § 114-b. The appellate courtfound as a matter of law that the driver was involved in an "emergency operation." Consequently,his actions should not have been measured by the jury under ordinary negligence standards, butrather by the "reckless disregard" standard of N.Y. Veh. & Traf. Law § 1104(e). Further, theappellate court found that whether the police officer violated a New York City Police Departmentpolicy in responding to that type of call would merely be an important, although not dispositive,factor in determining whether he had acted recklessly.
Three provisions of the Vehicle and Traffic Law underlie the issue in this appeal.
Vehicle and Traffic Law § 101 sets forth the categories of vehicles designated as an "authorizedemergency vehicle," and police vehicles are specifically listed in the statute.
Vehicle and Traffic Law § 114-b describes the vehicular operations that constitute "emergencyoperation":
The operation, or parking, of an authorized emergency vehicle, when such vehicle is engagedin transporting a sick or injured person, transporting prisoners, delivering blood or bloodproducts in a situation involving an imminent health risk, pursuing an actual or suspectedviolator of the law, or responding to, or working or assisting at the scene of an accident,disaster, police call, alarm of fire, actual or potential release of hazardous materials or otheremergency. Emergency operation shall not include returning from such service" (emphasisadded).
Vehicle and Traffic Law § 1104
Furthermore, the driver of an "authorized emergency vehicle" engaged in an "emergency operation"is exempt from certain "rules of the road" under Vehicle and Traffic Law § 1104 (see, Riley vCounty of Broome, 95 NY2d 455, 462 [2000]). But this qualified privilege does not relieve thedriver "from the duty to drive with due regard for the safety of all persons, nor shall [it] protect thedriver from the consequences of his [or her] reckless disregard for the safety of others" ( Vehicle andTraffic Law § 1104 [e] [emphasis added]).
Section 101 classifies a "police vehicle" as an "authorized emergency vehicle." Among the particularcircumstances that the Legislature specified in section 114-b as qualifying as an "emergencyoperation" is the operation of an authorized emergency vehicle "when such vehicle is * * *responding to * * * [a] police call." Although section 114-b does not define the phrase "police call,"we see no reason why a radio call to officers on patrol by a police dispatcher regarding a 911complaint should not fall squarely within the plain meaning of that term, nor do we discern anylegislative intent to vary the definition of "emergency operation" based on individual policedepartment incident classifications. Given the legislative determination that a police dispatch callis an "emergency operation," it is irrelevant whether the officers believed that the 10-52 call was anemergency or how the Police Department categorized this type of call. Thus, Supreme Court erredin failing to conclude that Perrone was involved in an "emergency operation" as a matter of law, andto instruct the jury that Vehicle and Traffic Law § 1104 grants a driver of an "authorized emergencyvehicle[ ]" a qualified privilege to disregard the ordinary rules of prudent and responsible driving,subject to a "reckless disregard" standard of liability.
Note: even though the police office did not consider the call he was on to be an emergency under thestatute it is an emergency operation as a matter of law and therefore the emergency doctrine applies.
In Valentine v. City of New York, 57 N.Y.2d 932 (1982), the court affirmed the Appellate Divisionand said as a matter of law, insufficient time had elapsed after the end of this heavy storm to holdthe city liable for failure to clear the sidewalks of snow and ice.
The Appellate Division set forth the City’s obligations with regard to snow and ice in Valentine v.City of New York, 86 A.D.2d 381; aff’d, 57 N.Y.2d 932 (1982). A severe winter ice storm on Dec16, 1973-midnight Dec 17, 1973 left three inches of snow and icy mass on the ground in New YorkCity. The storm was described as the second worst ice storm in 50 years. Approximately 30 hoursafter the storm, the plaintiff slipped and fell on a sidewalk of a residential street. She suffered injuriesto her left ankle. In the period between the end of the storm and the plaintiff’s fall (30 ¼ hours), thetemperature did not rise above freezing (17*) and the ice had to be chopped away with ice picks. Theplaintiff brought an action against New York City for negligence because it failed to remove the iceand snow from the city sidewalk. After a trial, New York City was found negligent for the plaintiff’sinjuries. The city appealed. The court reversed the judgment of the Supreme Court and dismissedthe complaint. As a matter of law, an insufficient time had elapsed between the end of the snowfalland the accident to enable the city, in the exercise of reasonable care, to remove the snow and icefrom the sidewalk.
The court set forth two basic standards to be considered: the time elapsed between the accident andthe end of the storm, and whether the condition prevailing at the accident location was “unusual anddangerous”. The court considered the amount of snow that had fallen, the temperature subsequentto the storm and the priorities set by the City in cleaning the snow (For example: Primary andSecondary roads come before sidewalks as well as other areas before residential areas which havethe lowest priority). The court noted that the City’s snow removal operations extended over 6,401miles of streets and 11,420 miles of sidewalks broken down into 58 snow removal districts. Thecourt also noted the number of men (labor) used for snow removal, the amount of overtime (capital),and the amount of equipment and salt used.
A dangerous condition must be unusual or exceptional as compared with the conditions ordinarilyexisting during the winter in that locality. Comparisons should be between the conditions of thestreet or sidewalk causing the fall and the conditions ordinarily existing in the municipality duringthe winter season.
The court also noted, that a municipality which has passed an ordinance requiring the abuttingproperty owner to remove snow from the sidewalk, may wait a reasonable period of time for theproperty owner to perform their obligation. (See Administrative Code § 16-123)….see Garricks
Note: The rule of thumb is that priority is set by the importance of the area being cleared to thesmooth running of the city. Before Adm Code 7-210(b) a property owner might not be responsiblefor snow removal but now property owners are subject to snow removal and possible liability
In Beverly Garricks v. City of New York, 300 A.D.2d 247 aff’d 1 N.Y.3d 22 (2002), plaintiffslipped in the snow (February 6,1995 @ 9:00AM) 24 hours after a 10 inch snow fall on February4,1995 (less than 2 days as per the dissent) on thick ice that formed due to cold spell that followedthe storm. The average temperature was below freezing for that 2 day period following the snowstorm. The court said, the reasonableness of the City’s actions in failing to clear the sidewalk wherethe plaintiff slipped and fell for 24 hours after the City had finished plowing the abutting streetsfollowing a 10 inch snowfall was properly left for the jury to determine. There was a strong dissent,which shows that cases were previously dismissed where there was 30 hours or more elapsed timefrom the cessation of the storm as per Valentine and that in this case the city acted reasonably. TheCity showed it prioritized its snow removal efforts into three phases: main highways and arterieswere cleared first, then streets with bus stops and streets that connect residential areas with mainroads and, finally, residential streets. Crosswalk cleaning, which involved the manual shoveling ofcrosswalks, hydrants and bus stops, was generally not undertaken until completion of snow removalfrom roadways. The City offered testimony that its snow removal operations in response to the stormbegan on February 4 and continued through February 10, 1995. The snow removal district thatencompassed the area where plaintiff fell included 308 miles of plow routes and 635 crosswalks. Thesanitation supervisor who oversaw operations for this district stated that, during the three days fromFebruary 4 to February 6, the City deployed all available workers and equipment, including saltspreaders, plows and front-end loaders. In addition, temporary workers were hired for crosswalkclearing. Streets in all three phases had been cleared by the early morning hours of February 5 (atleast 24 hours before plaintiff's sidewalk accident) and work on the crosswalks was ongoing. Whenthe City's counsel attempted to question the sanitation supervisor about New York CityAdministrative Code § 16-123, which imposes a duty on landowners to clear snow from sidewalksabutting their property, Supreme Court sustained plaintiff's objection. Section 16-123 of the NewYork City Administrative Code provides, in pertinent part, that "every owner * * * or other person,having charge of any building or lot of ground in the city, abutting upon any street where thesidewalk is paved, shall, within four hours after the snow ceases to fall * * * remove the snow or ice* * * from the sidewalk and gutter, the time between nine post meridian and seven ante meridian notbeing included in the above period of four hours." The Court of Appeals held that where amunicipality has enacted an ordinance requiring abutting landowners to remove snow fromsidewalks "it may, before taking any action itself, wait a reasonable time for them to perform theirlegal duty". Evidence of a municipality's reliance on property owners to perform this duty and of itsefforts to enforce the ordinance within a reasonable time is relevant in determining whether themunicipality breached its duty.
On appeal New York City contended, that the trial court erred in refusing to permit the jury toconsider a property owner's duty to remove snow and ice from abutting sidewalks in determiningwhether the city reasonably responded to a snowstorm. The city further alleged that its reliance onproperty owners' compliance with the ordinance was a relevant factor for the jury to weigh inassessing whether the city was liable. The court of appeals agreed. Had the trial court allowed thecity to introduce testimony as to the existence of the ordinance, it would have been proper for thejury to consider the ordinance and whatever efforts the city undertook in relation to the ordinancein reaching its verdict. Such evidence, if offered in support of the city's theory that its response tothe storm was reasonable, could have affected the outcome of the trial, and therefore its exclusionwas not harmless error.
Note: The City anticipated that the court would dismiss as a matter of law but it did not. The casewas reversed based on Valentine in that the City was allowed to wait for the homeowners to removethe snow before the city started its operations. Courts have long recognized that where a municipalityhas enacted an ordinance requiring abutting landowners to remove snow from sidewalks "it may,before taking any action itself, wait a reasonable time for them to perform their legal duty". Valentine v. City of New York, 86 A.D.2d 381, 387.
In Booth v. City of New York, 707 N.Y.S.2d 488 (2d Dept. 2000), plaintiff slipped and fell on apublic sidewalk that abutted property owned and leased by defendants. An owner or lessee ofproperty abutting a public sidewalk has no duty to remove ice and snow that naturally accumulatesupon the sidewalk in front of the premises unless a statute specifically imposes liability. In this case,where no such statute existed, liability was not imposed because it was not shown that the owner ortenant made the condition on the sidewalk more hazardous by removing the ice and snow.
Note: Now must see new PWN Law which covers snow removal
In Brugman v. City of New York, 102 A.D.2d 413, the Plaintiff sanitation employee filed apersonal injury suit in which he claims that in the course of his employment he tripped and fell overa tree stump or pole which defendant city had caused or allowed to exist on a public sidewalk.During the pendency of that suit, plaintiff also applied for accidental disability retirement benefitswhich were thrice denied on the basis that the medical records which indicated that his disability wascaused from a work-related injury that the injury was sustained as a consequence of heavy lifting andnot an accident. There was no indication in such reports, nor any claim by plaintiff, that he hadtripped upon a tree trunk or pole and had twisted his back. The claim, rather, was that the twistingof the back was occasioned by the lifting of heavy sanitation bags. The Medical Board also reviewedthe line-of-duty report and the records of the hospital, which did not disclose a claim of accident orother external event. The Medical Board concluded, upon these records, that plaintiff was performinghis usual occupation at the time of the incident, which included heavy lifting. The Medical Boardconcluded that the plaintiff had been injured in lifting a heavy bag and not by tripping overa tree stump. In the face of that finding, plaintiff again sought reconsideration. A third reviewresulted in reaffirmation of the prior decisions on October 1, 1981. The Board of Trustees approvedthe Medical Board's report and recommendation on November 26, 1981. Plaintiff instituted a CPLRarticle 78 proceeding to annul the determination of the Board of Trustees denying his application foraccidental disability retirement benefits. Justice Ascione confirmed the administrative finding anddismissed the petition.
The trial court in the personal injury action allowed defendant to amend its answer to plead collateralestoppel, and then granted defendant summary judgment on that defense. On appeal, the courtaffirmed, holding that the factual issues in each case were identical, and had already been decidedagainst plaintiff after a full opportunity to be heard. The court held that plaintiff failed to meet hisburden of establishing that he did not have a full and fair opportunity to contest the issue. The courtheld that plaintiff, having been afforded an opportunity to prove the fact that his injury was not work-related, was not entitled to re-litigate the same issue, albeit against a different adversary.
The same factual question is common to the administrative proceeding and this action: Did plaintifffall over a tree stump and thus sustain the injuries of which he complains?
It is well settled that the doctrines of res judicata and collateral estoppel generally are applicable tothe determinations of administrative agencies rendered pursuant to their adjudicatory functions( Werner v. State of New York, 53 NY2d 346; Matter of Evans v. Monaghan, 306 NY 312). Indetermining whether the doctrine of collateral estoppel applies to such determination, it must beshown that there is an identity of parties and of issues. The party against whom collateral estoppelis sought to be asserted must have been afforded a full and fair opportunity to litigate in a priorproceeding the issue sought to be resolved in the subsequent proceeding ( Matter of Newsday, Inc.v. Ross, 80 AD2d 1).
The determination by the Retirement System, where the issue was whether plaintiff was entitled toaccidental disability benefits as opposed to ordinary disability benefits, turned on whether the injurysuffered resulted from plaintiff's ordinary work or resulted from an external, unexpected and unusualevent. This question was reviewed on three occasions at plaintiff's request with an opportunity tosubmit additional evidence, which he did.
The factors instrumental in determining whether a party has had his day in court include the size ofthe claim, the forum of the prior litigation, the use of initiative, the expense of litigation, thecompetence and experience of counsel, and the availability of new evidence. Applying thesestandards, it is notable that plaintiff was represented by counsel who performed extensive legal workon his behalf in asserting his claim before the Medical Board and Board of Trustees, which wassubstantial since it would affect plaintiff's retirement allowance.
Here, the issue is factual, whether the plaintiff fell over a tree stump. All of the information andrecords were before the Medical Board three times, the Board of Trustees twice, followed by reviewat Special Term and this court in the prior action and proceeding. No rights were denied to theplaintiff. He was examined by the Medical Board twice and his attorney made detailed submissionsto that Board and to the Board of Trustees. He was afforded every opportunity to be heard and hewas heard. He also had and utilized the opportunity for judicial review. This was sufficient forcollateral estoppel.
Note: Collateral estoppel, or issue preclusion, gives conclusive effect to an administrative agency'squasi-judicial determination when two basic conditions are met: (1) the issue sought to be precludedis identical to a material issue necessarily decided by the administrative agency in a prior proceeding;and (2) there was a full and fair opportunity to contest this issue in the administrative tribunal. Theproponent of collateral estoppel must show identity of the issue, while the opponent mustdemonstrate the absence of a full and fair opportunity to litigate.
In Pisano v. New York City Board of Education, 2002 NY Slip Op 40040U affirmed 303 A.D.2d735 (2003), the plaintiff teacher allegedly was injured when she slipped and fell inside the schoolwhere she was working. After applying for medical disability, the medical board determined that theteacher was not entitled to a "line of duty" injury status. In accordance with her collective bargainingagreement, the teacher requested a medical review by an independent medical arbitrator. Thisarbitrator concluded that the medical board acted correctly in rejecting the teacher's accident as thecause of her disability. The injured party then commenced a proceeding pursuant to C.P.L.R. art. 75to vacate the arbitrator's determination. The trial court in that action rejected the petition anddismissed the proceeding. Plaintiffs then brought the instant personal injury action. The appellatecourt held that the trial court properly concluded that plaintiffs were collaterally estopped frompursuing their negligence action based upon the prior determination by the medical board that theteacher's alleged disability was not caused by her accident in the school. The appellate court held thatplaintiffs' remaining contentions were without merit.The Supreme Court properly concluded that theplaintiffs were collaterally estopped from pursuing their negligence action based upon the priordetermination by the Medical Board that the plaintiff's alleged disability was not caused by heraccident (see Brugman v. City of New York, 64 N.Y.2d 1011).
8 Spontaneous Acts in School related claims
General Rule: When an injury occurs to a student because of the act of another student, the issue ofthe school’s liability turns on whether it was foreseeable that such an act would occur in the absenceof adequate supervision. In other words even if the supervision were inadequate if the act was notforeseeable there is no liability. You need to determine if the inadequate supervision was a proximatecause of the injury. If the inadequate supervision were not a proximate cause of the injury there isno liability. In reaching a determination of this issue, one of the factors to consider is whether similaracts have previously occurred, thereby placing the school on notice of the need for careful, continualsupervision of the class to prevent any recurrence. Additionally, once an incident has begun, aquestion arises as to whether the act which caused the injury could have been prevented had adequatesupervision been present to stop the incident before the particular act occurred. Thus, the elementof time comes into play in determining the foreseeability of the act which caused the injury.
When the Board is sued for lack of supervision because of the behavioral problems of a student, theplaintiff must look to see if the board had (1) notice of the student’s propensity to commit bad acts,such as assault. In addition the plaintiff must look to see if the (2) presence of a teacher or aide couldhave prevented the incident. In addition the plaintiff must also look to see for (3) how long theincident took place.
In Ohman v. Board of Education, 300 N.Y. 306, a student was severely injured when anotherstudent flipped a pencil across the classroom and struck him in the eye. The accident occurred whilethe teacher in charge was temporarily absent from the classroom for the purpose of sorting andstoring in a corridor closet schoolroom supplies, which was a routine task forming part of theteacher's usual duties. The student and his parents filed suit against defendants, and the jury returneda verdict in favor of the student and his parents. The appellate court, however, dismissed thecomplaint on the law. On appeal, the court held, in affirming, that the student failed to establish anynegligence because no danger was reasonably foreseeable in the absence of a prior occurrence of anyact indicating a need for extraordinary vigilance.
The court held there was no proof of similar accidents, nor can anyone seriously contend that a pencilin the hands of a school pupil is a dangerous instrumentality. This is one of those events which couldoccur equally as well in the presence of the teacher as during her absence.
In addition the court stated even if we assume without conceding that the teacher was negligent inleaving the room for any purpose, for any length of time, it does not follow that the board is liablefor the consequences of an unforeseen act of a third party. This would constitute the board an insurer,and we would no longer have the need to consider the applicability of long-established and well-recognized rules of common-law negligence. By such standards, a teacher may be charged only withreasonable care such as a parent of ordinary prudence would exercise under comparablecircumstances. Proper supervision depends largely on the circumstances attending the event but sofar as the cases indicate, there has been no departure from the usual rules of negligence. For instance,when defective or dangerous equipment or paraphernalia is used, the teacher or board is charged withforeseeability and negligence may be predicated thereon.
POINT X
General Rule: the rule bars recovery in negligence for injuries sustained by a firefighter while in theline of duty..[but see GML§ 205a(fire)/ §205e(police)]..In response to the common law rule thelegislature passed GML §205a which creates a cause of action for firefighters/and GML §205e whichcreates a cause of action for police who suffer line of duty injuries directly or indirectly caused bydefendants violation of relevant statutes and regulations. The 1996 amendments to GML §§ 205a/eadded a new subdivision 3 which provides injured firefighters/police with a right of recoveryregardless of whether the injury…is caused by the violation of a provision which codifies a commonlaw duty and regardless of whether the injury…is caused by the violation of a provision prohibitingactivities or