Speculative Opinion of Expert Does Not Raise Triable Issue of Fact
In Slattery v. Tops Markets, LLC, 2015 WL 5446354, (4th Dept., Feb. 10, 2017) the decedent plaintiff sued for damages as a result of a slip and fall in a Tops Markets grocery store. The defendant moved for summary judgment dismissing the complaint. The lower Court denied the motion and the defendant appealed.
Whether a condition is a dangerous defect is often a question of fact for the jury. However, summary judgment is appropriate when a plaintiff fails to prove that the condition is actually defective or dangerous.
In Slattery, the plaintiff tripped over a rug that had been laid flat over a “recessed mat system” at the entrance of the store. Through testimony of the plaintiff, photographs and video of the incident, the defendant established that the rug or placement of the rug was not an inherently dangerous condition. The plaintiff’s expert examined the area approximately two and a half years after the accident and the Court held that it was insufficient to raise a triable issue of fact regarding the condition of the area at the time of the fall.
Therefore, the Court held that the plaintiff failed to raise a triable issue of fact to defeat the defendant’s summary judgment motion. The Fourth Department unanimously reversed on the law and dismissed the complaint.
Snow Plow Contractor Has No Duty to the Plaintiff Where the Property Manager Extensively Supervised the Snow Removal Operations and the Obligations of the Contractor.
In Waters v. Ciminelli Development Company, 2017 WL 460421, (4th Dept., Feb. 3, 2017), a case that was handled by Kevin E. Loftus in our office, the plaintiff moved for damages after she was allegedly injured after a slip and fall on ice.
The plaintiff, Jackueline Waters, allegedly fell on ice in a parking lot owned by 205 Park Club Lane, LLC. The parking lot was managed by the Ciminelli Development Group and JB Landscaping and Snowplowing LLC was contracted for snow and ice removal.
The defendants moved for summary judgment dismissing the complaint. The lower court denied the motion by both defendants. LB Landscaping appealed the lower court’s denial under theories established in the Espinal case.
A snow plowing company may be liable for injuries that occur only if: (1) it fails to exercise reasonable care in performance of their duties and create the condition; (2) the injured party detrimentally relies on the continued performance of the contracting party’s duties; or (3) the snow plowing company entirely displaces the other party’s duty to maintain the premises safely.
The Appellate Division unanimously modified on the law by granting the part of the motion that sought dismissal against defendant JB Landscaping and Snowplowing LLC and granted in part the motion seeking dismissal of the complaint against the defendants Ciminelli Development Company Inc., and 205 Park Club Lane, LLC. Claims that defendants Ciminelli Development Company Inc., and 205 Park Club Lane, LLC created or had actual notice of the allegedly dangerous condition were dismissed.
Here, the issue was whether LB Landscaping entirely displaced Ciminelli Development Group from their duty to maintain the premises. LB Landscaping established that the contract with Ciminelli Development Group did not entirely displace Ciminelli’s responsibility to maintain the lot. Here, LB Landscaping’s contract with Ciminelli did not entirely alleviate their responsibility to maintain the lot because of their intensive overseeing process of LB Landscaping’s work. Ciminelli had the right to request additional services, selected depth of the snow for removal, directed LB Landscaping’s placement of the snow removal and required monthly snow log submissions. LB Landscaping did not entirely displace Ciminelli and, therefore, LB Landscaping could not be liable directly to the plaintiff.
Therefore, the Court reversed the lower court’s decision and dismissed the complaint against LB Landscaping.
Reasonable Delay in Serving Notice of Claim Did Not Prejudice Defendant
In King v. Niagara Falls Water Authority and Niagara Falls Water Board, 2017 WL 460426, (4th Dept., Feb. 3, 2017) the defendants appealed the lower court’s decision which allowed the plaintiff to serve a late notice of claim. The Appellate Division unanimously affirmed the decision.
On April 18, 2014, the plaintiff was injured in a motor vehicle accident after his vehicle allegedly struck a depression in the roadway in Niagara Falls. A timely notice of claim was timely served against the City of Niagara Falls. As a result of a FOIL request in February 2015, the plaintiff learned that the Niagara Falls Water Board was the general contractor for a construction project that allegedly caused the depression. On April 17, 2015, the plaintiff applied for leave to serve a late notice of claim against the Niagara Falls Water Board.
When a town or municipality is sued, a notice of claim is required within 90 days of the incident. The moving party may serve a late notice of claim if granted leave by the Court. There are several factors that the Court considers in allowing a moving party to serve a late notice of claim. The three main factors include: (1) whether the claimant has shown a reasonable excuse for the delay; (2) whether the governmental entity had actual knowledge of the facts surrounding the claim within 90 days of its accrual; and (3) whether the delay would cause substantial prejudice to the governmental entity.
Here, the Court held that the plaintiff demonstrated a reasonable excuse for the delay because the plaintiff had timely served the notice of claim upon the City and then promptly applied for leave to serve the Niagara Falls Water Board after discovering that it was allegedly involved in causing the defect. Additionally, the Niagara Falls Water Board could not show that it was substantially prejudiced by the delay. Furthermore, because it was the general contractor on the site, the Court held that it would possess documents and other information related to the construction project and was not only knowledgeable about the alleged defect but would not have been prejudiced in the discovery process. Therefore, the lower Court’s decision was affirmed.
Knowledge within a Different Municipal Department Does Not Impute Knowledge to Other Departments to Establish Actual or Constructive Notice
In Blake v. County of Wyoming, 2017 WL 459973, (4th Dept., Feb. 3, 2017), the plaintiff sought damages after she allegedly sustained injuries after she was bitten by a dog at an animal shelter. The defendant moved for summary judgment which was denied by the lower court. The defendant appealed this decision.
The plaintiff volunteered at the County of Wyoming animal shelter as a dog walker. The dog that was involved in this incident was surrendered to the shelter approximately two weeks prior to the incident. The County of Wyoming argued that it should not be found liable under the theory of strict liability because it lacked actual or constructive knowledge of the dog’s vicious propensities. The plaintiff attempted to argue that the staff was aware that the dog had previously knocked over a small child and that the County of Wyoming Health Department was aware that the dog had previously bitten a child.
The Appellate Division reversed the denial of summary judgment and found in favor of the defendant. The Court held that knocking over a small child was insufficient to raise an issue of fact regarding the propensity to bite. Although the dog’s tendency to knock a person over could demonstrate a “proclivity to act in a way that puts others at risk of harm,” the plaintiff’s injuries were caused by a bite which is not akin to the dog’s previous actions.
Additionally, the plaintiff provided notes that the dog may have previously bitten an 8-year-old girl. After that incident, a County employee of the Wyoming County Health Department was required to examine the dog for signs of rabies. The Court held that the knowledge of the County Health Department could not be imputed to the County Animal Shelter because municipalities often have numerous employees assigned to separate and diverse agencies and there was nothing to show an overlap with the scope of the authorities between the two departments which would prove that the County Animal Shelter had knowledge of the dog’s actions.
Therefore, the Court reversed the lower court’s decision denying the summary judgment motion.
Prepared by Rebecca R. Josefiak, Esq.