Golfer’s Motion for Summary Judgment Denied
In Krych v. Bredenberg (4th Dept., 2019), plaintiff commenced an action seeking to recover damages for injuries he sustained while he was playing a round of golf and was struck by a golf ball hit by defendant. In affirming the lower court’s decision to deny defendant’s summary judgment motion on liability, the Appellate Division found that a golfer owes a duty of care in striking the golf ball but the mere fact that a golf ball did not travel in the intended direction does not establish a viable negligence claim. However, it further found that to provide an actionable theory of liability, a person injured by the missed hit golf ball must affirmatively show the golfer failed to exercise due care by providing proof that the golfer aimed so inaccurately as to cause an increased risk of harm.
Defendant’s own submissions raised a question of fact on whether he failed to exercise due care by hitting his golf ball from the tee so prematurely as to unreasonably increase the risk of hitting the plaintiff while the plaintiff was in the fairway playing the same hole as the defendant. As the plaintiff correctly argued, this case does not involve a shanked, sliced hook or inaccurately struck ball. Rather, the defendant teed off with his driver and he hit his golf ball straight down the center where it struck the plaintiff in the head as he retreated towards his golf cart following the audible call of “four!” from defendant’s group.
Defendant, a self-described as a “bogey” golfer, maintained that two of his playing partners had teed off before him and that the plaintiff’s group was 100 or 150 yards beyond where those drives landed, and that he believed plaintiff’s group was far enough from the tee-box that it would not likely hit him. Defendant also submitted, however, conflicting deposition testimony who believed that the defendant was the first to tee off in his group, because plaintiff had not previously heard any yells or any other golfers’ balls being hit.
Furthermore, the defendant testified at his deposition that he typically hits golf balls with a driver between 250 and 260 yards. Consequently, defendant’s submission raises an issue of fact whether he unreasonably increased the risk in striking the plaintiff while teeing off when plaintiff, who was visible in the fairway on the same hole, was still positioned well within the typical range of the defendant’s drive.
A Claim for Injuries Because of a Tenant’s Dog Bite Was Dismissed against the Landowner Where the Dog Resided
In Toher v. Duchnycz (4th Dept., 2019), the lower Court denied defendant’s motion for summary judgment dismissing the complaint. In reversing the lower Court’s decision, the Appellate Division held that where the plaintiff seeks damages for injuries that she sustained when she was bitten by a dog owned by the tenants living in a house owned by the defendant, it is well established that to recover against a landlord for injuries caused by a tenant’s dog, under a theory of strict liability, the plaintiff must demonstrate that the landlord:
- Had notice the dog was being harbored on the premises;
- Knew or should have known that the dog had vicious propensities; and
- Had sufficient control of the premises to allow the landlord to remove or confine the dog.
In this case, it is undisputed the defendant was aware that the dog was on the premises and that he could have required the tenants to remove or confine the dog. Nevertheless, the defendant met his burden in establishing as a matter of law that he lacked actual or constructive knowledge that his tenant’s dog had any vicious propensities.
To the extent that the plaintiff’s complaint includes a negligence cause of action, the Appellate Division found that cases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities and not under the theory of common law negligence.
Question of Fact as to Roofer’s Claims Pursuant to Labor Law §200
In Forman v. Carrier Corporation (4th Dept., 2019), plaintiff commenced an action to recover damages for injury he allegedly sustained when he fell off the roof of defendant’s building while performing asbestos remediation. The Appellate Division rejected the defendant’s contention that the trial Court improperly denied its motion for summary judgment based on Labor Law §200. Labor Law §200 is “a codification of the common law duty imposed on an owner that a general contractor should maintain a safe construction site.” Plaintiff alleges that a defective condition on the premises caused the accident. The defendant had the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of it to demonstrate its entitlement to summary judgment on those causes of action. Defendant failed to meet their burden and the Court properly denied its motion with respect to the common law negligence and Labor Law §200 causes of action.
Intoxication v. Indemnification
In Williams v. J. Luke Construction Co. (3rd Dept., 2019), plaintiff was injured when her vehicle was hit head-on by a truck driven by defendant James I. Price. At the time, Price was driving to a job site in a company vehicle owned by J. Luke Construction Company, LLC. To recover for injures related to the accident, and apparently not knowing exactly who owned the truck or employed Price, the plaintiff and her husband derivatively commenced the action against J. Luke, LLC, defendant J. Luke Construction, Inc. and defendant John Hodorowski, an owner of J. Luke, LLC, as well as Price.
In connection with the accident, Price was arrested for driving while intoxicated and vehicular assault in the second degree. Price was convicted of vehicular assault and sentenced to prison for 1-3 years. After he failed to answer or appear in this action, plaintiff successfully moved for a default judgment against Price on the issue of liability. Defendants moved for summary judgment dismissing the complaint against them, asserting, among other things, that Price was not a permissive user of the vehicle and not under their control at the time of the accident.
The lower Court partially granted the motion dismissing all claims against Hodorowski and the negligent hiring contention against J. Luke, but denying the motion to the remaining claims based on vicarious liability. The Appellate Division found that the trial Court was correct in that plaintiff alleged that defendants were vicariously liable for Price’s actions based on both the permissive use statute and the doctrine of respondeat superior.
The relevant statute provides that every owner of a vehicle or operator in this state shall be liable and responsible for death or injuries to a person or property resulting from the negligence or use in the operation of such vehicle in the business of such owner or otherwise, by a person using or operating the same vehicle with permission, express or implied, of such owner.
Vehicle and Traffic Law §388 imputes to the owner of a motor vehicle the negligence of one who operates it with the owner’s permission and creates a presumption that the vehicle is being operated with the owner’s consent, but the presumption may be rebutted by substantial evidence showing that the operation was without permission. An owner may face limitations on a driver’s permission to use a vehicle, such as granting consent only to drive in a particular area for a specific purpose, and use outside of the scope of permission negates the owner’s liability under this statute.
In their motion, defendants argued that permission for Price to drive the company vehicle was restricted by company policy prohibiting use of drugs. An owner may avoid liability under the statute if the driver exceeded the time, place and purpose of the use permitted by the owner. Furthermore, an owner may also be exonerated from liability where his permission was conditioned on driving in a particular locality only, or on instructions not to allow riders and an accident occurred after the breach of said restriction.
These types of restrictions are, of course, to be distinguished from limiting instructions that relate to the manner of operation, such as the speeding or careless operation of the car. In the latter situation, the owner is still held accountable. However, even when the owner may escape liability as unquestionable that unless evidence adduced has no merit whatsoever, the question of consent and authority is for the jury.
In their motion, the defendants argued that permission for Price to drive the company vehicle is restricted by company policies prohibiting possession or use of drugs or alcohol in company business or property, limiting use of company vehicles to business purposes and prohibiting an employee from reporting to work under the influence of alcohol.
The Appellate Division found that the policies in the record do not qualify as an unambiguous agreement restricting permissive use of company vehicles. In any event, the requirement to drive sober relates more closely than the manner of operation or how to drive rather than a restriction on who may operate the vehicle when and where they may do so. As defendants did not establish as a matter of law that Price was driving without permission at the time of the accident, they were not entitled to summary judgment on the Vehicle and Traffic Law §388 claim.
The record also contains a question of fact as to whether Price was within the scope of his employment at the time of the accident, which could render J. Luke vicariously liable under the doctrine of respondeat superior. That doctrine renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment. While the general rule is that an employee is not acting within the scope of his [or her] employment in traveling to and from work, even though he [or she] uses a motor vehicle furnished and owned by his [or her] employer to do so, if it is shown that the employer has some special interest or derives some special benefit from his [or her] employee’s use of the automobile in going to and from work, then a finding that the employee is acting within the scope of his [or her] employment is justified.” Whether an employee was acting within the scope of employment generally presents a question of fact for a jury to decide.
The evidence submitted by defendants in support of their motion failed to eliminate such a triable question of fact. Hodorowski terminated Price’s employment for violating company rules prohibiting use of alcohol and driving a company vehicle while intoxicated, indicating the employer’s belief that Price was not properly acting on behalf of the company. On the other hand, Price testified that J. Luke gave him a vehicle to use for business purposes, including traveling from home to work, and at the time of the accident, he was driving to a job site to begin work for the day. J. Luke arguably derived a benefit from Price’s ability to take the vehicle home because the truck contained a tool box for work tools, he used the truck to transport supplies to job sites from home improvement stores, the truck advertised the business by displaying the company name and logo, and he worked at construction job sites rather than a main office, so permitting him to take the vehicle home saved him from having to use work time to pick the company truck up and drop it off at a central location each day. Hodorowski testified that he knew Price would be going to the job site to work that morning and, except for his intoxication, there was nothing inappropriate about Price using the company vehicle to drive from his home to a job site.
Based on this evidence, defendants failed to establish their entitlement to summary judgment, as there was a factual question regarding whether Price was acting within the scope of his employment at the time of the accident.