Appellate Division Affirms Jury Verdict on the Issue of Liability
In Douglas F. f/n/g of Alex F, an infant v. Williamsville Central School District, et al, (4th Dept., June 7, 2019), the plaintiff commenced a personal injury action for injuries sustained by his son after being struck in the head by an outward-swinging 90-pound wooden door from his right side at Mill Middle School. Plaintiff alleged that the defendants were negligent on the grounds of the outward-swinging door and the school’s policy of instructing students to walk on the right-hand side of the hallways.
The case proceeded to a bifurcated trial on the issue of liability, after which the jury returned a verdict in favor of the plaintiff. Defendants moved to set aside the verdict, which was denied by the trial court. On appeal to the Fourth Department, the defendants argued that the jury’s verdict was not supported by sufficient evidence because the only evidence of negligence presented by the plaintiff was the testimony of the plaintiff’s expert, which was described by defendants as “speculative” and “conclusory.”
The Appellate Division affirmed the holding of the trial court, noting the testimony of plaintiff’s expert that the use of outward-swinging doors is “not a safe and sound practice;” the testimony of the school’s principal that it would have been safer for the students in the hallway of the door opened inward; and the testimony of the district’s director of facilities that the door could have been modified to swing inward by his staff at minimal expense. Based on this testimony, as well as other evidence including photographs and architectural documents, the Court concluded that notwithstanding the testimony of the plaintiff’s expert, there was sufficient evidence to support the jury’s verdict that the outward-swinging door was not reasonably safe.
Defendants Fail To Meet Prima Facie Burden in Summary Judgment Motion
In Dunkle v. Vakoulich, et al (4th Dept., June 7, 2019), the plaintiff was allegedly injured after the tractor trailer he was driving rear-ended defendant’s tractor trailer. Defendants moved for summary judgment, arguing that plaintiff caused the accident by rear-ending the defendants’ vehicle. The motion was denied at the trial court, and an appeal to the Fourth Department ensued.
The Appellate Division held that the Supreme Court properly denied the defendants’ motion. Although the Court recognized that a rear-end collision with a stopped or stopping vehicle can create a prima facie case of negligence as to the operator of the moving vehicle, the defendants failed to meet their initial burden because their own submissions raised triable issues of fact as to whether the defendant was negligent. Specifically, the defendants’ submissions held questions of fact as to whether the defendant impermissibly stopped his tractor-trailer in plaintiff’s lane of travel and/or failed to turn on his hazard lights, either of which may have also been a proximate cause of the accident.
Motion for Summary Judgment Based on “Storm in Progress” Doctrine is Denied
In Barber v. Sorce, et al (4th Dept., June 7, 2019), plaintiff alleged to have sustained personal injuries after he slipped and fell on an icy driveway on premises owned by the defendant. Following discovery, the defendant moved for summary judgment, arguing that he could not be held liable for plaintiff’s accident under the storm in progress doctrine. In support of his motion, defendant submitted an expert affidavit from a meteorologist, which established that there had not been any precipitation for more than four hours prior to the time of the plaintiff’s accident.
The defendant’s motion was denied, and defendant appealed to the Appellate Division. In recognizing that the storm in progress doctrine does not apply in circumstances where the plaintiff’s accident occurs after a storm has passed and there is no longer any appreciable accumulation.
The Court also noted that the defendant failed to establish that he did not have constructive notice of the icy condition because he did not demonstrate that the condition was not visible or apparent or that it had not existed for a sufficient period of time for him to discover and remedy it.
Plaintiff’s Motion to Set Aside Defense Verdict for Rear-End Accident Denied
The plaintiff in Furch v. Klingler (4th Dept., June 7, 2019) commenced this action for injuries he sustained after being rear-ended while his vehicle was stopped for a red light. At trial, plaintiff testified that his vehicle was struck twice; the first time when the defendant struck his vehicle and a second time when the defendant was rear-ended by the third-party defendant, causing defendant’s vehicle to strike plaintiff’s vehicle again.
The defendant, however, testified that she brought her vehicle to a complete stop behind plaintiff’s vehicle, and that her vehicle struck plaintiff’s vehicle only once after the defendant was rear-ended by a non-party driver. The jury returned a verdict finding that the defendant was negligent, but that her negligence was not a substantial factor in causing the accident.
The plaintiff moved to set aside the jury’s verdict as against the weight of the evidence, which was denied by the trial court. The Fourth Department affirmed, holding that a fair interpretation of the evidence supported the jury’s determination that although the defendant may have been negligent in the operation of her vehicle, it was the non-party driver who was the sole proximate cause of the accident.