Plaintiff’s Premises Liability Action Dismissed Where the Alleged Dangerous Condition is Inherent and Incidental to the Nature of the Property
In Preston v. Castle Pointe, LLC, et al. (4th Dept. June 7, 2019), the Executor of the decedent’s estate commenced an action seeking damages for wrongful death and conscious pain and suffering because of the decedent allegedly drowning in a retention pond on defendant’s property wherein a senior citizen independent living facility was located. The decedent resided at the aforementioned independent living facility.
The record contained no evidence as to how the decedent ended up in the pond but the Medical Examiner concluded that the decedent collapsed into the pond and died of drowning. In opposition to defendant’s summary judgment motion, the plaintiff attempted to raise an issue of fact by arguing that the decedent may have slipped on the pond’s sloping bank causing him to enter the water.
Although a landowner has a duty to exercise reasonable care in maintaining its property, the Fourth Department held that “a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.”
Therefore, the Fourth Department held that the defendants met their initial burden of proof by demonstrating that “[a] slippery condition on a [pond’s bank] is necessarily incidental to its nature and location near a body of water.”
Despite submitting an engineering expert affidavit in opposition to defendant’s motion, the Fourth Department held that the plaintiff failed to raise an issue of fact. Further, the Fourth Department opined that the expert’s affidavit failed in many respects to suggest that his conclusion was based on any studies or regulations nor was the “expert’s conclusion that the [retention pond] was defective and unsafe…supported by foundational facts, such as a deviation from industry standards or statistics showing the frequency of injuries caused by the lack of safety measures proposed by the expert.”
As a result, the Fourth Department upheld the trial court’s dismissal of the complaint as against all defendants.
Summary Judgment Awarded in Favor of Defendant in a Case Involving a Doorjamb
In Amara v. Derico of East Amherst Corp., (4th Dept. June 14, 2019), the plaintiffs commenced an action on behalf of their minor daughter who was allegedly injured at defendant’s restaurant when her finger became caught in between a bathroom stall door and the doorjamb. The trial court granted defendant’s summary judgment motion, which the plaintiffs appealed.
On appeal, the Fourth Department noted that the defendant met its prima facie burden of proof by establishing that the stall door was not an “unreasonably dangerous condition.” Furthermore, plaintiffs failed to raise an issue of fact as their “expert’s affidavit was speculative and not sufficiently probative.” Due to the fact that the alleged hazard was open and obvious, the Fourth Department held that the defendant had no duty to warn. As a result, the Fourth Department affirmed the trial court’s granting of summary judgment in favor of the defendant.
In a Split Decision, the Fourth Department Set Aside the Jury’s Verdict in Favor of Defendant as Against the Weight of the Evidence
In Monzon v. Porter, (4th Dept. June 14, 2019), the plaintiff commenced a medical malpractice against defendant for injuries she allegedly sustained as a result of the defendant failing to adequately inspect her bowel during aortobifemoral bypass surgery. At the conclusion of trial, the jury found in favor of the defendant finding that he did not depart from the accepted standard of medical care during plaintiff’s surgery. The plaintiff’s motion for judgment notwithstanding the verdict and to set aside the verdict as against the weight of the evidence was denied by the trial court.
On appeal, however, the Fourth Department held that the jury verdict was against the weight of the evidence. On the verdict sheet, the jury was asked to answer the following question: “Did [defendant] depart from accepted standards of medical care by not conducting a focused inspection of the entire bowel during the April 17, 2013 aortobifemoral bypass surgery?” At the parties’ request, the court instructed the jury that the alleged departure from medical care should be based upon whether a “focused inspection” of the bowel was required.
Neither the defendant, his expert witness nor plaintiff’s expert witness ever defined what was meant by “focused inspection” during the trial. Additionally, these same witnesses never testified as to whether the lack of such an inspection was a deviation from the standard of care. The Fourth Department rejected defendant’s argument that “focused inspection” was the equivalent to the medical term “running the bowel” which was the source of much testimony during the trial.
The Fourth Department opined that “running the bowel” is a term of art with a precise definition such that the parties and court must have meant something different when they elected to include the term “focused inspection” on the verdict sheet. Therefore, the fact that the parties’ experts disagreed as to whether the standard of care required defendant to run the bowel was irrelevant since such a deviation was to be measured as to whether a “focused inspection” was required.
The Fourth Department held that the evidence greatly preponderates in plaintiff’s favor especially since defendant’s own expert testified that the defendant was required to “inspect the bowel” following aortobifemoral bypass surgery. At the very least, the Fourth Department noted that such a “focused inspection” would have included a careful visualization of the entire bowel.
The Fourth Department pointed out that the defendant readily admitted that not only did he not observe the bowel, he could not have done so because he returned the bowel into the plaintiff’s abdomen. “In not observing the bowel, the defendant plainly could not have conducted a carful visualization of the body parts as it was returned to plaintiff’s body; therefore he was plainly not performing a ‘focused inspection.’”
None of the experts who testified at trial provide testimony as to whether “focused inspection” was within the standard of care or whether such a failure to perform a “focused inspection” deviated from the standard of care. As a result, the jury was provided a verdict sheet containing a standard of care that was not based upon any trial evidence. Therefore, the Fourth Department held that the jury’s verdict was against the weight of the evidence and ordered a new trial.
Plaintiff’s Motion for Summary Judgment on the Issue of Serious Injury is Denied
In Smith v. Hamasaki, (4th Dept. June 28, 2019), the plaintiff sought compensation for injuries she sustained as a result of a motor vehicle accident. The plaintiff moved for partial summary judgment on the issue of serious injury, which was granted by the trial court.
On appeal, however, the Fourth Department reversed holding that plaintiff’s own submissions raised questions of fact as to whether she sustained a serious injury to her cervical spine under the categories of permanent consequential limitation of use and significant limitation of use. Plaintiff’s expert opined that she had limitations in range of motion that were related to the accident. However, these conclusions were based on some records where it was noted that the plaintiff had full range of motion and any injuries were caused by degeneration.
Furthermore, even if plaintiff met her burden of proof the defendants raised a triable issue of fact through their own expert’s affidavit. The defendant’s expert opined that two years after the subject accident there existed no objective medical evidence to support a finding that the plaintiff suffered from an orthopedic condition. Therefore, the trial court was reversed and plaintiff’s motion for partial summary judgment was denied.
Plaintiff’s Estoppel Defense Fails
In Cushing v. Allstate Fire and Casualty Ins. Co., (4th Dept. June 28, 2019), the plaintiff alleged that Allstate breached its insurance policy by refusing to provide coverage for various losses she sustained to her home in 2014. The plaintiff appealed the dismissal of her cause of action, which sought replacement costs under the terms of her policy to recover storm damage done to her roof.
The Fourth Department made it clear that the terms of the insurance policy were clear and unambiguous, which required Allstate to pay the “actual cash value” of such damage. Allstate was required to pay for additional repair or replacement costs only if the plaintiff made such repairs within two years form the date of loss.
The Appellate Division held that Allstate met its burden of proof by establishing that it paid over to the plaintiff the actual value of the damage done to the roof and that the plaintiff did not make any further repairs within the two-year period.
In opposition, the plaintiff failed to meet her burden as to the applicability of the defense of estoppel. “To establish the applicability of estoppel, plaintiff  had to establish that defendant, by its conduct, lulled plaintiff  into sleeping on [her] rights.” The plaintiff failed to submit any evidence or identify any conduct of Allstate that dissuaded her from repairing or replacing the roof during the two-year period.
To the contrary, the Fourth Department opined that by providing plaintiff with the actual cash value of the roof damage, Allstate “enabled plaintiff to commence the repair or rebuilding process during the two-year period.” Therefore, the Fourth Department upheld the trial court dismissal of this cause of action.