Slimy By Nature
In Griffin v. Anthony, et al (4th Dept., 2020), plaintiff commenced an action for injuries she sustained as a result of slipping and falling on a front porch of the home owned by the defendants. In support of plaintiff’s position, plaintiff took photographs of the porch approximately five weeks after the fall wherein the photographs depicted a green substance of the porch. In addition, the photographs depicted planters on the porch. Defendant testified at her deposition that she watered the plants that grew in the planters and that water could leak out of the planters onto the porch. In his affidavit, plaintiff’s expert opined that the water had saturated the wooden porch over a period of many months, leading to a development of microbial growth that would have become slippery in wet weather, such as what occurred on the day of the fall.
Plaintiff moved for partial summary judgment on the issue of negligence and defendants cross-moved for summary judgment dismissing the complaint. The Appellate Division found that the defendants did not have actual notice of an allegedly dangerous condition. However, with respect to a dangerous condition, the Appellate Division held that the defendants failed to meet their initial burden establishing the green substance on the porch was not a dangerous condition. Plaintiffs raised an issue of fact by submitting the affidavit of their expert stating that it was a microbial substance slippery in nature. As such, defendants could not establish entitlement to summary judgment with respect to the dangerous condition existing.
No Duty of Care Imputed for an Impromptu Arm Wrestling Match
In Gehrke v. Mustang Sally’s Spirits and Grill, et al (4th Dept., 2020), plaintiff commenced an action seeking damages for injuries sustained during an arm wrestling competition that was initiated with one of the defendant’s employees when the two were in a strip club owned by the defendants. Plaintiff asserted a cause of action for negligence based on theories of Respondeat Superior and premises liability. Defendants moved for summary judgment dismissing the complaint on the grounds that the employee was acting outside the scope of his employment at the time of the incident and defendants did not owe plaintiff a duty of care under the theory of premises liability.
Although it is generally a question for the jury whether an employee is acting within the scope of employment, an employer cannot be liable as a matter of law under a theory of Respondeat Superior if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business. The employee’s act of arm wrestling was not within the scope of his employment nor was it reasonable foreseeable and as such defendants were entitled to summary judgment.
Further, in reversing the lower court’s decision the Appellate Division found that the defendant’s motion for summary judgment under the theory of premises liability should have been granted as the defendants did not owe the plaintiff a duty of care in an impromptu arm wrestling contest.
Reduction in Workers Compensation Lien Found to be Inappropriate
In Carcione v. Essex Homes of WNY, et al, (4th Dept., 2020) plaintiff commenced an action seeking damages for an injury he sustained in a work related accident on November 4, 2008. As a result of the injury, Hartford, the Worker’s Compensation carrier for the plaintiff’s employer, paid benefits to the plaintiff and claimed a lien in the amount of those payments. Plaintiff moved for an order to reduce the lien and Supreme Court, in effect, granted the motion.
Although it was undisputed plaintiff had filed only one Worker’s Compensation claim which stemmed from the November 4, 2008 injury, and Hartford had provided previous Worker’s Compensation benefits solely pursuant to that claim, the Court determined that the majority of those benefit payments related to injuries plaintiff reportedly sustained after the November 4, 2008 for which plaintiff did not submit a Worker’s Compensation claim. The Supreme Court therefore reduced the Worker’s Compensation lien to the amount of benefits that the Court determined were paid by Hartford with respect to plaintiff’s November 4, 2008 injury.
The Worker’s Compensation carrier appealed and the Appellate Division found that it is undisputed that Hartford made payments to the plaintiff solely with respect to its Worker’s Compensation claim for the November 4, 2008 injury, and indeed, plaintiff filed no other Worker’s Compensation claim for which benefits were paid, and as such, found the reduction of the lien was improper.
Where the Sidewalk Ends… (And Lawsuits Begin)
In Beagle v. City of Buffalo, et al, (4th Dept., 2020), plaintiff commenced an action seeking damages for injuries she allegedly sustained when she tripped and fell on a defective sidewalk in the City of Buffalo that was owned by co-defendant, Gikas, and leased to defendant Milkie’s on Elmwood, Inc.
The parties do not dispute that at the time of the incident, two of the sidewalks slabs were elevated by the roots of a nearby tree owned by the City. At some time before the accident, a cold patch repair was performed, covering the area between the two sidewalk slabs with asphalt. Nevertheless, on the date of plaintiff’s accident, the sidewalk slabs remained elevated.
At the conclusion of discovery, the Gikas and Milkie’s defendants moved for summary judgment seeking dismissal of the complaint and all cross-claims. The City thereafter moved for summary judgment seeking dismissal of the complaint. Supreme Court granted the Gikas and Milkie’s defendants’ motion but denied the City’s motion. The City appealed. The Appellate Division found that with respect to the Gikas and Milkie’s defendants’ motion, it is well established that abutting landlord and tenant are not liable for injuries sustained as a result of a defective sidewalk unless the Special Use Doctrine applies, or there is a local ordinance charging them with the duty to maintain and repair the sidewalk and imposing liability for injuries as a result of their failure to do so. Gikas and Milkie’s established as a matter of law that the Special Use Doctrine does not apply and that they did not affirmatively create the alleged defective condition. The Code of the City of Buffalo §413-50(a) specifically imposes on owners and occupants of any lands fronting any abutting street that any occupants of the property have a duty to maintain and repair the sidewalk, and their failure to do so will result in liability for injuries through the use of that sidewalk. As such, their dismissals were reversed.
Contrary to the defendant Gikas and Milkie’s contentions that duty to maintain and repair extensive damage caused by the roots of a tree owned by the City, whereas here the local ordinance contains no exceptions to the duty imposed on the abutting landowners to maintain the sidewalk, even if the alleged dangerous condition was created by a root extending from the City property. The fact that a different section of the Code prohibits anyone from the City from performing all asphalt repairs does not absolve the property defendants from liability under §413-50(a), inasmuch as the Code does permit landowners to reconstruct sidewalks after obtaining the appropriate permit from the City.
With respect to the City’s motion, the City contends that the plaintiff’s failure to plead in her complaint that the City had prior written notice of the alleged defect in the sidewalk is fatal to her action. It is well settled here that for a municipality that has enacted a prior written notice provision, compliance with said provision is a condition precedent to any tort action against the municipality. Contrary to the contentions of the plaintiff, a municipality’s actual notice of a dangerous condition as it exists in this case does not avoid the notice requirement. The Appellate Division nonetheless rejected the City’s contention. The Court of Appeals has recognized two exceptions to the statutory rule requiring prior written notice, namely where the locality created the defect or hazard as an affirmative act or negligence, and where a special use confirms a special benefit upon the locality.
Here, plaintiff invoked the affirmative negligence exception by alleging in her complaint that the City created the dangerous condition. The exception requires evidence that the municipality affirmatively created the defect through an act of negligence. The exception is limited to work by the City that immediately results in the existence of a dangerous condition. It does not apply to conditions that develop over time. The Appellate Division found that the evidence submitted by Gikas and Milkie’s in support of their motion, which was then incorporated into the City’s motion, raised triable issues of fact as to whether the City performed the cold patch repair to the area sometime before the plaintiff’s accident, and whether the condition on the sidewalk on the day of the plaintiff’s accident was the same as when the cold patch was first applied.
The Appellate Division thus concluded that the City failed to establish as a matter of law that it had not affirmatively created the dangerous condition or that the dangerous condition was due solely to conditions that developed over time. As such, the Appellate Division found that the City’s motion was properly denied.
Prepared by Katy M. Hedges