Plaintiff Fails to Demonstrate as a Matter of Law that Defendant Officer Was Not Involved in an Emergency Operation at the Time of the Motor Vehicle Accident
In Torres-Cummings v. Niagara Falls Police Dept., (4th Dept. 2021), the plaintiff sustained injuries as a result of a collision with a police vehicle operated by Officer Kelly Rougeux. The plaintiff moved for summary judgment on the issue of negligence and serious injury as well as dismissal of defendants’ affirmative defenses. The trial court denied plaintiff’s motion to the extent it sought summary judgment on the issue of negligence and dismissing the affirmative defense of emergency operation under Vehicle and Traffic Law (“VTL”) §1104.
The plaintiff testified that as she approached the intersection from the northbound lane of traffic she had a green traffic light. The plaintiff testified she first saw the green traffic light when she was a half a block from the intersection and it remained green until the time of the collision. Officer Rougeux testified that she saw a green traffic light controlling the westbound travel lane when she was about fifty feet from the intersection.
As Officer Rougeux entered the intersection, she looked away from the road to assess a vehicle that was stopped at a gas station that she believed she had previously been pursuing. Due to the fact plaintiff’s submission included both her testimony and that of Officer Rougeux, the Fourth Department concluded that the plaintiff failed to establish defendant’s negligence as a matter of law. Further, the Fourth Department concluded the plaintiff failed to meet her burden of proof seeking dismissal of the affirmative defense of comparative fault.
With respect the affirmative defense brought under VTL §1104, “the reckless disregard standard of care in VTL §1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law §1104(b).”
The Fourth Department rejected plaintiff’s argument that because the vehicle which the officer believed she was pursuing had stopped, she, as a matter of law, was not “pursuing an actual or suspected violator of the law” within the meaning of VTL §114-b”. As such, the Fourth Department upheld the trial court’s denial of plaintiff’s motion to the extent it sought dismissal of the defendants’ affirmative defense pursuant to VTL §1104.
Defendants Are Entitled to Summary Judgment as There Was a Storm in Progress
In Marrero v. Oak-Michigan Hous. Dev. Fund Co., (4th Dept. 2021), the plaintiff sought damages for injuries she allegedly sustained when she slipped and fell on ice while walking on a sidewalk located on the property owned by defendant Oak-Michigan Housing Development Fund Company.
The Fourth Department held that the defendants were entitled to summary judgment since the defendants established the accident occurred during a storm in progress. Evidence that it was not precipitating or only lightly precipitating at the time of an accident is insufficient to raise a question of fact and does not render the storm in progress doctrine inapplicable.
The meteorological data submitted by the defendants established that approximately two inches of snow accumulated in the area of the accident between the late morning and afternoon and then freezing rain fell from 3:07 p.m. until 7:03 p.m. Additionally, light rain was reported from 7:03 p.m. throughout the remainder of the evening. Plaintiff’s accident occurred at 7:15 p.m.
This evidence was not contradicted by plaintiff’s expert. Moreover, “[e]ven if there was a lull or break in the storm around the time of plaintiff’s accident, [that would] not establish that [defendants] had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions.” Therefore, the defendants were entitled to summary judgment.
Defendants Failed to Show That the Alleged Dangerous Condition Was Open and Obvious and the Plaintiff Was the Sole Proximate Cause of His Injuries
In Stempien v. Walls, (4th Dept. 2021), the plaintiff sustained injuries when he fell 15 feet from the top of a seawall while attending a party at the defendants’ lakefront vacation home. The plaintiff testified that he fell near the unguarded and unlit rear corner of the property. The defendants’ backyard is approximately 20 feet above the lake and separated by a natural cliff that runs along the shoreline. Built into the cliff is a 15-foot high seawall which consists of two levels and a cement staircase granting access from the backyard to the lower platform of the seawall. The plaintiff fell off the seawall down to the beach below.
The Fourth Department held that the defendants failed to demonstrate as a matter of law that the cliff with the manmade seawall “constituted an open and obvious condition inherent or incidental to the nature of the property that could be reasonably anticipated by the plaintiff.”
Moreover, whether a condition is open and obvious “is generally fact-specific and depends on the circumstances of the case, and ‘something that ordinarily would be readily observable may be obscured by inadequate illumination.” Here, the Fourth Department concluded the defendants failed to meet their burden of establishing that with the lighting conditions the hazard posed by the cliff and seawall “was visible and obvious or presented a latent, dangerous condition.”
Additionally, the Fourth Department held that the defendants failed to establish that the plaintiff was the sole proximate cause of his fall. “’[U]nder the circumstances presented, it cannot be said that plaintiff’s conduct…was unforeseeable…[and rose] to such a level of culpability as to replace [defendants’] negligence as the cause of the accident.’”
The Fourth Department rejected defendants’ argument that the plaintiff speculated as to the cause of his fall. Although the plaintiff could not identify the precise cause of his fall, he established he fell in the immediate vicinity of uneven terrain at night “thereby rendering any other potential cause of [his] fall sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon logical inferences to be drawn from the evidence.”
Triable Issue of Fact as to Whether Defendant Had Constructive Notice Precluded Summary Judgment
In Arghittu-Atmekjiam v. The TJX Companies, Inc., (4th Dept. 2021), the plaintiff alleged injuries as a result of a slip-and-fall on water that occurred inside defendant’s store. The trial court granted defendant’s motion for summary judgment and dismissed the complaint. On appeal, the Fourth Department reversed and reinstated the complaint to the extent it alleged the defendant had constructive notice of the alleged dangerous condition.
On the issue of constructive notice, the Fourth Department held that in order to meet its burden the defendant was required to submit evidence “concerning when the area was last cleaned and inspected prior to the accident” and cannot “point to gaps in plaintiff’s case” to satisfy its burden.
Although the defendant submitted evidence that it hired a contractor to clean up hazards such as water on the floor, it did not submit evidence establishing when the area of plaintiff’s accident was last inspected thereby creating triable issues of fact. Additionally, the mere fact the plaintiff did not notice water on the floor prior to the time of the accident did not establish as a matter of law as to whether the condition was visible and apparent.
Therefore, the Fourth Department reversed the lower court and reinstated the complaint only to the extent it had been alleged the defendant had constructive notice of the alleged dangerous condition.
Prepared by Nicholas M. Hriczko