Evidence

Summary Judgment Denied For Vehicle Struck From Behind Where Proximate Cause Was An Issue (NY)

The general rule in New York for rear-end accidents with a vehicle that is stopped or stopping is that there is a rebuttable presumption of negligence on the part of the driver that hits the vehicle in front of them. Accidents involving multiple vehicles can involve competing testimony and questions of fact that can make summary judgment difficult. For example, in Houslin v. New York City Tr. Auth., plaintiff was a passenger in a vehicle which was struck by another vehicle, then collided with the rear of a bus owned by the MTA and NYC Transit Authority. The Transit defendants moved for summary judgment on the basis that the bus was struck from behind and therefore they had no liability. The Supreme Court denied the motion on the basis that fact issues existed as to the proximate cause of the accident and liability of the Transit defendants. The Appellate Division, Second Department affirmed, finding that the Supreme Court properly denied the Transit defendants’ motion, as “there can be more than one proximate cause of an accident.” The Court found that given the conflicting deposition testimony as to the cause of the accident, issues of fact remained as to whether the bus had been operated negligently, and if so, whether that negligence contributed at all to the accident. The takeaway from the Houslin case is that summary judgment is not guaranteed in a rear-end hit case where there is conflicting deposition testimony and evidence that the driver struck from behind had some degree of negligence in the accident. Thank you to Rebecca Pasternak for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

Defendants’ Conflicting Accounts Held Fatal To Their Summary Judgment Motion (NY)

When moving for summary judgment in a New York negligence action, the moving defendant has the burden of establishing, prima facie, that he or she was not at fault in the happening of accident. Evidence of fault on the part of the defendant can defeat the motion and can come from the defendant’s own proofs. For example, in Charles v. American Dream Coaches, a vehicle operated by plaintiff collided with a bus owned by one of the defendants. Plaintiff pleaded guilty to the traffic offense of driving or operating a motor vehicle in an unsafe manner but still sued the bus owner and driver. The Supreme Court granted defendants motion for summary judgment and plaintiff appealed. The Appellate Division, Second Department reversed, citing the general rule regarding a defendant’s summary judgment burden and finding that defendants had “failed to establish, prima facie, that they were free from fault in the happening of the accident.” In so holding, the court observed that the defendants had submitted conflicting accounts of how the accident happened and failed to eliminate triable issues of fact as to their fault. The Court also held that the fact that the plaintiff pleaded guilty to a traffic offense did not conclusively establish that she was negligent and that a person who pleads guilty to a traffic offense is permitted to explain the reasons for the plea to a jury. The Charles case serves as a reminder that summary judgment is not appropriate where evidence of a defendant’s fault exists, and that care should be taken to avoid submitting conflicting evidence in connection with such a motion. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Not So Fast: The Importance Of Checking Your Evidence (NY)

There is nothing worse for a litigator than having evidence that you think will guarantee success for your client …only to discover that it isn’t actually helpful. In the recent case of Cheese v. Ferguson, the defendant faced this avoidable problem. In that case, plaintiff and defendant were involved in a car accident on the Long Island Expressway. The Defendant moved for summary judgement based on dash cam video that showed that for twelve seconds preceding the accident, the defendant was driving safely in their own lane. This was enough for the Supreme Court to grant the motion and dismiss defendant from the suit. However, the Second Department reversed after taking a closer look at the dash cam footage. The court observed that for at least five seconds before the accident, plaintiff’s vehicle was pointed toward defendant’s lane of traffic and that the defendant was looking to the left before the impact. The court found that such footage contradicts the defendant’s claim that plaintiff’s vehicle cut into his lane “suddenly and without warning” and thus he had no duty to avoid the accident. Accordingly, the defendant failed to eliminate triable issues of fact as to whether the defendant was the proximate cause of the accident, and the court vacated the summary judgement order. Defendants and their attorneys must always be mindful of the positive and negative impact of evidence used in personal injury litigation. The Cheese decision highlights the importance of defense counsel fully reviewing and understanding such evidence, particularly video footage. Thought should be given as to whether to use this evidence where it contains both exculpatory and incriminating images. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Routine Security Sweeps Can Create An Issue Of Fact In Premises Liability Cases (NY)

In New York, landowners and business owners have a duty to maintain their properties in a reasonably safe condition. In seeking summary judgment in a premises liability case, they have the initial burden of establishing that they did not create or have actual or constructive notice of a dangerous condition on the premises. In Andrews v. JCP Groceries, Inc., the Appellate Division, Fourth Department addressed these issues in a case in which plaintiff was injured after slipping on a wet supermarket floor. Defendant moved for summary judgment on the issue of notice and the trial court granted the motion. The Fourth Department initially found that the defendant met its initial burden of establishing that it did not have actual notice of any dangerous condition by submitting evidence that it did not receive any complaints concerning the area where plaintiff fell and was unaware of any water in that location prior to the accident. The court also found that defendant met its initial burden of establishing that it did not create the dangerous condition. However, the court also found that the Supreme Court erred in granting the motion with respect to the claim that defendant had constructive notice of the condition. In so holding, the court found that issues of fact existed as to whether the wet floor “was visible and apparent and existed for a sufficient length of time prior to plaintiff’s fall to permit [defendant’s employees] to discover and remedy it.” The court added that: “Although defendant submitted the affidavit and deposition testimony of its former store manager, in which he indicated that store employees routinely frequented the area and would have looked for dangerous conditions, defendant’s evidence failed to establish that the employees actually performed any security sweeps on the day of the incident, or that anyone actually inspected the area in question before plaintiff’s fall. Consequently, defendant failed to eliminate all issues of fact with respect to constructive notice.” Accordingly, the court modified the summary judgment order and reinstated the complaint. The Andrews decision serves as a reminder that when alleging lack of constructive notice, a premises liability defendant must proffer specific evidence of security/safety sweeps on the day of a plaintiff’s alleged accident and in the specific location of the alleged accident. The Appellate Division has made it clear that evidence of “routine” security sweeps alone will not be sufficient to establish lack of constructive notice. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Surveillance Footage Key To Establishing Open And Obvious Defense (NY)

New York courts generally hold that a landowner has no duty to warn of open and obvious dangers. In Lebron v. City of New York, the Appellate Division, Second Department recently addressed whether an inspection pit that plaintiff fell into on the defendants’ property was an open and obvious, and not inherently, dangerous. The defendants introduced surveillance of the accident as evidence of the nature of the condition, but the Supreme Court denied their motion for summary judgment.

On appeal, the Second Department observed that: “A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property”. However, “there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” or “where the condition on the property is inherent or incidental to the nature of the property and could be reasonably anticipated by those using it”. Based on this framework and the evidence provided by the defendants, the Second Department reversed and held that the inspection pit that plaintiff fell into was an open and obvious condition and the Supreme Court should have granted defendants’ motion for summary judgment.

The Lebron decision serves as a reminder that the open and obvious defense can serve as a complete defense in applicable cases and that video surveillance of an accident can be beneficial to establish this defense.

Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.

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Good Record Keeping Stressed In New York Premises Liability Case (NY)

We have previously reported on the importance of good record keeping to help preserve a potential notice defense in New York premises liability cases. In Buffalino v. XSport Fitness, the Appellate Division, Second Department recently addressed these issues in a case in which the plaintiff was injured when the arm and foot pedal of an elliptical machine she was using came loose. She alleged that the gym owners had notice of the dangerous condition. The trial court disagreed and awarded summary judgment to the gym.

On appeal, the Second Department observed that “[T]o meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred. It added that when a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.

The Second Department reversed, holding that the defendant failed to provide “specific” evidence as to when the elliptical machine was last inspected, and that “mere references” to the testing of the equipment is insufficient to establish lack of constructive notice. The court also held that the defendant failed to establish that the dangerous condition was latent.

This decision serves as a reminder that as a commercial property owner, it is important to maintain inspection and maintenance records as the failure to do so could result in the loss of a potentially significant defense in a premises liability lawsuit. General testimony as to inspections, absent supporting documents, will not carry the day in court.

Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.

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Speculative Evidence Is Not Sufficient In A New York Slip And Fall Case (NY)

To prevail on a summary judgment motion in a slip and fall action, a defendant has the initial burden of showing that it (a) did not create the hazardous condition and (b) did not have actual or constructive notice of its existence. In order to prove lack of constructive notice, a defendant must proffer evidence as to when the site was last cleaned or inspected prior to the accident. Conversely, a plaintiff may prove constructive notice by establishing that the alleged defect was visible, apparent, and existed for a sufficient length of time prior to the accident so that the defendant had time to discover and remedy it. However, a plaintiff’s claim will fail if their proofs are speculative, and they cannot satisfy the burden of proof with sufficient evidence.

These issues were addressed in the recent Bronx County decision of Torres v. Sanitation Salvage Corp., 73 Misc. 3d 1214(A), 154 N.Y.S.3d 218 (N.Y. Sup. Ct. 2021). Plaintiff in that case was allegedly injured when she slipped on fruit and vegetable residue on a ramp at the Hunts Point Terminal Market. The market was owned by the City of New York and leased to Hunts Point, which then leased individual units to various produce vendors, including plaintiff’s employer.

Hunts Point moved for summary judgment, asserting that it hired a sanitation service to clean the exterior areas of the market and that the area where plaintiff fell was cleaned just an hour prior to the accident. In her opposition, plaintiff argued that because her clothes were wet after the fall, a condition must have existed on the ramp that caused her to fall. However, the court determined that such evidence was insufficient to defeat the motion because there were no prior complaints made to Hunts Point and plaintiff testified at deposition that she never observed any residue in the area where she fell. Because plaintiff relied on “mere speculation” as to the cause of the fall and failed to show that the condition existed for a sufficient period of time prior to her accident, the court granted the motion and dismissed the claims against Hunts Point.

The takeaway from Torres is that a New York slip and fall plaintiff cannot rely on mere speculation to sustain their burden of proof and must have concrete evidence to establish the element of constructive notice.

Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Look Out Below–How Much Height Differential Is Required For A Falling Object Claim Under Labor Law 240(1)? (NY)

When a lawsuit alleges that a plaintiff’s injuries are caused by an object falling from the same relative height as plaintiff, does the claim satisfy the elevation hazard requirements of Labor Law §240(1)?

Liability under Labor Law §240(1) does not automatically apply just because an object fell and injured a worker. The law requires that a plaintiff prove that at the time the object fell, it was being hoisted or secured or “required securing for the purposes of the undertaking.” There is no bright line minimum height differential that determines whether an elevation hazard exits, but New York courts will consider the weight of the object and the amount of force it is capable of generating, even from a short descent.

In Melendez v. Brown-United, Inc., 2020 N.Y. Slip Op 50832(U) (July 2020 N.Y. Cnty), plaintiff was erecting a scaffold using 15ft long, 40-pound pipes to form the base of the scaffold. Immediately prior to the accident, plaintiff brought the pipe and lifted it into the base. Believing that another worker had tightened the pipe, plaintiff walked away and was hit in the head, neck, and shoulder by the pipe. The defendants moved for summary judgment arguing, among other things, that Labor Law §240(1) did not apply because the injury was not the result of an elevation-related risk.

The court disagreed, citing a Court of Appeals case which held that liability under Labor Law §240(1) is not precluded where the injured worker and the base of the falling object are at the same level. See Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10 (2011). The court held that defendants failed to establish that plaintiff’s work did not subject him to a “physically significant elevation differential.” Given the height and weight of the pipe that hit plaintiff, the court could not conclude that the elevation differential was “de minimis.” The court also held that the defendants failed to prove that the injury was not the direct consequence of their failure to provide adequate protection against the risk of injury or that other protective devices were not required.

The Melendez decision reinforces the rule that a falling object claim under Labor Law §240(1) does not always require a significant height differential. New York courts will examine the facts to determine whether the law applies in a case where a falling object only travels a short distance.

Thank you to Gabriella Scarmato for her contribution to this post. Please email Andrew Gibbs with any questions.

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Who Is Considered A Vehicle Owner Under New York Vehicle And Traffic Law §388? (NY)

In Walker v. Town of Webster, the Appellate Division, Fourth Department addressed whether a former vehicle owner was considered an owner for the purposes of liability under Vehicle and Traffic Law §388. Plaintiff in that case allegedly sustained personal injuries when he was struck by a vehicle operated by defendant Buck. However, plaintiff also sued defendant Osborn, who had transferred ownership of the vehicle several months before the accident, for vicarious liability under Vehicle and Traffic Law §388. Osborn moved for summary judgment on the grounds that he no longer owned the vehicle, and the motion was granted by the Supreme Court.

The Appellate Division reversed, finding that there was conflicting evidence as to the ownership of the vehicle. The court stated that “Vehicle and Traffic Law §388 (1) provides in relevant part that every “owner of a vehicle used or operated in this state shall be liable and responsible for . . . injuries to person or property resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner”. The statute further provides that an ” ‘owner’ shall be as defined in section one hundred twenty-eight” of the Vehicle and Traffic Law which in turn states that an owner is a “person, other than a lien holder, having the property in or title to a vehicle or vessel”. (citations omitted). The court explained that while Osborne provided evidence that the vehicle was registered to the co-defendant, New York State Department of Motor Vehicles records showed that the vehicle was still titled to Osborn. Given this conflicting evidence, summary judgment was not appropriate.

This decision serves as a reminder that in cases involving claims for vicarious liability under Vehicle and Traffic Law §388(1), the court will consider a vehicle’s title as evidence of ownership.

Thank you to Corey Morgenstern for his contribution to this post. Please e-mail Andrew Gibbs with any questions.

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Safety Devices And Proving Labor Law §240(1) Claims (NY)

I have fallen [through a hole] and can’t get up! Now what? When a plaintiff brings a Labor Law §240(1) claim for injuries sustained from falling through an unprotected opening, he or she must prove that they were exposed to an elevated related risk during construction and must present evidence as to which specific and identifiable safety device would have prevented the fall.

Labor Law §240(1) imposes a nondelegable duty on owners and general contractors to provide safety devices to protect workers from elevation related risks. These owners and contractors, and their agents, are responsible regardless of whether they supervise or control the work. A plaintiff’s own negligence will not provide a defense to a Labor Law §240(1) claim unless the plaintiff’s actions were the sole proximate cause of the accident.

In Cazho v. Urban Bldrs. Group, Inc., 2020 NY Slip Op 51039(U) (Bronx Cnty. September 11, 2020), the Supreme Court recently addressed these issues in a case where a construction worker was injured after falling through a hole in a roof intended to be the skylight. Plaintiff moved for summary judgment as to the defendant’s liability under Labor Law §240(1). The defendant argued, among other things, that the law should not apply because plaintiff caused the hole covering to be moved and failed to identify a specific safety device that could have prevented his fall per the rule established in Ortiz v. Varsity Holdings LLC, 18 N.Y.3d 335 (2011).

In granting plaintiff’s motion, the court held that the plaintiff met his burden of identifying a specific safety device under Ortiz, by showing that he was provided with a safety harness that was inadequate because there was no location where the harness could be secured. Plaintiff also pointed to evidence establishing that no other safety devices were used. The court held that although plaintiff’s unawareness of the hole may constitute comparative negligence, his recovery was not barred because the comparative negligence was not the sole proximate cause of the accident. In holding that plaintiff proved his Labor Law §240(1) claim, the court stressed that plaintiff was assigned to work on the roof, the skylight needed to be removed to complete the work, and plaintiff was not given instruction regarding the opening.

Thus, a plaintiff asserting a Labor Law §240(1) claim can meet the burden of proof by showing that he or she was not provided with a safety device or that the safety device provided was inadequate under the circumstances.

Thank you to Gabriella Scarmato for her contribution to this post. Please e-mail Andrew Gibbs with any questions.

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