New York’s Storm In Progress Rule Requires Evidence Of Precipitation (NY)
Under New York’s “storm in progress” rule, “a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.” However, in order for this rule to apply, courts have required defendants to prove that precipitation occurred at or near the time of the accident. For example, in Bodoff v. Cedarhurst Park Corp., plaintiff slipped and fell on ice and the defendants moved for summary judgment, arguing that the storm in progress rule applied. The Supreme Court denied the motion on the basis that fact issues existed as to whether the rule applied under the circumstances. The Appellate Division, Second Department agreed and affirmed the decision, finding that the defendants had failed to establish, prima facie, that there was a storm in progress at the time of the accident. In so holding, the Court noted that the defendants’ certified meteorological data and Affidavit from a meteorologist established that only trace amounts of precipitation, totaling less than one-tenth of an inch, fell during the morning of the date of the accident, and that there was no snowfall on the day prior to the incident. The other evidence in the case, including deposition testimony, also presented triable issues of fact as to whether any precipitation occurred at or near the time that plaintiff slipped and fell so the trial court’s denial of summary judgment under the rule was proper. The Bodoff decision confirms that a defendant seeking to assert a defense under the “storm in progress” rule must have evidence of precipitation in the form of snow, sleet, or freezing rain at or near the time of an accident. The lack of such evidence will likely result in the failure of the defense. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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Open And Obvious Condition Of Exterior Step Extinguished Defendant’s Liability (NY)
Generally, a New York landowner has a duty to maintain his or her property in a reasonably safe condition. However, there is no duty to warn of or protect against conditions that are not inherently dangerous and are “open and obvious.” A condition is deemed “open and obvious” if it is readily observable by those reasonably using their senses given the surrounding conditions at the time of the alleged accident. The resolution of this issue depends on the specific facts of each case. In Martinez v. Fairfield Hills E., LLC, the Appellate Division, Second Department recently addressed these issues in a case where plaintiff alleged that she was injured while descending exterior steps on the defendant’s premises. The lower court granted the defendant’s motion for summary judgment, finding that the condition of the step upon which the plaintiff allegedly fell was both open and obvious and not inherently dangerous. The Second Department affirmed, finding that that the condition of the step was readily observable had plaintiff reasonably used her senses given the conditions at the time of the alleged accident. The Court based this holding on plaintiff’s deposition testimony in which she stated that she ascended the step moments before her alleged accident without incident, that the accident took place on a sunny day, and there was nothing obstructing her view of the step. The takeaway from Martinez is that premises defendants should explore an “open and obvious” defense where the allegedly dangerous condition was readily observable to a plaintiff at the time of his or her alleged accident and plaintiff had used that part of the property before without incident. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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No Good Deed Goes Unpunished (NY)
In Bridget Bardio v. Rego II Borrower, LLC, 2023 NY Slip Op 00405 (2d Dept. 2023), plaintiff sustained trip and fall injuries when she fell on the stairs of a mall. Plaintiff and her husband had just left a restaurant and argued in front of an elevator heading to the garage. Plaintiff admittedly was intoxicated at the time. The mall security guard came over, de-escalated the argument, and the husband left. The security guard then helped the plaintiff to the garage entrance so she could go to her parked car. He suggested they take the elevator down to the garage and she declined, so they proceeded to take the stairs. As they approached the stairs, plaintiff tripped and fell down the steps. Defendants moved for summary judgment arguing that they were not negligent and owed no specific duty to plaintiff when she fell down the stairs. The trial court denied defendant’s motion and the Second Department affirmed that decision. “Generally speaking, one does not owe a duty to come to the aid of a person in peril, whether the peril is medical or otherwise” (Miglino v Bally Total Fitness of Greater NY, Inc., 92 A.D.3d 148, 159). However, “‘one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully'” (Mirza v Metropolitan Life Ins. Co., 2 A.D.3d 808, 809, quoting Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 522; see Parvi v City of Kingston, 41 NY2d 553). “[T]he question is whether defendant’s conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant done nothing” (Heard v City of New York, 82 N.Y.2d at 72; see Malpeli v Yenna, 81 A.D.3d 607, 609). The defendants argued that plaintiff was intoxicated and the security guard did not owe her any specific duty of care, and more importantly, he did nothing wrong. However, the Second Dept. Court felt that there were issues of fact about whether the security guard’s conduct was a detriment to her safety and whether his conduct increased the risk of harm because plaintiff depended on him to get down the stairs and to her car safely. See Heard v City of New York, 82 N.Y.2d at 73; Lewis v Lester’s of NY, Inc., 205 A.D.3d 796). Normally, a duty of care to a person who needs assistance cannot be extended to simply anyone because there is no specific requirement to do so under the law. However, this case shows that an premises employee who engages a patron and chooses to assist a public patron must do so carefully and show a higher standard of care because they purposefully placed themselves to aid the distressed person, which creates the liability and standard of care from their actions. Property owners should inform their employees that engaging with a public patron, under certain situations, creates a duty of care requiring them to make sure the patron remains free from harm under reasonable circumstances. Thanks to Raymond Gonzalez for his assistance in this article. Should you have any questions, please contact Tom Bracken.Read More
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Open And Obvious Danger Defense Affirmed In Federal PA Case
In recent case of Pusateri v. Wal-Mart Stores East L.P., the United States District Court for the Western District of Pennsylvania found that under PA state law, landowners do not owe business invitees a duty of care for open and obvious dangers that can be avoided through invitees’ exercise of ordinary care. In Pusateri, plaintiff sued Walmart Stores East, L.P. (“Walmart”), alleging negligence as to a business invitee on the theory of premises liability. Plaintiff attempted to avoid a collision with an approaching employee’s shopping cart, and backed into a product display that was in the middle of an aisle at Walmart, causing her to fall. However, in the minutes leading up to the incident, Plaintiff had walked past the display four times. Walmart moved for summary judgment arguing that it did not owe, and thus could not have breached, a duty to Plaintiff because the product display was “open and obvious.” While it was undisputed Plaintiff was a business invitee at the time of the accident, the court cited PA’s settled adoption of Section 343 of the Restatement (Second) of Torts, a landowner is liable for “for physical harm caused to his invitees” if, and only if he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. The court further noted that: Section 343A of the Restatement further provides that ‘[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’ The court finally reasoned a landowner should only “anticipate the harm despite such knowledge or obviousness” in situations where the exercise of ordinary care on the part of an invitee, would be insufficient to avoid the open and obvious danger. While the court ultimately dismissed the motion for summary judgment because the employee’s shopping cart created a distraction for Plaintiff that rendered the obviousness of the product display a question for the jury, the holding confirmed that where a danger is open and obvious, and the danger can be avoided by the exercise of ordinary care, landowners do not owe business invitees a duty of care. Pusateri is a victory for defendant landowners in that it limits the duties owed to invitees which in turn limits potential exposure to liability. Thanks to Stephen Kerstein for his assistance in this article. Should you have any questions, please feel free to contact Tom Bracken.Read More
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College Security Program Creates Duty To Implement That Program Properly (PA)
In Doe v. Moravian College, 2023 U.S. Dist. Lexis 4027, 2023 WL 144436 (E.D. Pa. Jan. 10, 2023), the Court acknowledged that landlords can be found liable for the criminal conduct of other parties when the landlord establishes a program of security. In Doe, Plaintiff asserted a claim of negligence against her college alleging that the school failed to provide adequate security after she was allegedly sexually assaulted in a dorm. Generally, a landlord owes no duty to protect its tenants from the criminal conduct of other parties. However, the Court found that an exception to Pennsylvania’s standard negligence law applied when a landlord establishes a program of security, the tenants reasonably rely upon it, and the landlord negligent carries out the program. In Doe v. Moravian College, the court found that there is evidence that the college had implemented a security program in the dormitories by requiring school identification cards to enter the dormitories, they used residential advisors in their dormitories, and that security workers were employed by the school. The school, therefore, owed a duty to the Plaintiff as a landlord. The College argued that no duty was owed because courts have stopped imposing a duty of loco parentis upon colleges and universities. However, the Court differentiated the case because the tortious act took place in a campus dormitory. Ultimately, the Plaintiff’s case failed when she had to show that the College breached a duty to the Plaintiff by showing that the operation of the security program was negligent. Here, the Court found that the Plaintiff failed to provide evidence of the breach through a negligent security program. Thanks to Jean Scanlan for her contribution to this post. Should you have any questions, please contact Tom Bracken.Read More
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Health Club Found Not Liable For Infectious Disease Claim (NY)
Generally, a property owner in New York has a duty to maintain the property in a reasonably safe condition. To hold a defendant liable for a breach of this duty, a plaintiff must establish as part of his or her case that the defective condition existed and was a proximate cause of the alleged injury. A defendant may have a plaintiff’s claims dismissed on summary judgment by demonstrating that there was no dangerous or defective condition that could have caused plaintiff’s injury. Many of the cases addressing these issues involving tripping or falling hazards. Where a plaintiff allegedly contracts an infectious disease from visiting a premises, can the property owner be liable for such a condition? In Pecora v. Fitness Intl., LLC, the Appellate Division, Second Department addressed this issue in a case where a health club member filed a personal injury action after developing an infection on his stomach which required hospital treatment. Plaintiff continued to use the health club’s sauna and subsequently developed a bacterial infection, MRSA. He alleged that the use of the defendants’ sauna caused the infection, and that the health club was liable for this condition. The Second Department affirmed the lower court’s award of summary judgment to defendants, finding that the plaintiff would not be able to prove, without speculating, that the MRSA infection came from the facility. The defendants’ evidence had shown that MRSA can be transmitted through common everyday interactions, the facility underwent regular cleaning, and no prior complaints about anyone else contracting MRSA or any other infection at the facility were made. In light of the possibility that the infection could have been caused by other means, the Court found that plaintiff failed to establish that the defendants caused or created a dangerous condition. The Pecora case did not specifically hold that an infectious disease can be considered a dangerous condition but applied traditional premises liability and causation principles to find that the infection plaintiff claimed he developed was not a dangerous condition caused or created by the property owners. The case underscores the importance of causation proofs on this issue. Thank you to Gabriella Scarmato for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More
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Surveillance Footage May Be Deemed Speculative For Showing Causation
Generally speaking, in order to establish liability for a personal injury action, plaintiff must identify the cause of their injury without engaging in speculation. Courts oftentimes provide liberal application of this and will permit inferences from the facts of the underlying circumstances. However, mere speculation as to the cause of a fall, when many causes present themselves, will not be sufficient. In the matter Cheprakova v. Medicine Plaza, Inc., et al., 2002 N.Y. Slip Opp. 07434 (2d Dep’t Dec. 28, 2022) suit was brought to recover for injuries sustained in a slip and fall action when plaintiff slipped inside a pharmacy owned and operated by Defendant Medicine Plaza. After discovery, Defendant Medicine Plaza argued plaintiff was unable to point to the cause of her fall and moved for summary judgment on the issue of liability. The lower court and the Second Department agreed, and dismissed the claims against Defendant Medicine Plaza. In support of its position, Defendant submitted the deposition transcript and asserted plaintiff did not know the cause of the fall. Plaintiff presented an export report and surveillance footage of the accident. Despite the court being under an obligation to view the evidence most favorable to the non-moving party, the court still determined that the surveillance footage was not sufficient to show the cause of her fall. This court determined that evidence depicting the accident may not be sufficient in establishing the cause of the accident itself, which is a necessary step to recover on personal injury claims for premises liability. Thanks to Chris Palmieri for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More
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Furnishing The Occasion Is Not the Same As Causation In Premises Liability Case (NY)
Furnishing the occasion for a trip and fall, may not lead to a party being found as the cause of the accident. Generally, if a premise is open to the public, the owner has a nondelegable duty to provide the public with a reasonably safe premise and safe means of ingress and egress. However, that duty ends at the property line, absent extenuating circumstances. In Ellen Buehler v. Town of Pawling, 2022 NY Slip Opp 07047 (2nd Dep’t, Dec. 14, 2022), Ms. Buehler suffered an injury when she tripped and fell a few steps outside a building owned by defendant Town of Pawling. Specifically, Ms. Buehler exited the building through the front entrance, and entered the abutting Route 292, a state owned highway. After making a right turn, and taking a few steps down the road, she tripped and fell within the roadway and sustained injuries. Ms. Buehler alleges that the area was not properly illuminated, which caused her to fall. Defendant Town of Pawling moved for summary judgment on the issue of liability, and the motion was granted. The court stated that “generally liability for a dangerous condition on real property must be predicated upon ownership, occupancy or special use of the property.” An owner “owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it.” Ultimately, the court ruled that defendant Town of Pawling provided a safe means of egress via the front entrance of the building, and “the fact that the plaintiff had the option of walking directly into a paved street from the end of its front entrance ramp, at most, furnished the occasion for the accident, but was not one of its causes.” As such, even though the means of egress provided may lead directly to a dangerous and defective condition, this case establishes that under the circumstances therein, leading a patron to a dangerous condition does not make one liable for the subsequent injuries sustained, absent ownership, or contribution to the condition itself. Thanks to Chris Palmieri for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken.Read More
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Gym Denied Summary Judgment Because Of Conditions At Premises (NY)
In Steven Lore v. Fitness International LLC, 2022 NY Slip Op 06922 (2d Dept. 2022), plaintiff sued his gym alleging serious injury from a trip and fall inside one of its showers in the locker room. Specifically, the injury occurred because of a single step riser 4 ½ inches in height. Following discovery, defendant gym owner filed for summary judgment arguing that the condition was open and obvious to the plaintiff, and not an inherently dangerous condition. Plaintiff opposed the motion arguing poor lighting made it difficult to see the shower riser. The trial court granted summary judgment to defendants, and the Second Department reversed that decision. While it is true that there is no duty to protect or warn a public against an open and obvious condition that, as a matter of law, is not inherently dangerous, the Appellate Court reasoned that the issue of open and obvious should take into consideration the surrounding environment (Sebagh v Capital Fitness, Inc., 202 A.D.3d 853, 855; Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; Kernell v Five Dwarfs, Inc., 207 A.D.3d 622). The Appellate Court also held that determining “whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for the jury” (Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; Liriano v Hobart Corp., 92 N.Y.2d 232, 242). Here, the Appellate Court held the plaintiff’s argument that the lighting condition was poor and made the condition difficult to see was enough to deny dismissal and take the claim to a jury. The Appellate Court’s decision emphasized the difficulty of sustaining a dismissal on the basis that a condition was open and obvious and not inherently dangerous to the public. In order to sustain such a dismissal at summary judgment, there can be no other factors that could lead to the obfuscation of the alleged condition, i.e. poor lighting, no warning signs, out of place condition. One way to avoid this liability would be to clearly articulate the condition on the property, so that there is no argument that it was hidden or not visible to the naked eye. Otherwise, the court will determine the analysis to be fact-specific and leave it as a triable issue of fact for a jury. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken.Read More
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Out Of Possession Landlord Found To Have No Premises Liability (NY)
In Ghodbane v. 111 John Realty Corp., the Appellate Division, First Department recently addressed whether summary judgment awarded to an out of possession landlord was appropriate. In that case, the owner leased the premises to 7-Eleven and the premises were subsequently damaged. 7-Eleven hired a contractor to perform renovation work, after which the plaintiff, who was an employee of 7-Eleven, slipped and fell on a staircase leading to the basement. Plaintiff sued the owner, contractor and property manager. The Supreme Court denied summary judgment as to the contractor but granted the owner and property manager’s motion. The First Department affirmed, holding, among other things, that the owner established its entitlement to judgment by demonstrating that it was an out-of-possession landlord, and that its lease with 7-Eleven imposed no contractual obligation to maintain or repair the premises. The owner also established that it did not create or have notice of the allegedly hazardous condition on the staircase. The Ghodbane decision highlights that the language in a lease between a landlord and tenant can be important in determining the liability of an out of possession landlord. The absence or presence of language concerning the maintenance of the premises may control and should be considered in evaluating liability in a case. Thanks to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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