Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY)Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article.Read More
Defendants Bear Burden To Show Alleged Sidewalk Defect Substantial And Not the Cause Of Plaintiff’s FallIn its November 21, 2022, decision Hawkins v. Terence Cardinal Cooke Health Care Ctr. (2022 N.Y. Slip Op. 33914), the Supreme Court, New York County denied defendant’s motion for summary judgment which was based upon the plaintiff’s inability to identify where she fell or the defect that caused her accident. The Plaintiff alleged that while she was walking on Fifth Avenue she fell at 1259 Fifth Avenue, and after the defendant denied ownership of that location, amended the pleadings to 1249 Fifth Avenue. The Court in coming to its conclusion looked at precedent that held a defendant was not entitled to summary judgment simply because a plaintiff could not say with certainty that an elevation in the sidewalk was the reason for a fall, but that it was the defendant’s burden to show that the alleged sidewalk defect was not the cause of plaintiff’s fall (Tiles v. City of New York, 262 A.D.2d 174 (1st Dept. 1999)), and that any inconsistencies in testimony would be left for a trier of fact (Narvaez v. 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500, 501 (1st Dept. 2011)). The Court, further, provided a detailed resuscitation of the applicable, well-known statutes that control in such circumstances. Specifically, New York City Admin. Code§ 7-210(a) and (b) that require the owner of real property to maintain the abutting sidewalk in a reasonably safe condition and imposes a nondelegable duty upon the owner for any injury for a failure to do so. Failures to maintain the sidewalk in a reasonably safe condition include the negligent failure to install, construct, reconstruct, repave, or repair the sidewalk. Moreover, the Court looked to the New York City Department of Transportation Highway Rules (34 RCNY § 2-09(5)(iv)) and a further provision of the New York City Administrative Code, Section 19-152 which govern the seriousness of sidewalk defects. Both statutes define a “substantial defect” as a trip hazard where the vertical differential between adjacent flags is greater than or equal to 1 /2″ or where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is 1 /2″ or more in depth. In denying the defendant’s motion for summary judgment, the Court looked to the testimony and affidavit of the plaintiff, witness affidavits, and plaintiff’s engineering affidavit and report that showed a 2 ¼ inch height difference in flags where the plaintiff alleged she was injured. This case serves as a reminder of the clear, quantifiable nature of sidewalk defects that can expose property owners to liability and the well-established law concerning the duty of a landowner to maintain the sidewalks abutting their property. Please contact John Diffley with any questions.Read More
In Keeney v. Hempstead Turnpike, LLC, et al., the plaintiff appealed from an order granting summary judgment to defendant/second third-party plaintiff, Stop and Shop Supermarket Company, LLC (“Stop & Shop”), to defendant/third-party plaintiff, Hempstead Turnpike, LLC (“Hempstead Turnpike”), the second third-party defendant, S & S Levittown, LLC (“S & S”), and, on a separate motion, granted summary judgment to third-party defendant, East Coast Lot & Pavement Maintenance Corporation (“EC Lot & Pavement”) dismissing the complaint as against the defendant/third-party plaintiff, Hempstead Turnpike.
Plaintiff slipped and fell on snow on a sidewalk in front of a store operated by Defendant Stop & Shop. The plaintiff sued Stop & Shop and the owner of the property, defendant Hempstead Turnpike, which in turn commenced a third-party action against EC Lot & Pavement, a snow removal contractor. Stop & Shop commenced a second third-party action against S & S, the holder of the ground lease for the property.
The Court examined the facts under the now well-settled storm-in-progress rule citing that a property owner, tenant in possession, or, where relevant, a snow removal contractor is not liable for accidents caused by snow or ice that accumulates during a storm until sufficient time since a storm’s cessation has passed to allow the opportunity to mitigate any hazards caused by the storm. The Court noted, however, that if a landowner or tenant in possession decides to remove snow during a snowstorm, then, in such an instance, the landowner and tenant in possession must act with reasonable care not to create a hazardous condition or make worse a hazardous condition created by the storm.
Though the plaintiff in the underlying action claimed the sidewalk looked like someone removed snow earlier in the day with parts of it having melted spots, did not have no salt or sand on it, had about ½ an inch of snow where the plaintiff slipped, and the parking lot was salted and sanded, the defendants here successfully established that their efforts to remove snow and ice from the sidewalk during the storm did not create a hazardous condition or exacerbate the natural hazard caused by the storm.
This case serves as a reminder of the potential liability exposure of owners and tenants in possession along with those they contract with, such as a snow removal contractor, when attempting to ameliorate a snowy condition while snow is still falling from the sky, as well as, the factual depth and development necessary for the defense of such cases.Should you have any questions, contact John Diffley.Read More
The Superior Court of Pennsylvania recently held that the workers’ compensation bar extends to provide immunity to an entity who managed and owned the business that employed the injured plaintiff at the time of his injury. However, the fact pattern is rather unique, so the result does not necessarily change the current legal landscape.
The plaintiff in the case was injured by heavy machinery while working on a construction site. The defendant construction company held a general commercial liability insurance policy for the machinery in question. Importantly, the plaintiff was employed by an LLC that was co-owned by defendant construction company and another individual. The trial court granted summary judgment for the defendant on the grounds that (a) the plaintiff’s suit was barred by the employer immunity provision of the Workers’ Compensation Act (“WCA”) and (b) the plaintiff’s suit was barred pursuant to the co-employee immunity provision of the WCA.
Because the defendant did not directly employ the plaintiff and did not exert exclusive control over the LLC that employed the plaintiff, the Superior Court concluded that there was a genuine issue of material fact as to whether the defendant was the plaintiff’s “employer” under the WCA. Thus, the Superior Court disagreed with the trial court’s first ground for summary judgment.
However, the Superior Court cited the Supreme Court of Pennsylvania, which has held that the immunity granted by the WCA to workers to protect them from common-law suits filed by their injured co-workers is based upon the same underlying immunity that the WCA affords to employers. In this case, the Superior Court held that co-employee immunity under the WCA is not confined to rank-and-file workers but extends to the managers and executives of an employer and even individuals with an ownership interest in the employer. The Superior Court held that the defendant construction company was the plaintiff’s co-employee under the WCA and, therefore, was entitled to immunity from the plaintiff’s lawsuit. Enterprising attorneys should therefore look at the corporate constellations to determine if WC immunity is an appropriate defense.
Thanks to Jason Laicha for his contribution to this article. Should you have any questions, please contact Matthew Care.Read More