In this personal injury case, the infant plaintiff who suffers from developmental delays and other disabilities alleged that he injured himself while operating a heavy, self-closing door at a school in North Babylon Union Free School District (hereinafter the district) while attending a Western Suffolk BOCES (hereinafter BOCES) special education program. Plaintiff caught one of his fingers in the door hinge. This action to recover damages for personal injuries was commenced against the district and BOCES on the grounds of negligent supervision, alleging that plaintiff should not have been allowed to operate the door unsupervised.

Supreme Court denied defendant, BOCES’, motion for summary judgment dismissing the complaint alleging negligent supervision. BOCES then appealed the decision and plaintiffs cross-appealed. Since the infant passed out of the district’s orbit of authority while attending the BOCES program, which had been arranged by the district, the Court was correct in granting the branch of the district’s motion for summary judgment dismissing the complaint alleging negligent supervision.

Although BOCES met the prima facie burden of proving it adequately supervised plaintiff, the plaintiffs raised a triable issue of fact in opposition. Due to the infant plaintiff’s documented serious developmental delays, a triable issue of fact lies in whether BOCES was negligent in permitting him to operate a heavy, self-closing door unsupervised.

Accordingly, the Supreme Court affirmed the order as appealed and cross-appealed from with one bill of costs to defendant North Babylon Union School Free District.

Read more about this personal injury case.

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In a slip and fall case the Appellate Division First Department held that there was a triable issue of fact where a florist or his employees had sufficient notice of water on the floor of the shop prior to the plaintiff slipping.  Additionally, the owner of the shop testified that it was a common practice for the employees to shake water off flowers and onto the floor when moving the flowers and assembling floral arrangements.  Accordingly, the judges determined that there were enough issues of fact to have this case go to trial and be decided by a jury. 

Read the entire case here http://www.nycourts.gov/reporter/3dseries/2010/2010_00001.htm

Matter of Abato v County of Nassau

Plaintiff brought about this action against the County of Nassau as the owner and operator of the Nassau Veterans Memorial Coliseum and Long Island Industrial Hockey League, Inc. to recover damages for personal injuries sustained at an ice hockey game. Plaintiff was knocked to the floor by other spectators trying to catch a souvenir T-shirt that was launched into the stands from the ice.

Defendants appealed from an order of the Supreme Court which denied their motion for summary judgment dismissing the complaint and all cross claims. In order to obtain summary judgment defendants needed to establish their entitlement to judgment as a matter of law. They failed to prove that the acts which allegedly caused plaintiff’s injuries were not foreseeable. The commotion following the launching of the T-shirt was a natural response of the spectators as a reaction to the action of the defendants and not an unprompted act of another spectator.

Defendants’ primary assumption was the risk defense as a matter of law. They argued that the acts that allegedly caused the plaintiff’s injuries were foreseeable consequences of attending the hockey game. Again, the defendants failed to prove their point and thus triable issues of fact remain.

Accordingly, the Supreme Court affirmed the order, with costs.

Read more about this personal injury case.

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Matter of Joseph Desena v Keyspan

In this personal injury case, defendant Keyspan Energy Delivery NYC (hereinafter Keyspan) appealed from an order of the Supreme Court denying its motion for summary judgment to dismiss the complaint from petitioner, Joseph Desena. Keyspan claimed to not be responsible for the alleged roadway defect that caused plaintiff’s injuries. In opposition, the plaintiff established that facts essential to the case existed. Keyspan’s foreman has not yet been disposed and will provide facts that could raise a triable issue of fact. Therefore the summary judgment must be denied as triable issues of fact exist.

Accordingly, the Supreme Court affirmed the order as appealed from and upheld the Court’s order to deny the motion for summary judgment.

Read more about this personal injury case here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

]]> http://negligenceatty.com/blog/?feed=rss2&p=180 0 http://negligenceatty.com/blog/?p=177 http://negligenceatty.com/blog/?p=177#comments Wed, 05 Aug 2009 15:49:46 +0000 admin http://negligenceatty.com/blog/?p=177 A landowner “must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others,   the seriousness of the injury, and the burden of avoiding the risk” (Peralta v Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 [2003], quoting Basso v Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976]). “Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally. The scope of any such duty of care varies with the foreseeability of the possible harm” (Tagle v Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001]).

The defendant in Zimkind v Costco Wholesale Corp., 12 A.D.3d 593, 785 N.Y.S.2d 108 (2nd Dept. 2004) submitted photographic evidence of the subject condition and affirmatively demonstrated that it was not inherently dangerous. The plaintiff in that case tripped over a concrete wheel stop in the defendant’s parking lot. The Court held that based upon the evidence submitted, there was considerable proof that the condition itself was not inherently dangerous and it was open and obvious as well. As such, the defendant owed no duty to that particular plaintiff. In this case, as in Zimkind, the Court is obligated to search defendant’s motion to ascertain whether it demonstrated affirmatively that the condition was both open and obvious under the circumstances, and if so, further demonstrate that it was not inherently dangerous. In the instant case, defendant did neither thing. Defendant’s counsel’s affidavit that the condition was open and obvious proved nothing See, Salas v Town of Lake Luzerne, 265 A.D.2d 770, 770, 696 N.Y.S.2d 314 (3rd Dept. 1999); see also, Wright v Rite-Aid of NY, Inc., 249 A.D.2d 931, 932, 672 N.Y.S.2d 548 (4th Dept. 1998); Hodgson, Russ, Andrews, Woods & Goodyear v Roth, 186 A.D.2d 1001, 1002, 590 N.Y.S.2d 817 (4th Dept.1992). In brief, the motion must be supported by a an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof. “S.J. Capelin Associates, Inc. v Globe Manufacturing Corp., 34 N.Y.2d 338, 341, 313 N.E.2d 776, 357 N.Y.S.2d 478 (1974).

It is axiomatic that a landowner’s responsibility is to assure that the conditions on his property are reasonably safe. Basso v Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976); Rovegno v Church of the Assumption, 268 A.D.2d 576, 576, 703 N.Y.S.2d 496, 497 (2nd Dept. 2000); Kurshals v Connetquot Central School District, 227 A.D.2d 593, 593, 643 N.Y.S.2d 622, 623 (2nd Dept. 1996). Specifically, the Basso Court stated that[i]ndeed as the duty was so clearly stated in Smith v. Arbaugh’s Rest. [152 U.S. App. D.C. 86, 469 F.2d 97, 100 [D.C. Cir. 1972]]: “A landowner must act as a reasonable man in maintaining his  [*5]  property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk”.

Basso, 40 N.Y.2d at 241, 352 N.E.2d at 872, 386 N.Y.S.2d at 568; Kurshals, 227 A.D.2d at 593, 643 N.Y.S.2d at 623 (2nd Dept. 1996); Rovengno, 268 A.D.2d at 576, 703 N.Y.S.2d at 497 (2nd Dept. 2000).
 
Whether or not the condition itself was open and obvious, that does not absolve the defendant from its duty to reasonably maintain the premises. As expressed in Cupo v Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40 (2nd Dept. 2003), once a plaintiff presents evidence of a dangerous condition, the burden shifts to the landowner to demonstrate that he acted with reasonable care to make the property safe based upon the likelihood of injury to others and the burden of avoiding the risk.  Whether a condition is open and obvious has nothing to do with this duty. The duty is not abrogated by the characterization of the hazard as open and obvious since by doing so leads to the ridiculous result of encouraging landowners to make hazards on their properties as dangerous as possible to avoid liability if someone is injured as a result of that hazard. See, Id.

In Stern v Ofori-Okai, 246 A.D.2d 807, 808, 668 N.Y.S.2d 68 (3rd Dept. 1998), the Court held that even awareness of a hazardous condition does not absolve a landowner from liability in maintaining its premises, but is relevant only on the issue of comparative negligence. In Morgan v Genrich, 239 A.D.2d 919, 659 N.Y.S.2d 638 (4th Dept. 1997), the Court held that the fact that a hazard is readily observable “may be relevant on the issue of plaintiff’s comparative negligence, but it does not negate the duty of the defendants to keep their premises reasonably safe.” Id. at 920; see, Chambers v Maury Povich Show, 285 A.D.2d 440, 440, 726 N.Y.S.2d 725 (2nd Dept. 2001) and Acevedo v Camac, 293 A.D.2d 430, 431, 740 N.Y.S.2d 380 (2nd Dept., 2002).As the First Department expressed in Westbrook v WR Activities-Cabrera Markets, 5 A.D.3d 69, 773 N.Y.S.2d 38 (1st Dept. 2004), the issue of whether a condition is open and obvious is generally a jury question and should only be resolved as a matter of law when the facts compel such a conclusion. See, Id. at 72. For a condition to be open and obvious as a matter of law requires that it could not be overlooked by anyone making a reasonable uses of his senses. See, Garrido v City of New York, 9 A.D.3d 267, 268, 779 N.Y.S.2d 208 (1st Dept. 2004).

Furthermore, the extent to which a defect is open and obvious addresses the issue of plaintiff’s comparative negligence, not the defendant’s overall duty to maintain its premises in a reasonably safe condition. See, Acevedo, 293 A.D.2d at 431.

An example given by the Westbrook Court included a case (Thornhill v Toys “R” Us NYTEX, 183 A.D.2d 1071, 583 N.Y.S.2d 644) where summary judgment was denied to a defendant when a plaintiff [*6]  tripped over a raised platform in a department store, despite the fact that the plaintiff initially noticed the platform and avoided it, given that the photographs demonstrated that the platform itself was not readily discernible.

The 1^st Department Court found that plaintiff’s striking her head on a standpipe which extended horizontally from a building was not an open and obvious hazard since the sun glare prevented her from seeing the object, since some hazards due to their nature of location, are likely to be overlooked. See, Juoniene v HRH Construction Corp., 6 A.D.3d 199, 774 N.Y.S.2d 525 (1st Dept. 2004) at 200-201.

Plaintiff tripped over a broken and fallen construction sign which was on the sidewalk. The sign was 6′ long and 4′ high lying on the ground. The Court reversed the trial court’s decision to grant summary judgment noting that while the sign itself was clearly visible, the plaintiff’s failure to observe it was relevant only to the issue of plaintiff’s comparative negligence, and not the defendant’s overall duty to reasonably maintain the sidewalk. See, Garrido v City of New York, 9 A.D.3d at 267, 268; 779 N.Y.S.2d 208 (1st Dept. 2004).

A plaintiff was injured when she tripped over a wooden pallet placed by defendant on the floor between two tables displaying merchandise. The Court held, in reversing the lower court’s decision to grant defendant a judgment on the law at the close of plaintiff’s case, even if a jury found the pallet to have been open and obvious, it was relevant only to comparative negligence and a rational jury may not completely absolve the defendant from liability. In the instant case, the issue of whether the stacked box was open and obvious is a jury question, and even an affirmative determination that it was open and obvious does not absolve defendant from liability. Moloney v Wal-Mart Stores, Inc., 2 A.D.3d 508, 767 N.Y.S.2d 897 (2nd Dept. 2003)

Plaintiff attempted to maneuver around a plant display placed by defendant, and in so doing, her shopping cart’s wheel went off the curb and caused her to fall and be injured. The Court held that defendant created the condition by placing and arranging the plant display and the issue of whether the perils of the aisle were open and obvious was best left for jury determination. See, Monge v Home Depot, Inc., 307 A.D.2d 501, 761 N.Y.S.2d 886 (3rd Dept. 2003) at 502; See also, De-Conno v Golub Corp., 255 A.D.2d 734, 735, 680 N.Y.S.2d 727 (3rd Dept. 1998) (plaintiff, who tripped on a cone placed by defendant in an aisle of one of its stores, was entitled to a jury trial and denial of summary judgment by defendants since the placement of the cone and its obscuring by customers and other merchandise stacked nearby, created an issue of fact).

Moreover, even if the condition was open and obvious, the question remains whether it was inherently dangerous and whether plaintiff bears any responsibility for the accident’s occurrence. NY C.P.L.R. § 1411 states as follows: In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.
 
Plaintiff tripped and fell when her lower right leg struck a shelf protruding into an aisle of defendant Food Mart as she was passing an employee of defendant food supplier who was stocking merchandise on the store’s shelves. Defendants moved for summary judgment, and the trial court denied the motion as to both defendants. The Court affirmed regarding defendant Food Mart but modified as to defendant Troyer. Food Mart had asserted that the condition was open and obvious, but the Court found that the shelf that had allegedly caused plaintiff to trip was near floor-level and protruded only three to four inches. Both plaintiff and defendants’ employees also stated that they did not see what plaintiff had tripped on. The Court said even if the shelf was readily observable, such a fact would go to the issue of comparative negligence and would not negate the duty of defendants to keep their premises reasonably safe. Summary judgment as to these defendants was thus improper. See, Patterson v Troyer Potato Products, Inc., 273 A.D.2d 865, 709 N.Y.S.2d 731 (3rd Dept. 2000).
 

Rare Personal Injury Verdict In Favor of Teacher Against Board of Education

It is very difficult for a teacher to recover for personal injuries against the Board of Education because of student violence. The Board is only liable if it assumed a “special duty.” Dinardo v. Board of Education, ___A.D.3d___(1st Dept. Dec. 23, 2008), is one of those rare cases where a special duty was found because the Board sought to protect this teacher from the student due to the previous violence inflicted by this very same student. As the court stated:

Although no express promise was made to plaintiff by any agents of the Board, there is no requirement that the promise to protect be explicit (see Bloom v City of New York, 123 AD2d 594, 595 [1986]). In this regard, we note in particular that plaintiff testified that her supervisor told her to “hang in there because something was being done to have [the student] placed or removed.” The dissent posits that plaintiff could not have been lulled into a false sense of security by being told something was being done and by the initiation of a Type 3 referral, especially since she knew it could take up to 60 days to process such a referral. The jury, however, had a rational basis for finding that plaintiff justifiably relied on the Board’s affirmative undertaking, given the assurances she received from her local administrators. For instance, plaintiff told the principal, the assistant principal and her direct supervisor that the situation was getting more impossible, that she wanted to quit, that it was getting unsafe, and that she was concerned about safety in the classroom; in response she was told that “things were being worked on, things were happening [suggesting an imminent solution], . . . and to hang in there.” In addition, while the Type 3 referral was pending, the principal intervened by writing a letter to the District 10 supervisor of special education, “urgently requesting an alternative site” for the student.

We reject the Board’s argument that plaintiff’s claim fails because it is premised on the Board’s alleged negligence in the placement and transfer of a student. This is a function carried out in accordance with educational policy, the responsibility for which lies within the professional judgment and discretion of those charged with the administration of the public schools (see e.g. Brady v Board of Educ. of City of N.Y., 197 AD2d 655 [1993]). The evidence demonstrates that agents of the Board began the process of transferring the offending student out of plaintiff’s class, and contrary to the Board’s contention, the gravamen of plaintiff’s negligence claim was that her supervisor and other school administrators failed to follow through with the transfer request in a timely fashion. Furthermore, the Board’s argument that it cannot be held liable because its agents had no knowledge of prior threats or violence committed by the student who attacked plaintiff, or that she feared for her safety, is belied by the evidence that the Board’s agents were aware of the student’s aggressive tendencies and that plaintiff indeed feared for her safety in the classroom.

Mitchell H. Rubinstein

January 25, 2009 in Education Law

Demetria Singleton participated in a “Stop and Frisk” training exercise conducted in a basement. Ms. Singleton played the role of perpetrator for Probationary Police Officers. During the drill, one of the Probationary Police Officers was encouraged to be aggressive and he swept Ms. Singleton’s legs from under her causing her to strike her knee on the concrete floor. The impact resulted in a ruptured left anterior cruciate ligament, torn lateral meniscus, and a herniated disc. Ms. Singleton was left fully disabled after two surgeries. Since employees are entitled to a safe workplace and this exercise could have been performed in the Police Academy with proper padding, the Court ruled in Ms. Singleton’s favor awarding her $2.4 million for past pain and $6 million for future suffering.

In an unrelated case, Police Officer Irma Mendez-Leguillos was awarded $2.6 million for her pain and suffering caused by a 350-pound file cabinet falling and crushing her hand. The Police Department was aware that the file cabinet was a problem but instead of replacing it, they merely moved it to another office.

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]]> http://negligenceatty.com/blog/?feed=rss2&p=163 0 http://negligenceatty.com/blog/?p=160 http://negligenceatty.com/blog/?p=160#comments Tue, 30 Dec 2008 19:27:23 +0000 admin http://negligenceatty.com/blog/?p=160

Campbell v County of Suffolk

In this Long Island bus accident case, the plaintiff Susan Campbell was a passenger in a motor vehicle when it was struck by a bus owned by the defendant County of Suffolk and operated by defendant Peggy Costello. Plaintiff sustained injuries and commenced this lawsuit against the County and Costello to recover damages for personal injuries. Plaintiff moved for summary judgment on the issue of liability and submitted evidence demonstrating entitlement to judgment by establishing that her vehicle was traveling northbound on County Road 51 when the bus, traveling southbound, crossed over the median and struck plaintiff’s vehicle head on. Supreme Court granted plaintiff’s motion for summary judgment on the issue of liability.

Defendants then appealed this decision but failed to raise a triable issue of fact. Costello admitted at her deposition that she swerved to avoid a nearby truck but also stated that she saw the entire truck in her side view mirror which would suggest that the truck was not dangerously close. Since defendants failed to raise an issue of fact as to whether Costello was faced with an emergency not created by her own actions, the plaintiff was entitled to summary judgment.

Accordingly, the Court affirmed the judgment, with costs.

Read the full article here.

If you need a lawyer to represent you in your New York bus accident case, please contact Kevin P. Sheerin toll free at 888-998-9984.

Matter of Schreiber-Cross v State of New York

In this New York car accident case, plaintiff’s decedent was killed in a two-car accident at the intersection of Route 25A and Columbia in Port Jefferson Station. Claimant asserted seven allegations of negligence against the State of New York, six of which pertained to the design and/or maintenance of the traffic control device location at the intersection, or the intersection itself.

Less than two weeks prior to the scheduled trial date, claimant switched attorneys and submitted a motion for partial summary judgment and leave to amend the bill of particulars and change the designation of the claimant’s expert. This motion was returned for being in violation of the court-imposed deadlines. Claimant then brought about an Article 78 appeal for consideration of the motion. The Court of Claims denied the motion in toto which resulted in the claimant moving for recusal of the Court of Claims judge. The Court denied the motion. A trial commenced with the outcome of the claim being dismissed.

Claimant then appealed, asserting that the record established the traffic control device was the proximate cause of the accident and that the Court of Claims erred in denying the branches of the motion for leave to amend the bill of particulars and to substitute its designated expert. Evidence supported the Court’s determination that the claimant failed to establish the State was negligent in maintaining the traffic signal. The proposed new expert was going to testify on how the decedent’s head trauma was due to the guardrail placement and not place much emphasis on the traffic signal.

The Court of Claims had the task of determining whether the relief sought was contrary to prior representations made by claimant’s prior counsel and to balance the rights of the litigants against the demands of its calendar. Changing attorneys right before a trial begins is not considered a sufficiently exceptional circumstance that would limit the discretion of the Court.

Accordingly, the Court affirmed the judgment.

Read the full article here.

If you need a lawyer to represent you in your New York car accident case, please contact Kevin P. Sheerin toll free at 888-998-9984.

Dinardo v City of New York

In this New York personal injury case, plaintiff Zelinda Dinardo, a special education teacher, sought to recover damages for injuries sustained while attempting to protect one of her students from attack by another student with a history of aggressive and disruptive behavior. The Supreme Court ruled in favor of plaintiff in April 2008 and respondents appealed.

Respondents argued that plaintiff’s claim should fail because it was based on the Board of Education’s alleged negligence in the placement and transfer of a student. Contrary to respondents’ contention, the issue at hand was that the school administrators failed to follow through with the transfer request in a timely fashion. Additionally, evidence disproves the Board’s argument denying liability due to no knowledge of previous violent outbursts by the student who attacked the plaintiff.

Accordingly, the Court dismissed the appeal without costs and affirmed the judgment awarding plaintiff damages in the amount of $512,465.

Read the full article here.

If you need a lawyer to represent you in your New York personal injury case, please contact Kevin P. Sheerin toll free at 888-998-9984.