Sui Generis--a New York law blog

New York Court of Appeals Considers Whether "Special Relationship" Exception Applies To Hold Municipality Liable

In Laratro v City of New York, 2006 NY Slip Op 0966, the plaintiff suffered severe brain damage as a result of a stroke and alleged that his injuries would have been far less severe had the City of New York's employees responded more quickly to the 911 call of one of his co-workers.  A 911 operator informed his co-worker that "an ambulance will be there to help you as soon as possible", but one didn't arrive until 35 minutes later, apparently because the operator misunderstood the exigency of the situation.

The Court noted that municipalities are generally shielded from liability arising as a result of the breach of a duty by a firefighter, a police officer or an EMT in order to make municipal governments more effective in protecting their citizens since to allow liability across the board would burden municiplaites with excessive costs and the threat of litigation might very well stifle the effective rendering of emergency services.

However, the "special relationship" doctrine is a well recognized exception to this rule, as the Court explained:

There exists . . . a narrow class of cases in which we have recognized an exception to this general rule and have upheld tort claims based upon a 'special relationship' between the municipality and the claimant. The elements of this 'special relationship' are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.  (Internal citations and quotations omitted).

The Court then considered whether the "special relationship" exception applied in this case.  The Court noted that the 3rd and 4th requirements of the rule were not satisfied since "the plaintiff did not have direct contact with, and did not rely on any undertaking by, the City's 911 operator."

The Court noted that in only one situation did its prior precedent allow  a "special relationship" to be created on behalf of persons unable to communicate with municipal employees themselves--where the person making contact is the immediate family member of the person requiring assistance.  And, in this case, since the plaintiff's co-worker was not a member of his immediate family, a "special relationship" was not created by the 911 phone call.

In my opinion, this entire line of cases requiring a familial relationship is absurd.  In many cases, the citizens that are in the most dire need of assistance from emergency services are those who are unable to ask for assistance, either because they are too gravely ill  or have been abducted or otherwise rendered helpless.  To only allow recovery from municipalities under the "special relationship" exception where the a member of the injured party's immediate family just happens to be on hand to request emergency assistance is ridiculous. 

And, what of the situation where a parent is too distraught to make the phone call and asks a close friend to request emergency assistance on behalf of the injured or abducted child, but is unaware of this "immediate family member" requirement?  If a municipal  employee is subsequently negligent in responding and the child dies, are the parents to be penalized simply  because they asked a good friend to call rather than  making the call themselves?  That result makes no sense at all to me, but precedent seems to require it. 

NY Court of Appeals Holds Issue of Fact Precludes Summary Judgment

In Lempert v Steinberg & Pokoik Mgt. Corp., 2006 NY Slip Op 09664, the New York Court of Appeals held that the First Department inproperly concluded that no issues of fact existed as to whether the defendant was liable for the plaintiff's injuries.  The First Department's decision provides the relevant factual and procedural background in this slip and fall case:

Plaintiff alleges that, at about 2:00 p.m. on Monday, March 17, 2003, she slipped on some gritty, granular particles on the floor of the lobby of the building where she worked, which building was owned and managed by defendants...(D)efendants demonstrated that, after the completion of discovery, there was no evidence that defendants had either actual or constructive notice of the granular accumulation on the floor prior to the accident, nor was there any evidence that defendants had created the condition...In opposition, plaintiff essentially conceded that there was no evidence that defendants had had actual or constructive notice of the condition.

Plaintiff argued, however, that there was evidence that defendants had created the condition. Such evidence was said to consist of plaintiff's affidavit stating as follows: (1) during the weekend of March 15-16, 2003, she had been in the building, and had seen mats on the floor of the lobby; (2) when she returned to the building on Monday, March 17, the day of the accident, the mats had been removed; (3) it is plaintiff's "understand[ing]" that when defendants remove the mats from the lobby, the mats are turned over and rolled up, "so that all of the dirt, dust and debris that collects in the grooves of the mats falls onto the floor"; (4) plaintiff "further understand[s] that the cleaning of the floor after the mats are rolled up . . . does not occur until the evening when a cleaning crew comes in."

The First Department concluded that the plaintiff's theory was based solely upon speculation and granted the defendant's motion for summary judgment. 

The Court of Appeals concluded, quite correctly in my opinion, that summary judgment should have been denied since questions of fact existed as to whether the slippery substance on the floor caused the plaintiff's injuries and if so, as to whether the condition was created by the defendant's negligence. 

Patricia Fell Down and Broke Her Crown And I Guess We'll Never Actually Know If She Boosted

Baumeister v. Town of Cheektowaga, 2006 NY Slip Op 08358, is an interesting Fourth Department decision.  The plaintiff, who was apparently disabled in some fashion, was accused of shoplifting at a grocery store and was taken in to custody by store security.  Shortly thereafter, the police for the Town of Cheektowaga showed up and took custody of her, at which point she fell and was injured.  She filed suit, seeking to recover for her injuries, subsequently died for reasons unrelated to her fall, and her estate continued to pursue the claim on her behalf.

The Court concluded that the store owed no duty to the plaintiff at the time of the accident since its security officers had relinquished custody of her to the police prior to the accident occurring.  The Court also rejected the claim that the store had a duty to warn the police of her mental and physical disabilities since it  " submitted evidence establishing that it did not know, and had no reason to know, of decedent's alleged disabilities."

The Court also held that the Town was entitled to summary judgment since the manner in which the plaintiff was injured was not reasonably foreseeable and thus no duty of care was breached.

That's all fine and dandy, and legally, I can see where the Court's coming from.  But, I'm not a happy camper.   The Court totally left me hanging.

What I really want--nay--need to know is: Did she boost from the store or not?  Was the plaintiff the victim of a horrible misunderstanding or was it a valid arrest gone bad?

The Court ignored the first rule of storytelling and completely ignored the reader:  "Patricia, (who was somehow disabled but we're not elaborating any further) fell down and broke her crown while in police custody after being accused of shoplifting.  She later died of unrelated causes.  Case dismissed.  The End."   

It's the equivalent of sending Jack and Jill up the hill for no apparent reason, thus causing you to lose sleep at night wondering why they trudged up the hill in the first place.  Mother Goose is probably rolling over in her grave. 

I can't say that I blame her.

Pass me an Ambien, will you?

Why Did the State Settle?

In a recent comment, a reader named Rob asked if I'd address the case described in this article wherein the State settled a claim for 14.8 million dollars.  The claim was made by a police officer who was off duty when he was paralyzed while riding an ATV on State-owned property:

After finishing his shift in May 2002, police officer Scott Brumber decided to avoid the Memorial Day crowds by zipping his all-terrain vehicle down the short-cut path, known locally as the "Coast Guard cut."

The ATV snagged on a metal pipe that was sticking up from the sandy roadway, causing the vehicle to flip in the air and land on Brumber, crushing his spine. The accident left Brumber, who has a wife and three children, confined to a wheelchair.

In his comment, Rob wondered why the State settled since, in his view, the officer was negligent. 

My short answer is that while the officer may have shared some liability, the State was likely to be found more liable than the officer (for the reasons that follow) and was thus facing the likelihood of a large judgment against it, given the serious nature of the injuries, the potentially large amount of lost economic damages and a very sympathetic plaintiff, a husband and father of 3 children.  So, the State hedged its bets and settled.

Here's why I think that the State didn't have the law in its favor, and thus settled the case.  Although not mentioned in the article, I suspect that the case centered on General Obligations Law s. 9-103, which I discussed previously in this post:

The statute provides, in part, that as long as no fee is charged, the landowner owes no duty to keep the premises safe for entry or use by recreational users pursuing listed activities, and that the landowner has no obligation to warn said users of any hazardous condition, use of property, structure, or activity on the property.  The statute was enacted to encourage landowners to open their lands to recreational users by providing statutory immunity from lawsuits resulting from injuries sustained as a result of the enumerated recreational use.

ATV use is an activity specifically enumerated in the statute. 

One exception to the shield from liability provided by the statute is described in this fairly recent Fourth Department case, Guereschi v Erie Blvd. Hydropower, L.P., 2005 NYSlipOp 04733:

The statute will prevent recovery unless plaintiffs make a "high-threshold demonstration" that defendant acted maliciously or willfully, and "[a]n owner's actions in creating a dangerous condition must be based on a showing of particular, not inferred, malice and willfulness, and not on simple negligence"...

Thus, in a Third Department case from 1989, Hummel v. Vicaretti, 152 A.D.2d 779, 543 N.Y.S.2d 560, a jury's verdict found the landowners 65% liable and the ATV operator 35% liable where an ATV rider ran into a fence and was injured.  The Court upheld the verdict and the determination that the State was not protected by statutory immunity provided by GOB s. 9-103, stating that:

Here, plaintiffs introduced evidence to show that defendants were aware that recreational riders used the pipeline path and, in fact, had tried to actively discourage them from doing so on occasion. In addition, defendants were responsible for putting up the thin wire fence which plaintiffs' witnesses testified had no markers or ribbons placed on it,   thus making it very difficult to see.

Hummel is analogous to the case at hand in that both landowners actually created the dangerous condition.  Thus, in my opinion, the State likely faced a finding that it was not entitled to GOB s. 9-103 immunity, so it settled, rather than face an even larger judgment against it.

Anyone else have an opinion on this one?  I'm just shooting from the hip since the article didn't really set forth the entire legal theory.  But, I'm pretty sure that GOB s. 9-103 was in play.  Care to prove me wrong?

What's More Fun Than Beef Jerky?

Schirmer v Board of Educ. of Spencerport Cent. School Dist., 2006 NY Slip Op 08574, a recent Fourth Department case, brought back a flood of unwelcome memories of torturous hours spent in study halls in high school, while at the same time inexplicably reminding me of the innumerous hours that I spent as a teenager laughing until my sides hurt while listening to the Jerky Boys (my all-time favorite line being "Right. And I'll bring all my shoes and my glasses with me so I have them.")

Oh, those were the days.  But, I digress.

You're probably wondering why this case sent me on a long, strange trip down memory lane.  Well, wonder no more, my good readers.  Sit right down and I'll tell you a tale about an infant plaintiff that sustained an eye injury during an unsupervised study hall when he was hit by a wayward piece of beef jerky that was being thrown back and forth between the infant defendants.  One of the infant defendants, Mannix, was supposed to be in the study hall, while the other was not.

And, why, you might ask, were they flinging beef jerky across the room?    As explained by the Court in my favorite line from the opinion:  "It is undisputed that the two students were throwing the beef jerky for fun..."  Yep, that's right, for fun.  I mean, what could possibly be more fun than beef jerky?  These kids sure know how to partaaaay.  Life of the party, I tell you.

Perhaps you're curious about the legal issues and the Court's holding in this case.  Ask and ye shall receive:

We conclude that the activity engaged in by the two students was not "so inherently dangerous that mere participation therein [was] negligence" ...Thus, Supreme Court properly granted the motion of Mannix seeking summary judgment dismissing the amended complaint against him.

The evidence submitted by defendant in support of its motion established that there were at times 50 or more students attending the honors study hall; the study hall was not supervised by an adult; the study hall was only periodically monitored by an adult to determine whether there were students present who did not have the requisite "honors" pass; defendant had notice of three prior incidents wherein objects were thrown by students attending the study hall without the requisite "honors" pass; and defendant had notice of one prior incident wherein a student was injured by another student while attending the unsupervised study hall. That evidence raises triable issues of fact whether defendant adequately supervised the students attending the study hall and whether the injuries sustained by plaintiff's son were a foreseeable result of the "absence of adequate supervision"...

A Few Short NY Court of Appeals Decisions

Over the past week, the New York Court of Appeals handed down a number of decisions, a few of which were quite short.  Here's a quick round up of those brief, yet relevant, decisions:

• Ziegelmeyer v United States Olympic Comm., 2006 NY Slip Op 08644--The Court addressed the issue of whether an Olympic skater had assumed the risk of her injuries and held that "(a)lthough safety pads had been placed on the boards, plaintiff fell in such a way that her feet lifted the pads, causing her hip to strike the boards directly.  Because plaintiff was aware of the exact manner in which the safety pads had been set up on the day of her accident, the Appellate Division correctly held that plaintiff had assumed the risk of her injuries, and properly affirmed the Supreme Court order granting summary judgment dismissing the complaint..."
• People v Moyett, 2006 NY Slip Op 08643--On appeal, the defendant alleged that his plea waiver was invalid.  The Court agreed and stated that:  "Defendant's purported waiver of appeal during the plea colloquy was invalid because the court advised defendant that "by pleading guilty you give up your right to appeal the conviction." Based on this statement, defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea...Under these circumstances, and absent a written waiver of appeal or some indication in the record that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea, there is inadequate assurance that defendant entered into a knowing, intelligent and voluntary waiver of appeal."
• People v Bolling, 2006 NY Slip Op 08280--The defendant contended that the Court improperly charged the jury regarding his justification defense, but the Court held that no justification charge was necessary, and thus any error in the charge was harmless:  "(N)o reasonable view of the evidence supported the defense. A witness testified that the victim had threatened defendant and a co-defendant with a gun, and had fired it into the air, but the same witness testified that the victim was then disarmed, and that he was lying on the ground when the shots that killed him were fired."
• People v Nelson, 2006 NY Slip Op 08636--The Court disagreed with the defendant's assertion that the trial court erred in denying his motion to substitute counsel, which was made just prior to jury selection:  "Although the court initially rejected defendant's application without inquiry, it thereafter allowed defendant to voice his concerns about defense counsel. Nor did defense counsel's comments to the court defending his performance create a conflict of interest requiring the court to appoint new counsel..."

NY Court of Appeals Considers Whether Attorney's Letter Satisfied the Notice Requirement of GML s. 50-e

In Rosenbaum v City of New York, 2006 NY Slip Op 08631, a case with a rather complicated procedural history, the issue addressed by the New York Court of Appeals was whether a letter dated August 18, 1994 sent by the plaintiff's attorney to an attorney in the New York City Housing Preservation Department ("HPD") satisfied the notice requirements of General Municipal Law s. 50-e.

In this case, the plaintiff brought a claim seeking to discharge the City's lien on property that he had purchased and also alleged a cause of action for slander of title, but did not initially seek special damages.  Following an appeal to the Appellate Division, the plaintiff was granted summary judgment on the first cause of action and the second cause of action for slander of title was returned to Supreme Court for trial. At issue was whether the City acted with malice and whether the plaintiff was entitled to special damages, which the Appellate Division concluded the plaintiff was entitled to seek, even though he had not initially sought recovery of special damages.  Prior to trial, the City made a motion seeking to dismiss the complaint due to the plaintiff's failure to serve a timely Notice of Claim.

In the August 18, 1994 letter at issue, which the plaintiff claimed constituted a valid Notice of Claim, the plaintiff's attorney outlined the dispute and the prior dealings with the HPD and then stated the following:    

[t]o date no bill was ever sent to the record owner. The sole awareness was a new title search relative to a sale that indicate[s] that these charges were placed as financial aid[] liens on May 28, 1994 (see copy of tax search attached).    

Clearly there is no legal basis for these liens. I explained this to you and to date no one has provided any reason for the City's failure to follow the law and yet to slander [plaintiff's] title by placing these liens on the property almost one year after title passed.    

Unless these liens are removed forthwith then [the owner] may lose his current sale and be substantially damaged. If an action is brought due to [the] City's unlawful refusal to remove the illegal liens, then the owner is entitled not only to costs but legal fees as well. I hope this will not be necessary.    

Please review and reply.

In reaching its decision, the Court of Appeals first set forth the applicable law regarding the sufficiency of a Notice of Claim and then concluded that the letter at issue was not a valid Notice of Claim.  The Court stated that the letter didn't alert the recipient that litigation was imminent nor did it include a sufficient explanation of the alleged special damages, including when and where they occurred.  As the Court explained:

The City argues that the August 18, 1994 letter was unremarkable, "appear[ing] as merely a piece of routine correspondence between plaintiff's counsel and an attorney representing one of the City's many administrative agencies" exchanged during the heat of an ongoing controversy. We agree. The requirements of General Municipal Law § 50-e(2) are not fulfilled when a plaintiff or an attorney writes a letter to a City agency suggesting that unmet demands might lead to litigation. If they were, the City would be placed in an untenable position since any number of everyday disputes between citizens and City agencies will inevitably yield streams of similar, vaguely threatening correspondence. Section 50-e does not abet notice of claim by stealth.

This is yet another case that exemplifies the importance of following the stringent requirements of GML s. 50-e to a "t".   Many a case has been lost due to counsel's failure to do so.

 

NY Court of Appeals Considers Whether Equitable Estoppel Applied to Toll the Statute of Limitations in a Med. Mal. Case

In Putter v. North Shore Univ. Hosp., 2006 NY Slip Op 08281, the plaintiff was diagnosed with hepatitis C shortly after undergoing quadruple bypass surgery in November 1993.  Shortly after being diagnosed, he learned that another patient who'd had surgery performed by the same cardiac surgeon, Dr. Hall, also had contracted hepatitus C.  The plaintiff's primary care physician and his three sons, two of whom are physicians and one of whom is a physician's assistant, concluded that he'd contracted the disease during surgery.

The plaintiff contacted the Chief of Infectious Diseases of the Hospital where his surgery had occurred in 1994 and was advised that some people contract hepatitis C from unknown sources and that he fell into that category. 

In 2002, the Department of Health contacted the plaintiff and advised him that his cardiac surgeon and the hospital were under investigation since 10 patients had developed hepatitis C over a nine year period.  And, it was later learned that Dr. Hall in fact had hepatitis C.  After learning of this information, in August of 2002, many years after the 2 1/2 year statute of limitations for medical malpractice had expired, the plaintiff commenced suit and argued that the defendants were equitably estopped from asserting the statute of limitations as a defense.

Surprisingly, at least in my opinion, the Court of Appeals held that equitable estoppel did not apply:

We have recently reaffirmed that equitable estoppel will preclude a defendant from using the statute of limitations as a defense where it is the defendant's affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding. A plaintiff seeking to apply the doctrine of equitable estoppel must establish that subsequent and specific actions by defendants somehow kept [him or her] from timely bringing suit.  Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant. That is not the case here.

...Putter was aware of his condition within a few months of the surgery and was advised by four medical professionals — his primary care physician and his three sons — that he most likely contracted hepatitis C either in the hospital or during surgery. Dr. Cooperman also informed Putter that another patient had recently contracted hepatitis C after surgery at the same hospital with the same surgeon. Further, Putter indicated (during his deposition) that it "seemed pretty obvious" that he had contracted the disease during surgery. Although the question of whether a defendant should be equitably estopped is generally a question of fact, here, given Putter's level of awareness and subsequent inaction, equitable estoppel is inappropriate as a matter of law...

Putter had sufficient information available to require him to investigate whether there was a basis for a medical malpractice action. Putter never attempted to speak with the surgeon, Dr. Hall, concerning the operation — specifically, whether he could have contracted the disease during surgery. There is likewise no indication that he asked Dr. Farber about any other patient contracting hepatitis C, despite the information he had already received from Dr. Cooperman. Under these circumstances, even if Farber told Putter his disease was from "unknown sources," any reliance Putter placed on this conversation with Farber — a person affiliated with the defendant hospital — was unreasonable. Farber's statement did not alter Putter's timely awareness of the facts requiring him to make further inquiry before the statute of limitations expired. We note that, although the record reflects that certain individuals at North Shore were aware of Dr. Hall's illness, there is no indication that they allowed him to continue performing surgeries knowing that he posed a danger to patients.  (Internal citations and quotations omitted).

In my mind, the fact that prior to the expiration of the statute of limitations, a representative of the hospital definitively advised the plaintiff that his disease had been contracted from unknown sources is sufficient to, at the very least, create an issue of fact as to whether the defendant hospital's affirmative wrongdoing was the reason for the delay in the initiation of the lawsuit.  The plaintiff's reliance on the hospital representative's false assurances that he'd contracted the disease from an unknown origin was reasonable and a jury could have reasonably concluded that that false claim was the reason for the delay in filing suit within the statute of limitations.

It seems that in this case, I simply disagree with the Court's conclusion.  Does anyone else agree with me?

Fourth Department--Assumption of Risk Not Established

In Curtis v Town of Inlet, 2006 NYSlipOp 07005, the plaintiff alleged that he drove his snowmobile over an embankment and into a ravine as a result of the defendant's failure to appropriately mark the trail  so as to warn of an upcoming "Y' intersection.  The trial court granted the defendant's motion for summary judgment and dismissed the claim on the grounds that the plaintiff assumed the risk of his injuries.

The Fourth Department disagreed with the trial court and concluded that the defendant failed to meet its burden of proving the risks inherent in the sport of snowmobiling and likewise failed to establish that the trail at issue was free from defects not inherent in the sport, such as inadequate trail signage. 

The Court held that:

In order to establish its entitlement to judgment as a matter of law based on a plaintiff's assumption of risk, the defendant must establish that the plaintiff was aware of the allegedly defective or dangerous condition and the accompanying risk, although...Whether the plaintiff was aware of the risk assumed depends upon the background of the skill and experience of the particular plaintiff...We conclude in any event that plaintiff raised issues of fact with respect to his training and experience as a snowmobiler and whether, under the circumstances, the signage of the trails was sufficient to satisfy defendant's duty to "make the conditions as safe as they appear to be...  (Internal citations and quotations omitted).

Personally, I'll never understand why people insist on riding on itsy-bitsy unprotected vehicles at speeds of upwards of 100 mph in the freezing cold.  And, when I read comments like these, I'm inclined to believe that assumption of the risk should always apply to preclude suits by those who partake in this particular sport. 

But, then again, I prefer to sit in the ski lodges and sip hot cocoa by the fire while my companions hurtle themselves down steep hills with little sticks strapped to their feet, so my opinion on this issue should be taken with a grain--no, make that a shaker--of salt.

NY Court of Appeals Considers Whether Childproofing an Apartment is the Landlord's Responsibility

On Tuesday, in Rivera v Nelson Realty, LLC, 2006 NY Slip Op 07598, the New York Court of Appeals considered the issue of whether a landlord has a common law or statutory obligation to provide or install radiator covers in apartments rented to families with children.

The plaintiffs, the parents of a 3 year old who was seriously burned when he crawled onto an uncovered radiator, argued that Basso v Miller (40 NY2d 233, 241 [1976]) imposed a "simple" duty upon landowners to exercise reasonable care under the circumstances. 

The Court of Appeals disagreed, stating that: 

Basso did not abrogate the common law rule that, with some exceptions, a landlord is not liable to a tenant for dangerous conditions on the leased premises, unless a duty to repair the premises is imposed by statute, by regulation or by contract...(and) (e)ven in the absence of statute, a common-law duty to repair defective conditions within the home may and often does arise from the contractual relationship between landlord and tenant.

The Court then analyzed the common law duty of the landlord in regard to the facts presented and concluded that common law did not require the landlord to provide radiator covers:

Plaintiffs' claim is that an uncovered radiator in good working order, though not a hazard in a home occupied only by adults, is dangerous to children. No duty to remedy this alleged hazard is imposed by the Multiple Dwelling Law or arises under common law by virtue of the lease. Accordingly, any duty to protect children from uncovered radiators remains that of the tenant, unless some other statute or regulation imposes it on the landlord...

The Court then considered whether the NYC Administrative Code s. 27-809 required the landlord to install a radiator cover and concluded that a fair reading of the regulation did not obligate landlords to do so.  Accordingly the Court upheld the dismissal of the complaint.

One issue of interest to me in this case is the fact that the tenants had previously notified the landlord of their concerns regarding the uncovered radiator, so they were obviously aware of the danger presented.  In this type of situation, I suppose the only way for tenants to protect their children is to install or build radiators covers at their own expense.  Simply placing a couch or other furniture in front of the radiator would be insufficient to protect children. 

I suppose that's an issue that tenants with children will now how to take into consideration when deciding whether to lease a particular apartment.  Let's hope that your average tenant with kids is savvy enough to give that issue some thought prior to signing a lease agreement.