Dismissal of Snow and Ice Case in Bronx County

Anne Armstrong recently obtained a dismissal of a plaintiff's complaint in the Bronx by way of a summary judgment motion that she orally argued.  The plaintiff, Theresa Berrios, had sued the Firm's client - a general contractor - for injuries arising out a slip and fall on ice that had formed on a sidewalk around where the client had done construction work.  After oral argument, Justice Mitchell J. Danziger dismissed the complaint.  The decision is Theresa Berrios v. City of New York, index number 304746/2014, Supreme Court, Bronx County.
     
                                                                      9/19/19

Rodriguez v. City of New York – Court of Appeals decision is adverse to defense counsel’s ability to defend comparative negligence cases; holds that plaintiffs may obtain summary judgment on liability without establishing the absence of their own negligence

By:      Roy Anderson, Esq.

            Associate, New York

Date:   April 5, 2018

            The Court of Appeals dealt a significant blow to defense counsel in a recent decision, Carlos Rodriguez v. City of New York (2018), by holding that plaintiffs do not bear the burden of first establishing the absence of their own comparative negligence to obtain partial summary judgment as to liability in a negligence case. The Rodriguez decision arguably overrules Thoma v. Ronai, 189 A.D. 2d 635 (1st Dep’t 1993) aff’d 82 N.Y. 2d 736 (1993) and its progeny, which for two decades have been cited for the proposition that Plaintiffs moving for summary judgment on liability bear the burden of demonstrating the absence of any material issue of fact concerning their comparative negligence.

            In Rodriguez, the plaintiff was employed by the City of New York as a garage utility worker. He was injured while working in a garage “outfitting” sanitation trucks with tire chains and plows. An out-of-control sanitation truck skidded on ice and crashed into a car in the garage which then pinned the plaintiff up against a rack of tires. He sustained bodily injuries which necessitated a spinal fusion surgery and rendered him permanently disabled from working.

            After discovery, plaintiff and the City of New York moved for summary judgment on the issue of liability.  Plaintiff’s motion argued that even if there was an issue of fact with respect to his comparative fault, he was entitled to summary judgment on the issue of Defendant’s liability.  The Supreme Court denied both motions and held that there were triable issues of fact regarding foreseeability, causation, and plaintiff’s comparative negligence.  The First Department relied on Thoma and affirmed the denial of plaintiff’s motion because he failed to make a prima facie showing that he was free of comparative negligence.  In a split decision, the Court of Appeals reversed, holding that placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with New York’s system of pure comparative negligence, which was adopted in 1975 and is codified in Article 14-A, Sections 1411 and 1412 of the Civil Practice Law and Rules (“CPLR”).  The Court explained that in a pure comparative negligence state, such as New York, courts are directed to consider a plaintiff’s comparative fault only when considering damages; therefore, the Rodriguez decision gives effect to the plain language and legislative intent of Sections 1411 and 1412.

            Section 1411 provides, in relevant part, that in an action for personal injuries a plaintiff’s culpable conduct “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 bears to the culpable conduct which caused the damages.”  Section 1412 further provides that “[c]ulpable conduct claimed in diminution of damages, in accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense.”

            The Rodriguez opinion explains that the legislature’s intent in enacting Sections 1411 and 1412 was “to bring New York law into conformity with the majority rule” which is that “a plaintiff’s comparative negligence is not a complete defense to be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant.”  Thus, the Court of Appeals held that “[p]lacing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the language of CPLR 1412.”  The Court also rejected the City of New York’s argument that comparative fault should be considered a defense because “it is not a defense to any element (breach, duty, causation) of plaintiff’s prima facie cause of action for negligence.”

            Significantly, Rodriguez purports to distinguish – without explicitly overruling – Thoma, because in that case the First Department did not address the significance of Article 14-A and the plaintiff effectively conceded that if she failed to establish the absence of a material fact as to her negligence then summary judgment on the issue of liability would be denied.  Conversely, the Rodriguez plaintiff explicitly argued that he was entitled to summary judgment, even if there was an issue of fact regarding his comparative fault. 

            The Rodriguez dissent rejects the majority’s reasoning and argues that the rule in New York is and should remain “that a plaintiff must demonstrate the absence of issues of fact concerning both defendant’s negligence and its own comparative fault in order to obtain summary judgment.”  The dissent further rejects that the Court was not overruling Thoma because “[s]ince Thoma, each Department has held that a plaintiff is precluded from obtaining summary judgment where issues of fact exist concerning comparative fault.”  The dissent also calls attention to the inequity of assessing a percentage of plaintiff’s culpability distinct from the defendant’s and noted that “[d]eterminations of degrees of fault should be made as a whole, and assessing one party’s fault with a preconceived idea of the other party’s liability is inherently unfair.”

            It is not hard to imagine the injurious effect that Rodriguez will have on defendants when it comes time for juries to apportion liability.  As articulated by the dissent, defendants will effectively be “entering the batter’s box with two strikes already called.”

SLIPPERY STAIRS AND THE LABOR LAW: NEW GUIDANCE, 

By Arthur P. Xanthos

Defense counsel and carriers should be aware of the recent Court of Appeals pronouncement on Labor Law 240(1) cases, particularly because this latest pronouncement provides a roadmap for defeating plaintiffs’ common stratagem – the summary judgment motion.

The decision is O'Brien v Port Auth. of N.Y. & N.J., 2017 N.Y. LEXIS 725, 2017 NY Slip Op 02466 (N.Y. Mar. 30, 2017).  The facts have been seen many times:  Plaintiff working on construction site, while descending an exterior temporary scaffold staircase which was wet and slippery due to rain, slips and falls thereby injuring himself.  Plaintiff sues all relevant parties and the focus of the complaint is Labor Law 240(1).

Plaintiff made the traditional summary judgment motion, supported by an expert affidavit from a professional engineer who opined that the stairs were "not in compliance with good and accepted standards of construction site safety and practice", that slippery conditions on stairways should be eliminated before use, and that the stairs in question were smaller, narrower, more worn, and steeper than typical stairs.  The expert concluded that these conditions coupled with the fact that the stairs were wet due to rain created a dangerous condition that was not in compliance with good and accepted standards of construction site safety and created a significant risk of slipping on the stairs and of thus falling down the stairs.

In opposition, defendants submitted affidavits from a construction safety expert, who disagreed with plaintiff’s expert, and opined that the staircase was designed for both indoor and outdoor use and provided traction acceptable within industry standards and practice in times of inclement weather. He further disagreed that the steps were too narrow, or that the step treads had been worn down.  He noted that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction.  He concluded that these anti-slip measures were sufficient. The defendants’ expert also opined that the use of both handrails could have helped prevent plaintiff's fall.

Not surprisingly, the lower court and the appellate division ruled in favor of the plaintiff on the motion.  The Court of Appeals, however, reversed plaintiff’s summary judgment award.  The Court’s primary rationale was the following:  the mere fact a plaintiff falls from a height on a construction site does not give rise to automatic Labor Law 240(1) liability, and where the defendants raise questions of fact as to whether a safety device (in the O’Brien case, the staircase) provided adequate protection to the plaintiff, summary judgment is not warranted.

While this decision and rationale is not a technical rewrite of Labor Law 240(1), it does mark a sea change in what presumptions the lower courts should make in analyzing these motions.  Heretofore, the process with some exceptions has been maddeningly difficult for the defense, because once a court heard that a plaintiff had fallen from a height and was injured, the court presumed – regardless of contradicting expert affidavits -- that inadequate safety devices were in place.  In other words, courts have been utilizing the fact of the fall to impose automatic liability. 

O’Brien counsels the courts against making that presumption.

                                                     -APX 5/26/17

Adjacent Landowner Liability for City Sidewalk Defects, by Arthur Xanthos

For nearly a decade, the New York City Administrative Code has imposed on landowners the responsibility of maintaining the sidewalks adjacent to the landowner's premises.  Thus, a passerby who slips and falls on the sidewalk outside your building can look to the building owner as a possible defendant.


By definition, condominium boards are not landowners.  So if a passerby slips and falls on a sidewalk adjacent to a condominium building, who is the adjacent landowner for purposes of liability?


This Firm has seen plaintiff counsel sue the condominium itself, which we believe eventually results in a dismissal because the condominium is not a landowner and the NYC Administrative Code provision is interpreted strictly.  So that leaves one other possibility on whom to impose liability for a sidewalk defect -- the owner of the particular condominium unit closest to the site of the trip and fall (occupied most likely by a ground floor commercial tenant of the unit owner).


In light of uncertain litigation with these quirky facts, ground floor condominium unit owners who rent out their unit should obligate the tenant to maintain and repair the sidewalk adjacent to the unit, and to defend and indemnify the unit owner (and the condominium board of managers) in the event of a lawsuit.  We note that while many form leases obligate tenant to keep the adjacent sidewalk clean, they leave unclear the responsibility for sidewalk maintenance and repair.


Of course, the condominium unit owner should also insist on proof that the tenant has adequate liability insurance and has named the unit owner (and, of course, the board of managers) as additional insureds on the insurance policy.
     

                                                                                                 -APX 1/19/14

Mold Up in the Air, by Arthur Xanthos

On January 13, 2014, the New York State Court of Appeals heard oral argument in the appeal of Cornell v. 360 W. 51^st Realty, which is the latest First Department word on whether and when a claim alleging bodily injury due to mold can survive for presentment to a jury.

Cornell was decided by the First Department on March 6, 2012, and is generally regarded to have made it easier for a plaintiff’s mold claim to survive summary judgment under a Frye analysis.  (Frye requires that for a plaintiff’s claim to survive, it must be generally accepted in the relevant scientific community that the offending agent (mold, asbestos, etc.) causes the claimed injury.)

A decision is likely months away but if the questions from the Court of Appeals bench during oral argument are any indication, Cornell stands an excellent chance of reversal or modification.

The Justices focused primarily on the difference between the word “causation”, and the term “association”.  While science recognizes many associations, it recognizes far fewer causations -- and that is the entire point of Frye.  If the relevant scientific community does not generally accept that A (e.g., mold) causes B (e.g., asthma), then plaintiff cannot prove causation and must be turned away. The Cornell plaintiff showed “association” between mold and illness; will that be enough for plaintiff’s case to survive for presentment to a jury?

About two years ago, this firm handled a Frye hearing in Supreme Court, Kings County in which the sitting Justice presciently asked the same question the Court of Appeals just did -- what is the difference between causation and association?  In other words, do scientists (doctors) use “association” to mean the same thing that a layperson means by “causation”?  This question gets at the very root of the confusion in some of the case law on whether to allow expert testimony under Frye.

Hypotheticals, some absurd, highlight the issue.  There may be a strong association between men with grey hair, and mortality; or between membership in a sailing club, and sunburn; or between those who make appointments with Dr. Smith, and sickness.  But it would never be argued seriously that the former causes the latter.  That, in a nutshell, is why New York requires proof that causation is generally accepted in the relevant scientific community.

So Cornell will likely turn on whether the Court of Appeals views causation and association as starkly different as these examples illustrate, or whether it accepts the more highbrow argument that causation and association are the same thing, differing only in the degree of experimental proof available for each.

                                                                                    - APX 1/16/14