Monday, May 22, 2023

NY Court of Appeals/Grady Decision and the "Assumption of Risk" Doctrine

The doctrine of “assumption of risk” has been in place in New York since the enactment of C.P.L.R. 1411 in 1975.  It is applicable only in very particular circumstances where a participant takes part in a sport and/or recreational activity, and the danger inherent in the activity is obvious and necessary.  The participant in such an activity must be aware of the risk, appreciate the nature of the risk, and voluntarily assume the risk.  Exceptions to these are if the risks are hidden or unreasonably enhanced.

In the recent New York Court of Appeals decision Grady v. Chenango Valley Central School District (2023 WL 3102723, decided on April 27, 2023), two cases within the context of high school athletics and concerning the doctrine of assumption of risk were reviewed.  In Secky, the plaintiff, while playing basketball, was injured during a drill in which teammates competed to retrieve a rebound ball.  The plaintiff sustained a serious injury to his shoulder when another player collided with him and caused him to fall into the bleachers.  The Court affirmed defendants’ motion for summary judgment (thereby dismissing the case) because it held the plaintiff’s injury was inherent in the sport of basketball and therefore, he assumed the risk of injury.  However, in Grady, the plaintiff sustained vision loss in one of his eyes while participating in a complex baseball drill involving multiple balls being thrown and protective screens set up on the field in various locations.  In this case, the Court reversed the lower courts’ granting of defendants’ motion for summary judgment – thereby restoring the case – because it held the use of screens and the complexity of the practice/drill created a unique and dangerous condition that rose above the usual inherent dangers in this particular sport and within the context of a high-school athletics program (and as a result, the Court held that one does not assume the risk of same).

Of interest in this decision is the dissent by Justice Rivera, who concurs in Grady but dissents in Secky (a dissent is when a Judge disagrees with the majority decision of the Court and states their own opinion after the decision).  Justice Rivera discusses the legislative intent of C.P.L.R. 1411, which “expressly abolished contributory negligence and assumption of risk as absolute defenses,”  and that the intent of the legislation was to allow plaintiffs to recover in part for injuries they are partially liable for.    Justice Rivera further analyzes the broad interpretation of the definition of “recreational activity,” as well as discusses in detail numerous publications on the abuse and retainment of the assumption of risk doctrine in the court system.  Justice Rivera suggests that assumption of risk should be abolished, and such an abolition will not cause the dire consequences to sporting events and activities suggested in prior case analysis, and a comparative fault analysis is sufficient in these cases. Justice Rivera further states that the Court should reverse both Grady and Secky and remit for trial with juries instructed on comparative fault.

Giulia R. Marino, Esq.

Sunday, November 13, 2022

MVAIC Petition Denied as Petitioner Did Not Demonstrate Reasonable Efforts to Ascertain the Identity of Owner/Operator of Vehicle in Hit-and-Run Accident

In the Matter of Cymba Melville v. Motor Vehicle Accident Indemnification Corporation (decided on or around November 14 2022, Index No. 705389/19), the Appellate Division, Second Department affirmed a Queens County Supreme Court Order which denied a petition, in a hit-and-run accident, which sought permission to file a lawsuit against the Motor Vehicle Accident Indemnification Corporation (“MVAIC”).  


The case arose when the petitioner allegedly was injured when a vehicle in which she was a passenger in was struck by another vehicle.  As she initially claimed to not know the identity of the owner and/or operator of the other vehicle – and as she presumably did not know whether that vehicle was insured, as the vehicle she was in was likely uninsured, and as she likely did not have any automobile insurance of her own (including by way of her household) – then she filed a Notice of Intention to Make a Claim with MVAIC (as MVAIC, a non-profit organization created by NYS legislation, is often a last resort and option for injured persons in automobile accidents when there is no other available insurance).


The Supreme Court, however, denied the petition, and the Appellate Division affirmed – with a holding that included the following: “The Supreme Court did not err in denying the petition pursuant to Insurance Law Section 5218 for permission to commence an action against MVAIC to recover damages for personal injuries sustained and caused by the negligence of an unknown party.  MVAIC was created in 1958 to compensate innocent victims of hit-and-run motor vehicle accidents…Here, although there is no dispute that the petitioner was a qualified person pursuant to Insurance Law Section 5202(b), the petitioner failed to sustain her burden of demonstrating that the accident was one in which the identity of the owner and operator of the vehicle was unknown or not readily ascertainable through reasonable efforts.”  The Court further noted – and what appears to be a significant and decisive factor in the Court’s reasoning – is, “While testifying at an examination under oath, the petitioner identified the driver of the vehicle which struck her vehicle as an individual with whom she was acquainted.”  


Salvatore R. Marino, Esq.

High School Football Player Did Not "Assume the Risk" of Weightlifting Injury

Annitto, etc. v. Smithtown Central School District (decided on or around November 4, 2022, Index No. 611093/17) highlights the “assumption of risk” doctrine/defense in the context of high school athletic programs.  In the case, the plaintiff, on a high school football team, sustained serious injuries (including one of his fingers being crushed) when he was engaging in weight training exercises at the high school.  The incident happened during an off-season weight training test overseen by the school’s football coach.  Thereafter, the plaintiff’s mother commenced a lawsuit on his behalf against the school and in the Suffolk County Supreme Court, including, among other things, alleging negligent supervision.  At some point during the pre-trial process, the school moved to dismiss the case by way of a summary judgment motion – including asserting an argument that the plaintiff “assumed the risk” – and the Supreme Court granted the motion.


On appeal, however, the Appellate Division, Second Department reversed (thereby restoring the case), and with its decision including the following: “While the weight test was related to the infant plaintiff’s conditioning, and was occasioned by his membership on the school’s football team, that does not mean that the risk of being injured while lifting a heavy bar is inherent in the sport of football.  We cannot conclude that the fact that a person is getting in shape to play a sport means that the person assumes all of the risks associated with getting in shape, such that a school district would have no duty to its students to provide safe conditions for lifting weights and proper supervision of that activity.”


Salvatore R. Marino, Esq.

Sunday, October 16, 2022

Slip-and-Fall/Negligent Design and Construction Case Dismissed Due to Inadequate Expert

In Shuttleworth v. Saint Margaret’s Roman Catholic Church in Middle Village, et al (Index No. 703517/19, Queens County, decided on or around October 14, 2022), the Appellate Division, Second Department reiterated the importance of a plaintiff’s expert, in a slip-and-fall/premise liability case which alleges negligent design and construction of property, to include in his or her opinion any “violations of industry-wide standards or accepted practices.”


In Shuttleworth, the plaintiff allegedly slipped and fell on a metal drainage grate located within the defendant’s exterior parking lot in Queens.  At the time, it was raining, and the wet condition of the metal grating allegedly caused the plaintiff to slip, fall and sustain serious injuries.  Thereafter, the plaintiff commenced a personal injury lawsuit against the defendant proper owner and/or operator.  At some point in the litigation, the defendant filed a motion for summary judgment – which sought dismissal of the case – and argued, among other things, that it was not negligence in causing the accident and resulting injuries.


A Justice of the Queens County Supreme Court denied the defendants motion – and the defendant thereafter appealed.  On appeal, however, the Appellate Division, Second Department reversed – which resulted in the plaintiff’s case being dismissed – and in its decision held the following: “The mere fact that the grate was wet from the falling rain was insufficient to establish the existence of a dangerous condition…In opposition, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff’s contention, the conclusion of her expert that the parking lot was defectively designed, without setting forth any violations of industry-wide standards or accepted practices in the field of parking lot design and construction, was insufficient to raise a triable issue of fact…Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.”


As the Shuttleworth appellate decision focuses mostly on the plaintiff’s claims of negligent design and construction of the premises and/or subject metal grating system, then it is unknown (from reviewing the decision alone) if the plaintiff did not also have other viable claims or arguments, including: that defendant had actual and/or constructive notice of the dangerously slippery condition (which would be that the defendant knew, or should have known, that water existed on the grate for a substantial period of time prior to the accident - and that it should have timely cleaned the area and made it safe); and/or that the defendant created the dangerous condition (such as, for example, due to faulty maintenance services).

Salvatore R. Marino, Esq.

Sunday, February 27, 2022

Contractors Not Liable Despite Hazardous Condition Existing

In Hodzic v. Cary, Inc, et al (decided February 23, 2022), 22 NY Slip Op 01149, the Appellate Division, Second Department affirmed a judgment dismissing a trip-and-fall/injury case against a construction contractor and subcontractor .  The case arose after the plaintiff, an employee of a bank, alleged injuries after she tripped and fell due to a height differential between floors of the premises of her employer/bank.  

Prior to the incident, the bank hired M. Cary, Inc. as a general contractor for a renovation project at the bank, and this project included raising the floor adjacent to the bank's printer room.  The general contractor hired the defendant Dimensional Drywall & Acoustics, LLC to perform that work.  The plans and specifications, which were prepared by the bank's architect, did not include raising the floor in the printer room or installing a ramp between the printer room and the floor in the adjacent room.  As a result of the foregoing, and after the work was completed, there was a height differential of approximately 2 inches between the floor in the printer room and the floor in the adjacent room - thereby eventually leading the plaintiff to trip, fall and sustain injuries due to this condition.

As a result of her incident/injuries, in March 2012 the plaintiff commenced a lawsuit against, amongst others, the general contractor and the subcontractor.  The case went to trial, and the defendant contractors made separate applications pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against each of them.  The Supreme Court granted the applications, thereby dismissing plaintiff's case against the contractors, and thereafter the plaintiff appealed the decision to the Appellate Division, Second Department.

The Appellate Division held, among other things, the following: "To be awarded judgment as a matter of law pursuant to CPLR 4401, there must be 'no rational process by which the fact trier could base a finding in favor of the nonmoving party' upon the evidence presented at trial...Here, the Supreme Court properly granted the defendants' applications for a directed verdict based upon the plaintiff's failure to establish that the defendants owed her a duty of care.  Generally, an independent contractor owes no tort duty of care to third parties [citing Espinal v. Melville snow Contrs., 98 NY2d 136).  One exception to that general rule is 'where...the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm'... Another exception to that rule is where the contracting party has 'entirely displaced the other party's duty to maintain the premises safely.'"

The Court further held the following: the contractors in this case did not owe a duty of care to the plaintiff; "the defendants' awareness of the height differential and failure to correct and warn of the defect did not launch a force or instrument of harm for which they may be liable"; the plans were not so "defective" that "a contractor of ordinary prudence would not have performed the work"; and the contractors did not entirely displace the bank's duty to maintain the premises.

The Court, however, does not elaborate further as to why the contractors did not "launch a force or instrument of harm."  The architect plans did not include that the floor should be raised, yet the floor appears to have been raised due to the contractors' work (or, at least, this is what the plaintiff in this action seems to have argued).  Perhaps, the Court believed that the plaintiff did not present adequate evidence at trial to demonstrate same.

The decision also does not state if the plaintiff was working at the time of the incident and if she was injured during the course of her employment.  Assuming that she was,  then she was likely unable to sue her employer due to the Workers Compensation law (as this law allows an injured worker to obtain Workers Compensation benefits from an employer, but it also prevents the employee from being able to sue the employer).  In this scenario, one could attempt to obtain additional compensation by way of a lawsuit against a non-employer/third-party - such as, for example, construction contractors - and perhaps this is what occurred in the Hodzig case.  One benefit of being able to sue a third-party in a workplace/injury scenario (as opposed to relying on just receiving Workers Compensation benefits) is because Workers Compensation benefits are limited in scope, and do not include damages such as pain and suffering.

Salvatore R. Marino, Esq.

Saturday, May 8, 2021

Plaintiff Swimming Official Did Not "Assume the Risk" of Injury Due to Water Leaking From Negligently Maintained Pipe Onto Pool Deck

In O'Brien v. Asphalt Green, Inc. (Index No. 12847/14, decided on April 28, 2021), a denial of a defendant pool operator's motion for summary judgment was affirmed by the Appellate Division, Second Department, for reasons including that the plaintiff did not "assume the risk" of injury when slipping and falling on a wet pool deck due to water leaking from a defective pipe.  Particularly, the case arose when the plaintiff, who was a swimming official, allegedly was injured when she slipped and fell on a wet condition on a pool deck at an indoor swimming facility located in Manhattan, and which was operated by the defendant Asphalt Green, Inc.  The plaintiff thereafter filed a lawsuit against the pool operator, but before trial the defendant moved for summary judgment (which sought to dismiss the plaintiff's case) contending, among other things, that it cannot be held liable for the plaintiff's accident since the wet condition was necessarily incidental to the use of an indoor pool, and that no triable issues of fact exist for trial.  The Queens County Supreme Court denied the motion, and the defendant appealed.

On appeal, the Appellate Division affirmed the lower court's decision, holding, among other things, the following: "The defendant failed to establish, prima facie, that water accumulation on an indoor pool deck from condensation that had formed and dripped from overhead pipes or ductwork was necessarily incidental to the use of an indoor swimming facility...Further, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of assumption of risk.  Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity 'consents to those commonly appreciated risks [that] are inherent in an arise out of the nature of the sport generally and flow from such participation'...Here, the hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility...Further, 'the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises'...."

Salvatore R. Marino, Esq.

Plaintiff Customer's Fall/Injury Case Dismissed as "Seconds" Before Incident He Stepped Onto Allegedly Defective Area Without Issue

In Vaughan v. Triumphant Church of Jesus Christ, et al (Index No. 501243/15, decided on April 28, 2021), a plaintiff's fall/injury case was dismissed as the Appellate Division, Second Department held, among other things, that a defendant property owner did not have sufficient notice of the alleged defect in which plaintiff claims caused his fall and subsequent injuries.  The case arose when the plaintiff, while walking inside a deli (which was operated by United Express Deli, and which leased the premises from the property owner Triumphant Church of Jesus Christ) where he was a customer, sustained personal injuries when he fell through an open trapdoor in the premises ground.  The plaintiff thereafter commenced a lawsuit against entities including the owner of the premises, and the defendant owner eventually moved to dismiss the case (by way of a pre-trial motion for summary judgment).  The Supreme Court, Kings County, denied the motion, thereby leading the defendant property owner to appeal.

On appeal, however, the Appellate Division reversed the lower court's decision, thereby dismissing the plaintiff's case, holding, among other things, the following: "...the owner established, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive notice of its existence...At his deposition, the plaintiff testified that he walked over the trapdoor, and then 'seconds' later when he stepped back, he fell through a hole caused by the open trapdoor.  Accordingly, even though the owner did not present evidence of the last time it inspected the trapdoor, the plaintiff's testimony establishes lack of constructive notice as a matter of law...."

Salvatore R Marino, Esq.