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.

Verdict Set Aside/New Trial Ordered, as Defendants' Expert's Opinion Was Speculative and Contrary to the Weight of the Evidence

In Montesione, et al v. Newell Rubbermaid, Inc. (Index No. 71324/14, decided on March 3, 2021), the Appellate Division, Second Department ordered that a trial judgment be reversed, on the law and facts, pursuant to a plaintiff's motion pursuant to CPLR 4404(a) - which requested to set aside a jury verdict as contrary to the weight of the evidence, and for a new trial to occur.  The case arose when the plaintiff claims to have sustained injuries after a step stool, manufactured by the defendant, collapsed while she stood on it during work.  She thereafter commenced a lawsuit against the defendant, and the case eventually went to trial.  

At the liability stage of the trial, the defendant's expert testified, over the plaintiff's objection, that the injured plaintiff's accident may have occurred because she slipped and fell onto the step stool.  Over the plaintiff's objection, the jury was asked the question, "Did the subject step stool collapse under the [injured] plaintiff while she was standing on it [on the incident date] causing the [injured] plaintiff's accident?"  The jury answered, "No" - thereby finding in favor of the defendant on the ground that the accident did not occur as the injured plaintiff said it did.  Thereafter, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial - and the Supreme Court denied the motion.  The plaintiff thereafter appealed, including arguing that the defendant's expert should not have been permitted to testify that the accident may have occurred when the injured plaintiff fell onto the step stool.

The Appellate Division, however, reversed the lower court's determination, holding the following: "CPLR 4404(a) states...that a court may set aside a jury verdict and...'order a new trial...where the verdict is contrary to the weight of the evidence.'  A jury verdict should not be set aside as contrary to the weight of the evidence unless the 'evidence so preponderate[s] in favor of the [moving party] that the jury could not have reached the verdict by any fair interpretation of the evidence'...In reviewing a judgment of Supreme Court, the Appellate division has the power to determine whether a particular factual question was correctly resolved by the trier of facts...It is settled and unquestioned law that opinion evidence must be based on facts in the records or personally known to the witness...He [or she] cannot reach his [or her' conclusion by assuming material facts not supported by evidence...'[A]n expert's opinion not based on facts is worthless'..."

The Appellate Court further holds: "We agree with the plaintiffs that the evidence so preponderates in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence...Moreover, the testimony of the defendant's expert that the accident may have happened because the injured plaintiff fell onto the step stool was speculative, lacked support in the record, and should not have been admitted in evidence...Therefore, the Supreme Court should have granted plaintiffs' motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial."

Salvatore R. Marino, Esq.

Homeowners Away on Vacation Not Insulated From Ice/Injury Incident on Their Property

In Giambruno v. Albrechet (Index No. 601245/18, recently decided on March 3, 2021), the Appellate Division, Second Department denied a defendants/homeowners' motion for summary judgment, holding, among other things, that they failed to demonstrate that no issues of fact existed regarding the issue of notice of an allegedly icy/dangerous condition.  The case arose due to an incident on February 18, 2015, in which the plaintiff - a letter carrier employed by the United States Postal Service - when delivering mail to the defendants/homeowners, was caused to slip, fall, and sustain injuries due to snow and/or ice on their ground.  He thereafter commenced a lawsuit against the homeowners, which included claims that defendants had actual and constructive notice of the snow and/or icy condition.  The defendants eventually filed a motion for summary judgment (which sought dismissal of the case), and the lower court denied it.

On appeal, the Appellate Division affirmed the lower court's ruling, holding as follows: "The evidence...demonstrated that it had snowed the day prior to the plaintiff's accident, and that the plaintiff observed snow on the ground immediately before he fell.  The defendants also submitted affidavits in which they attested that they did not shovel or disturb any snow or ice which may have been on their driveway.  Moreover, the defendants were not relieved of their 'duty to keep their property in a reasonably safe condition' even though they were away on vacation at the time of the plaintiff's accident...and they did not submit evidence demonstrating that they arranged for the inspection and maintenance of their property while they were away.  Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint."

Salvatore R. Marino, Esq.

Negligent Supervision Case Survives Summary Judgment Motion from School District

In Cole Nizen-Jacobellis v. Lindenhurst Union Free School District (Index No. 1616/16, and recently decided on February 24, 2021), the Appellate Division, Second Department denied a defendant school district's motion for summary judgment (which sought dismissal of a case), finding that issues of fact warranted the matter to proceed to trial.  The case arose due to an incident occurring on April 22, 2014, in which the plaintiff - then a 10th grade student at a pubic high school within the defendant Lindenhurst Union Free School District - suffered injuries after being attacked by a student (particularly, after a class ended, the plaintiff's head was thrust into a bulletin board by another student).  Thereafter, in February 2016, the plaintiff commenced a lawsuit against the defendant school district, alleging claims including negligent supervision.  At some point during the pre-trial process, the defendant moved for summary judgment, and the lower court granted the motion - thereby dismissing the lawsuit.

On appeal, however, the Appellate Division reversed (resulting in the case being restored), holding, among other things, the following: "While the plaintiff testified that he had never been physically assaulted by the other student prior to the subject incident, he testified that the other student always made threatening comments to him during Spanish class, of which seven or eight were serious in nature, and three or four were accompanied by a closed fist motion in an attempt to get the plaintiff to flinch.  The plaintiff also testified that he complained about these threats to the Spanish teacher, who had witnessed the other student make a closed fist motion toward the plaintiff on at least one or two occasions, and that he asked the teacher if she could do something about these threats, but she never said anything to the other student...With respect to proximate cause, the School District did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously 'that even the most intense supervision could not have prevented it'...The plaintiff testified that approximately 10 minutes before the end of class on the date of the assault, while the class was silently working on an assignment, the other student threatened out loud to stab him, which was overheard by the rest of the class and the teacher."

Salvatore R. Marino, Esq.