Questions of Fact Exist Regarding Ice Formation Prior to Snow Storm

In Townsend v. City of New York, et al (Index No. 711239/17, Queens County), the Appellate Division, Second Department recently affirmed a lower court's denial of a defendant's motion for summary judgment in a slip-and-fall due to ice case.  The case arose in January 2017, when the plaintiff allegedly slipped and fell on a walkway at the Queensbridge Houses South, in Long Island City.  At his 50-H hearings, the plaintiff testified that he fell due to ice; and at his deposition during the discovery process, he testified that the hazard was "dirty, crunchy" snow.  It is undisputed that at the time the plaintiff fell, it was snowing, with at least some snow accumulated on the ground.  At some point during the litigation, the defense filed a motion for summary judgment, seeking to dismiss the case by way of the "storm in progress" doctrine (which, if accepted by the Court, could result in a case dismissal).  The motion was denied, and the defense appealed.

The Appellate Division, Second Department notes applicable case law, including a case recently handled by Marino & Marino, P.C. titled Maharaj v. Kreidenweis (in which this firm, in March 2023, successfully defeated on appeal a motion for summary judgment from a defendant property owner in a slip-and-fall/ice case), as the Court stated the following: "As the proponent...of the motion for summary judgment, the defendant...had the burden of establishing, prima facia, that [it] neither created the icy condition nor had actual or constructive notice of its existence for a sufficient length of time to discovery and remedy it [citing Maharaj v. Kreidenweis, 214 AD3d 717, 719]."

The Court then goes on to hold that the lower court properly denied the defendants' motion - as even though the defense properly satisfies their summary judgment burden, the plaintiff, in opposition, raised triable issues of fact.  Particularly, the Court held: "An affidavit of the plaintiff's expert, in combination with the plaintiff's testimony and the sworn statement of the sole witness to the accident, was sufficient to raise a triable issue of fact as to whether the plaintiff slipped on ice, rather than snow, and whether such ice formed prior to the storm such that the defendant had a duty to make the path safe prior to the alleged time of the plaintiff's accident."

Salvatore R. Marino, Esq.

School District/Negligent Supervision Case Dismissed

In C.P.G., Etc., et al v. Uniondale School District (Index No. 612957/19, Nassau County), an infant/minor plaintiff, by way of his father, brought a lawsuit against a school district alleging, among other things, that the plaintiff sustained injuries due to negligent supervision by way of the school's employees.  Particularly, the action alleged that the infant plaintiff, who was an eighth grade student at a school located within the defendant Uniondale School District, was injured while playing a "pickup" game of soccer on a field at Turtle Hook Middle School during a school-sponsored event; it is further alleged that the infant plaintiff was injured due to dangerous conditions on the field - including, it is claimed, pebbles and wet grass - and negligent supervision by the school district's employees.  At some point during the litigation, the defendant school district moved for summary judgment (seeking dismissal of the case), and the trial court Judge denied the motion.

On appeal, however, the Appellate Division, Second Department reversed the lower court's decision - which, in effect, dismissed the plaintiff's case.  The basis of the appellate decision is the application of the doctrine of "assumption of risk," as the Court notes, "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation...[and] Participants are not deemed to have assumed the risk of reckless or intentional conduct, or concealed or unreasonably increased risks."  The Court then holds that in the instant case, "...merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision"; and "To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields."  

The Court further holds that the plaintiff fails to raise a triable issue of fact (which, in turn, allows the Court to grant the defendants' motion) - however, no explanation is provided by the Court as to why this is (such as what arguments and/or evidence was submitted by the plaintiff in opposition to the motion).  Absent from the appellate decision as well is a discussion with regards to the actual supervision and monitoring, if any, by the school district teachers/employees in relation to the infant plaintiff (which is arguably relevant, to an extent; as, for example, if the employees are not watching the infant plaintiff at all, and if the employees knew or should have known that an injury is likely to occur given the underlying facts and circumstances, then perhaps issues of fact could exist).

Salvatore R. Marino, Esq.

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 et.al. (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.