New York Civil Law

New York Court of Appeals Will Address Appellate Division Department Split on Negligent Security Measures

A Brooklyn Heights resident looks out her window and sees apartment buildings across the water in Battery Park City in Manhattan. Even though, the buildings are a few miles apart, the common-law for the property owners of each of those buildings is not the same concerning liability for negligent security measures.

Some time during the new year, the New York Court of Appeals will address the conflict between the First and Second Appellate Division Departments on the common-law duty to take minimal precautions to take minimal precautions to protect tenants from foreseeable harm. The following issue is squarely presented in the Appellate Division, Second Department case Scurry v New York City Hous. Auth.: Whether a “targeted” attack by a perpetrator against a victim on premises, as distinguished from a “random” attack on premises, is, by definition, an independent intervening cause that insulates a property owner from liability for negligent security measures, as a matter of law. This post is Part 1 of a three-part post.

Justice Dillon of the New York Appellate Division, Second Department is a legal powerhouse. In Scurry v New York City Hous. Auth., Justice Dillon writes a well-reasoned opinion on whether a property owner can prevail on summary judgment when the plaintiff is alleging he or she failed to take reasonable security measures.

In Scurry, Justice Dillon identifies a line of case from the Appellate Division, First Department holding that targeted attacks break the proximate causal link between the reasonableness of security measures by the property owner and the targeted crime itself. In Scurry, the Second Department draws a line in the sand, holding that “depending on the circumstances, the issue of proximate causality may present a triable issue of fact.”

Justice Dillon’s analysis is a fine lesson in foreseeability and proximate cause. Landlords are subject to a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including harm from the foreseeable criminal conduct of third persons. For example, a persistent broken front door lock in a high-crime neighborhood might expose the landlord to liability.

Justice Dillon explains the First Department’s different analyses for criminal acts that are intentionally “targeted” against a particular victim as opposed to criminal acts that are “opportunistic” against random victims. Justice Dillon states, “Where the criminal act is targeted, the First Department deems the causal nexus between the plaintiff’s injury and the landowner’s duty of care to be severed as a matter of law . . . .” He explains, “by contrast, where the criminal act is perpetrated in a random manner, the First Department deems the causal nexus between the plaintiff’s injury and the landowner’s duty of care as potentially raising a triable issue of fact on a summary judgment motion. Notably, Justice Dillon explains the First Department’s rationale in distinguishing between the two types of attacks: In actions involving premeditated attacks upon known victims, it is unlikely than any reasonable security measures would have deterred the criminal attack.

Justice Dillon notes that the Second Department does not draw such a distinction.

In the next part of this three-part post, I will discuss the unfortunate facts in Scurry and the Second Department’s analysis.

Photo Credit: Daniel Foster

Wrecks, Lies, and Videotape - Two Recent New York Appellate Division Cases Consider Video Record Evidence on Summary Judgment Motions

What do Buggles, George Orwell, Pappas v New York City Tr. Auth. , and Zhong v Matranga have in common? They all recognize the impact of the medium of video.

As technology has advanced in the last ten years, so has the ubiquity of video recordings in our daily lives. Videos aren’t just for Youtube, Tik Tok, and Instagram posting. The medium has found its way into summary judgment motions, too. The decisions in Zhong and Pappas are two recent examples of the power of video recordings.

The facts in Pappas show that, without a video recording, the case would have been a garden-variety motor-vehicle accident with conflicting testimony. The personal-injury action stemmed from a rear-end collision in which the defendant bus driver rear-ended the vehicle the plaintiff George Pappas was driving. George’s wife Donna was a passenger in the car. Both plaintiffs separately testified that they had been stopped for 5 to 10 seconds when the bus struck them from the rear without warning. George testified that he had stopped the vehicle because the traffic light was red.

The bus driver told a different story. He testified at his deposition that the accident occurred because the plaintiffs’ vehicle moved into the bus’s lane in front of the bus. Without warning, the plaintiffs abruptly stopped in front of the bus even though a green light was is in their favor.

The defendants (the bus driver and the owner of the bus) moved for summary judgment to dismiss the negligence action based on the emergency doctrine. Considering the conflicting testimony, the Second Department noted that, without more, triable of issues existed on how the accident happened and who was at fault. The Second Department further noted, however, that the bus surveillance video, which the defendants submitted in support of their motion, eliminated any triable issues of fact. The Court noted that the video recording supported the bus driver’s version of how the accident happened, concluding that the bus operator was confronted with an emergency not of his own making and was left with “virtually no opportunity to avoid a collision . . . .” Accordingly, the Court affirmed Supreme Court’s grant of summary judgment dismissing the complaint.

The video recording in Zhong had an equally damaging result on a motion for summary judgment. The case concerned a bicycle/pedestrian accident. The defendant in Zhong was riding his bicycle in New York City. The collision with the plaintiff pedestrian happened as the defendant was riding his bicycle with the right-of-way through an intersection. He traveled in the marked bicycle lane at a speed of approximately 14 miles per hour, well within the posted speed limit and within the average cruising speed for bicycle traffic proceeding through the intersection.

The accident happened when the plaintiff suddenly entered the marked bicycle lane against a red light for pedestrian traffic and within a few feet of the defendant. The defendant testified at his deposition that when the plaintiff took two steps into the bicycle lane, he (1) “immediately braked and yelled ‘watch out’”; collided with her in the middle of the bicycle lane approximately two seconds later; (3) didn’t have time to stop, change lanes or go around the plaintiff; and (4) jammed on the brakes and yelled at the plaintiff.

The defendant moved for summary judgment, proffering an expert affidavit in which the expert opined on he numerous reasons why the defendant was not negligent. In opposition, the plaintiff also proffered an expert affidavit in which the expert opined that even if the defendant was traveling under the speed limit, he was still negligent because the defendant bicyclist was traveling much faster than the three other bicyclists riding near him. Without a video, this would have been one of those battle-of-the-experts situations where the non-movant raised triable issues of fact to defeat a summary judgment motion.

The parties had proffered a copy of a video of the intersection that captured the incident. The video was the deciding factor in the case. The First Department concluded, “There is only one version of the accident: the one shown in the video, described in [the] defendant’s testimony, and corroborated by [the] plaintiff.” Granting the defendant’s summary judgment motion, the Court reasoned that the video showed that the plaintiff (1) did not look in the direction of the defendant, (2) could not state the distance between her and then defendant when she stepped off the curb, (3) did not remember being struck by the bicycle, and (4) only remembered someone yelling “watch out” while “very, very close” to her right ear. The First Department noted that the plaintiff’s testimony synced with the defendant’s testimony that the plaintiff darted out onto the bicycle’s path when he was within a few feet from her.

The First Department concluded that the plaintiff failed to raise an issue of fact, noting there was no evidence that the defendant operated his bicycle at an excessive rate of speed, in a negligent manner, or without due care to avoid colliding with any pedestrian.

For plaintiffs and defendants alike, the Pappas and Zhong decisions are reminders remind to request all available, relevant video recordings in their respective discovery demands. Early investigation of an accident will help attorneys unearth recordings of the relevant accident or incident. As the Pappas and Zhong decisions demonstrate, a video recording can mean the difference between a dismissal and going to trial with conflicting fact and expert witness testimony.

Thank you to my partner Brendan Fitzpatrick for bringing these cases to my attention.

(40 years ago this week, the Australian band Men at Work was fighting its way up the Billboard 100 charts with the No. 12 song, "Who Can It Be Now?" Cue the obligatory but awesome saxophone solo)

Appellate Division, Second Judicial Department Historic All African-American Bench

On Friday, September 9, 2022, the Appellate Division, Second Judicial Department, arguments on appeal will be heard for the first time by an all African-American bench in the Court’s historic courtroom at 45 Monroe Place, Brooklyn, New York.

Justice Presiding Associated Justice Valerie Brathwaite Nelson

Associate Justice Cheryl E. Chambers

Associate Justice Paul Wooten

Associate Justice William G. Ford

The arguments will be live-streamed and all who wish to view this historic event can access it through the Court’s website starting at the 10 A.M. calendar call.

(40 years ago this week a young, rebellious rocker going by the name John Cougar was climbing the Hot 100 with his anthemic song, "Jack and Diane" -- No. 4 with a bullet)

#nycivillaw

Photo by Joseph

Appellate Division, Fourth Department Recently Addresses Impact of Coworker's Actions under Labor Law sec. 240 (1) Claim

Can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct. The Fourth Department recently addressed this issue in Thomas v North Country Family Health Ctr., Inc.

NY Court of Appeals’ caselaw tells us that a worker is the sole proximate cause of an accident where “plaintiff had adequate safety devices available; that he [or she] knew both that they were available and that he [or she] was expected to use them; that he [or she] chose for no good reason not to do so; and that had he [or she] not made that choice he [or she] would not have been injured” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]).

Some cases present straightforward facts, making a determination of sole proximate “easier” than other cases. For example, the Court of Appeals held in Montgomery v Federal Express Corp. (4 NY3d 805 [2005]), that the plaintiff, who used an overturned bucket to access an elevator motor room, was the sole proximate cause of his accident. The Court stated that ladders were available at the job site but not in the immediate vicinity where the plaintiff and his coworker were working. The Court stated, “Rather than fetch a ladder, however, the workers climbed to the motor room on an overturned bucket . . . [and] the plaintiff exited the motor room by jumping to the roof.” Citing a cornerstone Section 240 (1) case, Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]), the Court noted that “since ladders were readily available, [the] plaintiff’s normal and logical response should have been to go get one.”

What happens when a coworker denies the plaintiff use of an available safety device and, rather than speak to the foreman, the plaintiff takes it upon himself or herself to perform his work without the safety device?

In Thomas, the plaintiff and his coworker were working as a team, hanging sheetrock at a height on a building the defendants owned and operated. On the morning of the accident, the plaintiff stood on the ground and cut pieces of sheetrock while his coworker used a provided scissor lift to raise the cut sheetrock from ground level. The coworker then accessed the elevated portions of a 20-foot wall where he would fasten the sheetrock in place.

The coworker had a different idea for the afternoon work. He asked the plaintiff to climb a ladder and hand him a piece of sheetrock, all for the sake of convenience. The coworker told the plaintiff using a ladder would be faster, likely because the coworker did not want to keep reposition the scissor lift. Based on his years of experience, the plaintiff knew that using the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. Rather than insisting that his coworker follow the proper method,or addressing the issue with his supervisor, the plaintiff attempted to use an A-frame ladder to carry with one hand an approximately 90-pound piece of sheetrock up the ladder. The ladder tipped over and the plaintiff was injured in the resulting fall.

Does the sole proximate cause defense apply?

The Majority concluded a triable issues of fact existed on whether the defendants violated Labor Law sec. 240 (1) or whether the plaintiff was the sole proximate cause of the accident. The Majority focused on whether the plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Noting that the accident concerned “unique circumstances,” the Majority concluded that, in light of the coworker’s alleged conduct, “the evidence is not conclusive about whether plaintiff chose to use the ladder over an ‘available’ scissor lift for ‘no good reason.’” The Majority reasoned that the “intransigence” of the coworker who refused the plaintiff’s request to reposition the scissor lift was a proximate cause of the accident. Thus, the Majority concluded that “when [the] plaintiff’s conduct is viewed along with the coworker’s conduct, it cannot be said as a matter of law that [the] plaintiff was the sole proximate cause of the accident."

Justice Peradotto disagreed, stating that the Majority “strain[ed] Labor Law sec. 240 (1) beyond what the legislature intended to accomplish and improperly penalizes owners and contractors for complying with the law.” Justice Peradotto cited the plaintiff’s deposition testimony; he was emphatic in his testimony that using a ladder for the work was an inappropriate method for performing the task. Justice Peradotto concluded that the “plaintiff cannot, as a matter of law, evade an adverse finding of sole proximate cause on summary judgment by attributing his conduct to the coworker.” Justice Peradotto stated that the plaintiff’s “‘normal and logical response’” to his coworker’s unsafe request was to ask the coworker again to reposition the scissor lift and wait for him to do. Perhaps a more effective response would have been for the plaintiff to raise the issue with his supervisor; Justice Peradotto mentions this option, too.

Justice Peradotto rejected the Majority’s proximate cause analysis stating, “The majority's reference to the coworker's conduct as a proximate cause of the accident is thus incorrect not only on the facts but also on the law inasmuch as the majority's sole proximate cause analysis improperly substitutes the supposed negligence of the nonparty coworker for a statutory violation by defendants.”  

The case is notable for several reasons. First, decisions in which Justice Peradotto’s dissents have found their way to the Court of Appeals on several occasions. Second, the Majority decision adds a gloss to the sole proximate cause defense – i.e., can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct? The Majority answered in the affirmative, narrowing its holding by stating the matter concerned “unique circumstances”.

Because the Majority denied the defendants’ cross-motion in part and reinstated the Labor Law sec. 240 (1) claim, the order is non-final. Thus, at this point, the defendants’ only avenue to the Court of Appeals is to move at the Fourth Department to grant leave to appeal to the Court of Appeals. The Fourth Department, like the other three Departments, is careful to grant leave to appeal sparingly. For now, though, lawyers for injured workers can make a good-faith argument that the Thomas applies outside of the Fourth Department because the other three Departments have not ruled on this precise issue.

(40 years ago this week, the out-of-leftfield hit "Abracadabra" by The Steve Miller Band reached No. 1 on the Billboard Hot 100)

Photo by Theen Moy