PREMISES LIABILITY – REPRESENTATIVE CASES

 

G&S Obtains Dismissal of Skating Rink Case Based on Assumption of the Risk – Man Spinning Woman on Ice Against her Will was not Reckless Conduct so as to Fall Outside Assumption of Risk Doctrine – 2017

Plaintiff and her friend were ice skating when she observed a man skating in a dangerous manner skating the wrong direction and pushing other people on the rink. They continued to skate when this individual stopped the conduct. When after a half hour on the ice they saw this individual swinging a woman around him on the ice against her will they decided to leave the ice. As plaintiff was skating by the couple their hands released sending the male “flying” into her knocking her down and causing her to break her wrist.

We argued that that being knocked to the ice by another skater is a risk that ice skaters assume when they agree to participate in the sport of ice skating. Plaintiff was an experienced skater and continued to skate despite being aware the individual who knocked her down had skated inappropriately in a manner she considered dangerous. We argued that the exception to this doctrine, where the person is injured when struck by someone skating “recklessly” did not apply, because the conduct describe was not reckless and occurred too suddenly for the rink to have been able to prevent. We reviewed for the court historic examples of reckless conduct and argued that a man and woman holding hands and skating in circles did not approach the standard for recklessness. We also argued that the accident occurred so suddenly and precipitously that it could not have been prevented or anticipated by the rink.

We also argued that to the extent the plaintiff claims her accident was caused by “scratches” in the ice, such scratches were ordinary risks she assumed and neither plaintiff nor her friend could articulate how the scratches contributed to the accident.

We also argued that the landlord should be dismissed since it had no obligation to maintain the surface of the ice nor did it play a role with regard to rink security or regulating the conduct of the skaters.

The decision by Judge Genine D. Edwards dismissed the claims against all defendants on the grounds that plaintiff assumed the risk of being knocked down and on the alternative grounds that the event took place too quickly to hold defendants liable.

 

G&S Gordon & Silber Obtain Trial Verdict in Fall Down Stairs Allegedly Due to Improper Handrail – 2017

Plaintiff was visiting our client when she fell down an interior stairway. Plaintiff contended that the stairway that had been replaced five years earlier by an unlicensed contractor, caused her accident because the contractor negligently failed to comply with provisions of the code that require handrails to have at least 1 ½ inches of finger space. The plaintiff asserted that because part of the molding ran up against the handrail, there was an absence of space to grab for several inches. The plaintiff maintained that as a result, she was caused to fall. Plaintiff put on the stand the expert engineer Nicholas Belizzi, PE. We argued that the stairs were safe and that there had been no problems with the stairs or handrail in the 5 years since being installed. We also contended that the plaintiff had regularly visited the premises, and had been on the stairs many times and argued that the condition of handrail would not have caused a fall. Upon submission to the jury, it returned a defense verdict on behalf of our client.

 

G&S OBTAINS SUMMARY JUDGMENT FOR FIVE DISTINCT DEFENDANTS IN A SINGLE MOTION – 2016

The plaintiff in this action worked for a coffee distribution company when with knowledge of a broken light, exited from work through the loading dock and tripped over the bottom of a concrete ramp that had been poured to elevate trucks to the surface of the dock, fracturing his patella which required surgery. He contended he fell due to a nonworking light and an improperly designed ramp which failed have handrails and yellow visibility paint.

Although he received Workers' Compensation benefits, he sued his employer and his employer’s parent company as well as a defunct affiliated company, as well as his employer’s landlord and a company affiliated with the landlord that shared the building. G&S took over the defense of all five defendants. Only the contractor that built the ramp was not being defended by G&S.

G&S moved for summary judgment on behalf of plaintiff’s employer based on the exclusivity provisions of the WCL as well as on behalf of its parent based on affidavits and testimony establishing that the parent controlled the front and back office operations of the employer, its wholly owned subsidiary. G&S moved on behalf of the parents affiliated company based on evidence that it was no longer in existence on the date of the plaintiff’s accident and never had any relationship to the property. G&S moved on behalf of the landlord on the grounds that it was merely an out of possession landlord with no contractual duty of repair other than with respect to structural issues and no common law duty other than with respect to structural building code violations. A main point of contention between our expert architect and the plaintiff expert engineer was whether the ramp was structural and whether it violated the building code. We also moved on behalf of the defendant affiliated with the landlord on the grounds that it had no ownership interest or duty of care with respect to the premises. Finally, we also argued that the plaintiff’s claims should be dismissed since the cause of his accident was his admitted failure to look down at the ramp after descending the stairs and as a manager in charge of the safety, including the subject light and ramp, he knew of the conditions in the loading dock, but nevertheless proceeded anyway, assuming the risk of his injury.

In an extraordinary 20 page decision Judge Jeffrey S. Brown, of the Nassau County Supreme Court dismissed all five insured defendants with a clean sweep of every argument, leaving our co-defendant left in the case by itself. The court even agreed that plaintiff could not establish the accident was proximately caused by the alleged defective ramp, lighting and absence of handrails because of his testimony that he knew the light was out and knew the ramp was there, was not looking down and had an alternative exit out of the building.

The decision threaded the needle in obtaining a dismissal for the parent corporation on the basis of the WC bar without making the statement or concluding that the parent and subsidiary were alter egos, thereby preserving the corporate distinction between the entities. We were also successful with establishing with expert testimony that the concrete poured ramp was not structural and thus not something that the out of possession landlord had notice of, and extracted the entities not affiliated with the premises with appropriate affidavits.

 

G&S OBTAINS SUMMARY JUDGMENT PREMISED ON THE ASSUMPTION OF RISK DOCTRINE FOR LONG ISLAND HEALTH CLUB

The plaintiff in this action alleged that she fell backwards and fractured both of her wrists while performing plyometric box jumping exercises at a Life Clubs, Inc., a health club facility in Long Island. This exercise involves repeatedly jumping onto and off of a raised platform. The plaintiff claimed that the rubber tiled flooring in the area where she was doing this exercise was uneven and caused the plyometric box to wobble when she landed on it. She alleged that this wobbling caused her to lose her balance and fall backwards.

In moving for summary judgment, we submitted substantial evidence that the plaintiff assumed the risk of sustaining her injuries. This included the plaintiff’s deposition testimony that she exercised at this gym several times per week, and had done plyometric jumping in the exact area where she fell on several prior occasions, both with and without a personal trainer. She also testified that she felt the box wobble on prior occasions and immediately before her fall. She did not use a spotter or any protective mats. The Supreme Court, Nassau County held that this evidence established that the plaintiff assumed the risk of sustaining her injuries.

We also demonstrated that the rubber-tiled floor where she fell was reasonably safe for the performance of plyometric exercises by submitting an expert affidavit of a licensed professional engineer. Although the plaintiff proffered an affidavit of a sports and recreation expert, we convinced the court that the expert’s opinions were speculative and conclusory.

 

G&S Wins Appeal Dismissing Complaint of Health Club Member who Fractured Hip in Fall – Second Department, Appellate Division - 2015

Our client health club was sued when a member fractured her hip falling in a whirlpool room allegedly due to an excessively wet floor Plaintiff underwent two surgeries as a result. We moved for summary judgment on the theory the water condition was incidental to the whirlpool. We also argued that plaintiff’s claim the water was excessive should have been disregarded by the court since she did not observe the condition before she fell. We similarly argued that the affidavits of plaintiff’s witnesses should also have been disregarded since they did not witness the condition contemporaneously with the accident. After the court denied our motion, G&S appealed to the Second Department which reversed, agreeing that the water which caused plaintiff’s accident was incidental to the use of the whirlpool room and therefore not actionable. The Court also agreed with the defendant that the affidavits of the plaintiffs’ witnesses should have been disregarded.

 

G&S Obtains Jury Verdict against a 92 Year old Woman in Favor of Client Landlord in Trip and Fall Accident in Supreme Court, Queens County

Plaintiff, a then 87 year old woman, fell on July 2, 2010 in front of the assured’s building allegedly due to a raised handle on cellar doors which our client had utilized earlier that day resulting in facial injuries, including a fractured orbit, and a fractured right elbow. She argued that our client owned the building and had opened the cellar door for a tenant on the day of the accident despite the door not having been used in the 5 years prior to the accident. Plaintiff testified that after her accident, our client’s daughter pushed the door handle down in an attempt to hide evidence of fault. On cross examination however, we established that she had testified that the handle was still upright when she was removed by ambulance. We also established that she had never seen the handle in an upright position prior to her accident despite her frequent passing of the location. Further, we established that upon leaving the hair salon at 11:30 a.m. to have lunch with her friends, the handle was not in the up position, a mere ½ hour prior to her accident at 12:00 noon.

Although plaintiff called a professional engineer, we successfully moved to preclude him from testifying generally about our client’s failure to comply with the New York City Administrative Code. The Court only allowed him to testify regarding his inspection of the door handle. He claimed the handle was unsafe in the upright position and because it was rusted it could get stuck upright. On cross-examination, we established he did not measure the diameter of the holes versus the diameter of the handle undermining his claim that gravity would not cause the handle to return to being flush with the door.

Our client testified that the door was opened prior to the accident there was no problem with the functioning of the handle. He further testified that when he closed the door that morning he was sure the handle was flush with the cellar door surface. He inspected the sidewalk twice a day for debris and never received complaints about the door handle and denied awareness it got stuck in an upright position although he did acknowledge it can be manipulated to remain in the upright position.

Our professional engineer testified that unlike plaintiff’s expert, he measured the diameter of the holes and the handle which allowed the handle to become flush with the cellar door surface merely with gravity. He testified he tested it and it was working properly as designed at the time of his inspection and that the rusting was normal considering the cellar door was exposed to the elements.

Finally, we called the tenant who testified that he had closed the cellar door in front of our client who supervised the event. While the tenant acknowledged on cross that our client told him he needed to be careful with the handle because it could get stuck, he maintained that he left the handle flush. He also testified that when he responded to the scene of the accident the handle was down.

In closing, plaintiff’s counsel argued it could not be a coincidence that the cellar door was opened the same day as the accident and that it was our client’s responsibility to make sure the handle was down. We in turn argued that the tenant testified the handle was flush before and after the accident and that plaintiff failed to call her friends who were with her that day to testify on her behalf. We also highlighted that although plaintiff claimed our client’s daughter pushed the handle down, she also testified the handle was up when she was removed by the ambulance.

The jury returned a verdict the jury found our client not negligent and assigned 100 percent of the fault to the plaintiff herself.

 

G&S Obtains Summary Judgment Dismissing Various Toxic Exposure Claims as Time Barred - 2014

G&S recently obtained summary judgment dismissing various claims as time barred on behalf of several World Trade Center defendants. The plaintiff claimed he suffered various injuries due to his work cleaning the interior of buildings after the World Trade Center attacks.

We argued that all of plaintiff’s 14 separate claims of injury were subject to the three year statute of limitation [CPLR 214-c(2)] which runs from the date of discovery of the injury or from the date the plaintiff should have discovered the injury, whichever was earlier.Plaintiff claimed that as a result of his post 9/11 work he developed a number of symptoms including coughing, chest pressure, headaches, throat irritation, nasal congestion, heartburn, shortness of breath, trouble sleeping, and psychological problems, among others. We argued that all of his injures were linked to at least one of these symptoms prior to December 17, 2004, three years prior to the filing of his summons and complaint.

The motion was complex given that plaintiff’s purported injuries were often related and overlapping which raised the question whether the discovery of a symptom caused the statute of limitations to begin running if that symptom could be related to more than one claimed illness? Also at issue was whether early symptoms were too “isolated” or “inconsequential” to have triggered the statute to run. In addition, there was the issue of whether any of plaintiff’s injuries manifested and/or morphed into separate more serious injuries that could trigger a separate statute of limitations. Finally, plaintiff made the novel argument that the early diagnosis of certain conditions should not have triggered the statute of limitations because these diagnoses were premature and or inaccurate.

In the absence of significant opposition, the Court granted the motion dismissing plaintiff’s claims for Asthma, Rhinitis, GERD, Laryngitis, Depression, Anxiety and PTSD on the basis of his medical records and his testimonial admissions.

With respect to his claims of COPD, RADS and Sleep Apnea, plaintiff argued that the initial diagnoses should not have triggered the statute because the diagnoses were not accurate. The Court however, adopted our argument that the statute is not triggered due to a diagnosis, but rather from the time the plaintiff had sufficient notice of his injury. We argued that subjectively, the plaintiff clearly had sufficient notice of his injury based on a diagnosis, even if it later turned out the diagnosis was erroneous.

With respect to plaintiff’s claims of Lung Nodules, Sinusitis, Interstitial Lung Disease and Bronchitis, the Court found there was insufficient expert proof in the record to determine whether the symptoms that plaintiff experienced could be related sufficiently to the specific injuries claimed. Since expert discovery is now commencing, the Court denied the motion without prejudice to renew at the close of expert discovery.

 

G&S Obtains Dismissal of Claim Against YMCA in Locker Room Slip and Fall Case - 2014

The Appellate Division, First Department affirmed the Order of the Supreme Court, Bronx County which granted summary judgment to the YMCA in a locker room slip and fall accident. The female plaintiff, who had been in the women's locker room, with her daughter, for fifteen minutes, without noticing any water on the locker room floor, allegedly slipped and fell on a puddle of water in close proximity to the bench where she had changed into her bathing suit prior to an aqua aerobics class in the YMC'’s indoor pool.

Although the YMCA's female porter, who was responsible for maintaining and inspecting the locker room, was absent from work that day, the YMCA’s male porter ensured that the female staff members continuously checked the locker room floor for water during her absence. The Appellate Division held that the YMCA met its burden of demonstrating lack of notice of the alleged wet condition of the locker room floor by submitting evidence that it followed its routine maintenance and inspection procedures, and that the condition was not observed either by the YMCA staff when they inspected the area, or by the plaintiff or her daughter. Further, the Appellate Division held that a prior complaint made by the daughter demonstrated, at most, that the YMCA had a general awareness of a wet condition, which is insufficient to raise a triable issue of fact as to notice. Lastly, the Appellate Division rejected the plaintiff's expert affidavit which it deemed conclusory and failed to cite to any accepted industry practice, standard, code or regulation that was violated by the YMCA.

 

G & S OBTAINS SUMMARY JUDGMENT ON BEHALF OF THE NEW YORK YANKEES PARTNERSHIP – 2014

The plaintiff alleged that she lacerated the top of her foot after it came into contact with an allegedly protruding leg of a metal police barricade inside the old Yankee Stadium.  The plaintiff was walking with her husband through the interior concourse of Yankee Stadium to get to Monument Park in left field.  Her right foot came in contact with the barricade after she walked past about twenty of these that were lined up flush against the wall that separates the bowl seating area from the interior walkway.  The plaintiff claimed that the barricade’s leg was sticking up and out into the concourse.

In moving for summary judgment, the New York Yankees Partnership submitted substantial evidence showing that the New York Yankees Partnership did not own the allegedly dangerous barricade; the barricade was owned by the NYPD and the NYPD used it for crowd control during Yankee games in the City owned stadium.

The defense further showed that the New York Yankees Partnership lacked notice of any unsafe barricades in the concourse by providing testimony from its Stadium Superintendent that the New York Yankees Partnership conducted walk-through inspections of the entire stadium before every game and would have removed such barricade if it was found to be defective or unsafe.

The New York Yankees Partnership also submitted evidence that the plaintiff had no trouble seeing the long row of large metal barricades along the concourse wall to her right.  Additionally, the New York Yankees Partnership showed that no one in front of her tripped over or warned her of any raised or protruding barricade legs, and that the presence of such barricade was readily observable by employing the reasonable use of one's senses.
The Court agreed with the defense and summarily dismissed the plaintiff’s complaint.

 

G & S Obtains Summary Judgment on Behalf of the New York Yankees Partnership – 2013

The plaintiff alleged that he sustained meniscal tears in his knee resulting from a trip and fall accident on a public thoroughfare near the old Yankee Stadium while the demolition of the old Yankee Stadium and the renovation of the surrounding area were underway.

In obtaining summary judgment, substantial evidence was tendered by the defense, including an affidavit from the New York Yankee Partnership's Chief Operating Officer and the lease agreement for the old Yankee Stadium, to the effect that the New York Yankee Partnership had no maintenance responsibilities for the area where the plaintiff's accident allegedly occurred and did not create the condition that allegedly caused the plaintiff to fall.

The court agreed with the defense and summarily dismissed the plaintiff’s complaint.

 

G&S Obtains Directed Verdict at Trial in Favor of Our Client Municipal Authority – 2013

Plaintiff claimed to have suffered a fractured orbit and shoulder due to a fall on a stairway due to discarded newspaper. At trial we contested the case on the basis of notice. Plaintiff’s counsel argued that she had been commuting through the terminal for 4 years, and over the last 6 months she claimed to have always observed discarded newspapers and lottery tickets on the stairs in question from a newsstand and lottery stand in close proximity. Plaintiff argued that the newspaper was a recurring condition. She never complained about it because she did not speak English.

On the stand she admitted on cross examination that she had no idea how long the newspaper had been on the stairs and that the papers she had seen on prior occasions were not the same as existed on the day of her accident. The plaintiff called the police officer who responded to the accident and a coworker eyewitness who corroborated plaintiff's testimony. Plaintiff then rested.

Prior to putting in the defense case, we moved to dismiss for failure to make out a prima facie case of negligence. We argued that plaintiff failed to establish that the newspaper was a recurrent condition and thus had not established negligence. The court granted the motion finding that plaintiff’s general assertion she had seen paper on the stairs in the past did not constitute a specific recurring condition that defendant had notice of.

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