In Ferguson v. Rochester City School Dist., 2012 WL 4748715 [4th Dept Oct. 5, 2012], a student brought a personal injury action against the city school district, alleging that she slipped and fell on snow-covered and ice-covered walkway on school premises. The Supreme Court, Monroe County entered judgment on jury's verdict for the school district, and denied student's post-trial motion to set aside the verdict and for new trial. Plaintiff appealed, the Appellate Division reversed and held that jury's verdict could not have been reached on any fair interpretation of the evidence, and a new trial was ordered.

It is well known that a landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition. Once a landowner has actual or constructive notice of a dangerous condition, the landowner has a reasonable time to undertake remedial actions that are reasonable and appropriate.

Here, it was undisputed that the compacted snow and ice remaining on the walkway at the time of plaintiff's accident constituted a dangerous condition. Defendant had actual notice of the dangerous condition. The school's head custodian repeatedly testified that the walkway at issue, which was regularly used by students and faculty entering and exiting the school, was "very icy" on the morning of the accident. The accident occurred in the morning when classes began. School employees dragged snow from the walkway using the back blade of a tractor and spread salt on the walkway using a snow blower with a salt spreader attachment. This practice allowed the snow and ice to build up on the walkway over several days. Plaintiff's meteorologist testified that there was no sleet or rainfall in the area in the four days before the fall. The only significant snowfall occurred four days prior to the date of the accident, on a Saturday. Defendant undertook no snow removal efforts over that weekend. Plaintiff testified that the condition of the walkway on the Monday and Tuesday prior to her fall was "pretty much the same" as on the Wednesday when the accident occurred.

The walkway was still covered in ice and snow and thus was slippery at the time of plaintiff's fall. Plaintiff described the ice as hard, thick and rough. The Appellate Division concluded that the trial evidence established that defendant's efforts to improve the dangerous condition were not reasonable and appropriate under the circumstances. Therefore, defendant was negligent. Defendant did not argue there was a storm in progress, nor that defendant lacked enough time to remedy the dangerous condition of the walkway before plaintiff fell.

In Carlin v Patel, 951 NYS2d 807 [4th Dept 2012], plaintiffs brought a medical malpractice action and the defendant physician Chohan asserted a cross claim for contribution against co-defendants Patel and Sarwar. The cross-claim was converted into a third-party action after main action was dismissed against Patel and Sarwar. The parties to the third-party action agreed to sever that action from the main action and to conduct the trial therein at a later date. At the conclusion of the trial in the main action, the jury returned a verdict finding Chohan liable to plaintiffs and awarding plaintiffs the sum of $2.4 million in damages. Before entry of the judgment, Chohan settled with plaintiffs. Then, Patel and Sarwar moved to dismiss the third-party action as Chohan was barred by General Obligations Law § 15-108(c) from seeking contribution. The trial court denied Patel and Sarwar's motion, who then appealed. The Appellate Division reversed.

As a general rule, pursuant to § 15-108, a tortfeasor who settles with an injured party may not seek contribution from any other tortfeasor or potential tortfeasor, although that rule does not apply to post-judgment settlements. General Obligations Law § 15-108(d)(3) provides, in relevant part, that "[a] release ... between a plaintiff or claimant and a person who is liable or claimed to be liable in tort shall be deemed a release ... for the purposes of this section only if ... such release ... is provided prior to entry of judgment." A tortfeasor who settles with an injured party after the entry of a judgment retains the right to seek contribution from other tortfeasors. Here, Chohan settled with plaintiffs prior to the entry of the judgment against him thereby forfeiting his right to seek contribution from Patel and Sarwar.

In Zolfaghari v Hughes Network Sys., LLC, [4th Dept Oct. 5, 2012] the plaintiff commenced a Labor Law and common-law negligence action seeking damages for injuries sustained after falling off a ladder while removing a satellite dish attached to the outside wall of a gas station. Removal of satellite dish was occurring because defendant Setauket was changing from an Exxon station to a Gulf station, and the satellite dish was owned by defendant Exxon.

Plaintiff's motion for partial summary judgment on liability under Labor Law §§ 240(1) and 241(6) was denied by the trial court.

The Appellate Division held that for plaintiff to obtain the protections afforded by Labor Law § 240(1), a worker must be engaged in "altering" a building or structure, such as making a significant physical change to the configuration or composition of the building or structure. Here, plaintiff's task involved unplugging a cord, loosening a small number of bolts, cutting a wire, and lifting the dish apparatus from a bracket and face plate that remained attached to the building. None of the work required any physical contact with the building itself, use of power tools, drilling of holes, or feeding of wire through conduits. The Appellate Division held there was no change to the gas station building and this work was not demolition.

In Mendola v Doubrava, 951 NYS2d 451 [4th Dept 2012], passenger plaintiff was seeking damages for injuries sustained when her vehicle was struck by a vehicle owned by defendant Siglin and operated by defendant Doubrava. The trial court granted defendants' motion dismissing the complaint as plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102(d). The Appellate Division affirmed.

The Appellate Division held that defendants' neurologist examined the plaintiff and plaintiff's medical records, concluding that the only objective medical findings with respect to any alleged injury related to a preexisting degenerative condition of the spine. Plaintiff then had the burden to come forward with evidence addressing defendants' claimed lack of causation. Here, plaintiff failed to meet that burden by submitting the reports of three examining physicians, none of which concluded that plaintiff's herniated discs or disc protrusions were caused by the subject accident. One of plaintiff's treating neurologists even concluded that plaintiff had pre-existing degenerative disc disease of the cervical spine. Further, the Appellate Division held there is nothing speculative or otherwise inappropriate relating to the interpretation and use of the MRI reports by defendants' expert in formulating his opinions.

In Stephenson v City of New York, 2012 NY Slip Op 06992 [Ct App Oct. 18, 2012], plaintiff Stephenson was injured in an assault by another student, McDonald. The incident occurred two blocks from the boys' school prior to school hours. Stephenson had been involved in a prior altercation with McDonald just two days before between classes at school. Both boys received in-school suspensions for the first incident, and the school made sure the boys' dismissal times were not the same so that no further altercations would occur.

Plaintiffs brought this action against defendants for negligence alleging that school officials failed to ensure Stephenson's safety from the second assault. Defendants moved for summary judgment, arguing that since the second incident occurred before regular school hours and off school property, defendants owed no duty to plaintiffs and, therefore are not liable. The Supreme Court denied the motion. The Appellate Division, First Dept. reversed on a 3-2 decision, and dismissed the complaint. The Court of Appeals affirmed.

It is well-settled that a school owes a common-law duty to adequately supervise its students. This duty stems from the fact of its physical custody of them. The nature of the duty is that the school must exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances. Generally, the duty of care does not extend beyond school premises.

Here, the plaintiff was adequately supervised at school, and the school addressed the first altercation that occurred on school property between parties by punishing the students. It was the second altercation which resulted in plaintiff's injuries. This incident occurred away from the school and before school hours where there was no teacher supervision.

Also the Court of Appeals held that the school could not be held liable for a failure to notify plaintiff's mother of generalized threats made at school.

Prepared by Christopher E. Poole