In David Leather v. Zaepfel Development Company, Inc., 121 A.D.3d 1500 (4th Dept. 2014) the plaintiff commenced this action seeking damages for injuries sustained when he fell from a stepladder while climbing out of a corrosion chamber owned by his employer. A corrosion chamber "simulates the long term effects of weather on metal products by exposing them to a saline solution." The plaintiff noticed standing water in the base of the chamber due to a clogged drain. The plaintiff finally freed the clog by spraying water into the drain. Noticing that the chamber still required cleaning, the plaintiff descended into the chamber to clean the floor. Upon exiting the chamber, a ladder he had been using became unstable and the plaintiff fell to the ground.

The plaintiff argued that the work done to unclog the pipe constituted "repair work", a protected activity under Labor Law §240(1). Labor Law §240(1) uses a strict liability standard instead of a negligence standard. Here, there was no evidence that the chamber needed repair or that it became inoperable or that it was malfunctioning at the time the plaintiff was cleaning it. Therefore, the Court held that the plaintiff was involved in "routine maintenance in a non-construction, non-renovative context" and should not be afforded the special protection of Labor Law §240(1). Therefore, the Fourth Department affirmed the order granting defendant's motion for summary judgment.

In Wirth v. Liberty Mutual Insurance Company, 122 A.D.3d 1364, (4th Dept. 2014), the plaintiffs commenced this action seeking from their insurer, among other elements of damage, damage to their pickup truck and trailer. The loss occurred when their son was killed in a single vehicle accident while driving their pickup truck and livestock trailer. After the accident, the plaintiffs reported the vehicles stolen and operated by their son without their permission. Neither the driving vehicle nor the livestock trailer had collision coverage under the plaintiffs' policy and both were determined total losses.

Despite their lack of collision coverage, the plaintiffs looked to recover under the policy's terms for "theft or larceny," since their son had stolen both vehicles. The policy, however, did not define "theft" or "larceny."

Defendant insurer argued that "theft" and "larceny" should be defined as "larceny" is defined within Penal Law Section 155.05 (1). "Larceny" as so defined would require the plaintiffs to prove their son's criminal intent at the time of the accident.

The Court held that because the policy also used the term "stolen" when referring to the policyholder's duty to report the loss to the insurance company, and because as a matter of contractual construction all words shall be given significance, the Court would not apply the Penal Law definition of "larceny" in construing the contractual rights of the insured. Therefore, the Fourth Department applied the lay definition of theft, larceny and stolen to interpret coverage under "theft and larceny" and found that the insureds were entitled to recovery of their property damage.

In Fernandez v. Festival Fun Parks LLC, 122 A.D.3d 794 (2nd Dept. 2014) the plaintiff sought damages after she slipped and fell on the wet floor in the women's lavatories at Splish Splash water park. The defendant brought a motion for summary judgment seeking dismissal of the complaint which was denied and subsequently affirmed.

When a defendant moves for summary judgment in a slip and fall action, the defendant has the burden to establish a prima face showing that (1) they did not create the dangerous condition and (2) that they did not have actual or constructive notice of the condition which would be sufficient to allow them to discover and remedy the situation.

Here, the defendant offered their general inspection policy for maintaining the lavatories and additionally, pointed out the deficiencies in the plaintiff's case. The Court held that offering evidence of general inspection practices is insufficient to establish lack of constructive notice of the condition. A defendant is required to show exactly when the site was last cleaned or inspected relative to the plaintiff's accident. Furthermore, merely pointing out the gaps in the plaintiff's case is insufficient to establish a prima facie showing for summary judgment.

The Appellate Court held that here, the lower court properly denied the defendant's motion of summary judgment because the defendant failed to submit evidence regarding specific inspection times and cleaning procedures that were utilized relative to the time of the plaintiff's fall.

In Ritchie v. Churchville-Chili Central School District, 122 A.D.3d 1265, (4th Dept. 2014), the plaintiff brought this action on behalf of her infant son to recover damages for injuries her son sustained after being struck by a motor vehicle at a team fundraiser.

Shortly before the accident, the plaintiff and her son arrived at a school fundraiser for the school lacrosse team. The school lacrosse fundraiser had an area for parking which the student athletes were located and an area for food service located across the street from the parking area. As the plaintiff arrived with her son, she dropped him off near the parking area, instructing him to "stay there" while she went across the street to the food service area. While the plaintiff's son was waiting, one of his fellow teammates instructed him to check in with the coach to confirm his attendance. The coach was located in the food service area. As the plaintiff's son was crossing the street, he was struck by a vehicle.

Plaintiff argued that the school had a duty to her son since he was in their "care and custody" at the time of the accident. The Court held that the plaintiff had specifically instructed her son to "stay there" and although he disobeyed her instruction, he was still in her care. She had not relinquished control of her son and the defendant had not "gained physical custody or control of him that is prerequisite to imposing a legal duty." Therefore, the Court affirmed the order granting summary judgment to the defendant.

Prepared by Rebecca R. Josefiak