Category Archives: Premises Liability

Second Department Affirms Dismissal of Ice Skating Rink Case – Water Does not Make Ice More Slippery

The plaintiff, an adult male, tried ice skating for the first time on a Spring day at our client’s ice rink.  He stepped out on the ice and while still holding on to the boards took a second step and fell backwards onto his posterior breaking his ankle which required surgery.    He alleged that his skate slipped because he had stepped onto a wet spot on the ice and also that he was given the wrong size skates.

The claim that wet ice caused someone to fall is a claim we have seen over the years.  This time we decided to hire an expert to test the claim.  Our expert did coefficient testing on wet ice and dry ice before and after cleaning with a Zamboni and scientifically determined there was no significant difference between the slipperiness of wet and dry ice. Continue reading

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

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.  Continue reading

G&S Obtains Dismissal of Wrongful Death Claim on Behalf of New York Municipal Defendants – No Special Duty

Lawrence S. Wasserman and Nicholas J. Ajello recently obtained dismissal of a wrongful death claim on behalf of The City of New York, New York City Police Department, New York City Fire Department and the City of New York Department of Health and Mental Hygiene in Supreme Court, Queens County.

The case, Lois M. Rosenblatt v. The City of New York, et. al. (Index No. 5798/2013), involved plaintiff’s-decedent, a then 96-year old female who was under the care of a private home health aide.  When the decedent started choking on food fed to her by the home health aide, the aid called an ambulance and was provided instructions on what to do, but by the time the ambulance arrived, the decedent had become anoxic and fell into a persistence vegetative state before ultimately passing away. Continue reading

Ed Dondes Obtains Trial Verdict in Case Involving a Fall Down Stairs Allegedly Due to an 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.

Gordon and Silber Obtains Rare Forum Non Conveniens Dismissal in New Jersey Asbestos Case

Lawrence S. Wasserman and Russell L. Porter recently obtained a dismissal of cosmetic-talc related asbestos case in the Superior Court of New Jersey, Middlesex County. We are unaware of any other similar motions which have obtained a similar dismissal in the venue.

The case, Bell v. American International Industries, et. al., Docket Number: MID-L-6527-15AS, involved claims made by a lifelong resident of North Carolina that she was caused to develop mesothelioma after being exposed to asbestos contained in our client’s cosmetic talc product. The plaintiff claimed she used this product during her longtime employment as a hairdresser in North Carolina. Continue reading

The Court of Appeals Will Review the Second Department’s Expansion of Liability of Commercial Owners and Managing Agents for the Negligence of their Independent Contractors

In Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854 (2d Dep’t August 24, 2016), the Second Department greatly expanded liability of commercial property owners and managing agents for the negligence of their independent contractors.  It was not clear from the one page decision whether the Court was aware of the far reaching consequences of what it had done.

Recently, the Second Department granted a motion for leave to appeal.  The matter is now on its way to the Court of Appeals. Continue reading

G & S Obtains Summary Judgment for Five Distinct Defendants in a Single Motion

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. Continue reading

Gordon & Silber Obtains Dismissal On Behalf Of The New York Yankees And Major League Baseball In Case Featured In The New York Times

Plaintiff, the General Counsel and Executive Vice President of a developer of Manhattan real estate, brought suit for serious personal injuries he sustained to his face after he was struck by a foul ball at a game between the New York Yankees and the Oakland Athletics in 2011. Plaintiff contended that defendants were negligent because they did not ban the umbrellas that were obstructing his view or cancel or postpone the game due to intermittent and sometimes heavy rainfall.  Continue reading

G&S Wins Appeal Dismissing Complaint of Health Club Member who Fractured Hip in Fall

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.

Updating Tort Law For Advances in Prosthetics (Cyborgs)

This article is reprinted with permission by the New York Law Journal from an article that was published on August 28, 2015.

In 2009, the CBS news program 60 Minutes profiled the former Director of Veterans Affairs Fred Downs, who lost his left arm in Vietnam. He had relied upon a hook style prosthetic for four decades, when he strapped on a new prototype robotic arm and picked up a bottle of soda and raised it to his lips. In a subsequent episode, when recalling that moment, Downs became emotional, telling reporter Scott Pelley “the feeling is hard to describe, for the first time in 40 years, my left hand did this [grasping]…it felt so good to move my arm again”. Pelley noted Downs had said “moved my arm again”. Pelley asked if it actually felt like his arm. Downs emphatically responded “it did, it felt like my arm, it was me.[i]Continue reading