Practice point: Infant plaintiff alleged damages for a fall on a sidewalk fronting property owned by defendant, who then brought a third-party action against the Village for contribution and indemnification. The Village established its prima facie entitlement to judgment as a
matter of law by demonstrating that it did not receive prior written
notice, as required by Village code, of the snow and ice on the sidewalk. However, defendant raised a triable issue of fact as to
whether the snow and ice condition was created by the Village's snow removal efforts.
The fact that the ice and snow was open and obvious does not
preclude a finding of liability as against defendant, but, instead,
presents a triable issue of fact regarding the comparative fault of plaintiff, defendant, and the Village. In addition, although plaintiff testified at his
deposition that he had problems with his balance, and usually wore inner
soles in his shoes to help him maintain his balance, the Village failed
to establish, prima facie, that plaintiff's failure to wear
inner soles in his shoes was the sole proximate cause of the accident.
The Appellate Division affirmed the denial of the Village's summary judgment motion.
Student note: Where, as here, a municipality has enacted a prior written notice
law, it may not be subjected to liability for injuries caused by a
defect or a dangerous condition which comes within the ambit of the law
unless it has received written notice of the alleged defect or dangerous
condition prior to the occurrence of the subject accident, or an
exception to the written notice requirement. Exceptions include the municipality's having negligently created the defect or hazard.
Case: Lopez-Calderone v. Lang-Viscogliosi, NY Slip Op 03505 (2d Dept. 2015)
Here is the decision.
Monday's issue: A livery vehicle driver's duty of care.
