Landowner's duties.

Practice point: The fact that a defect may be open and obvious does not negate the duty to maintain the premises in a reasonably safe condition, but may raise a question as to plaintiff's comparative negligence.

Students should note that whether a dangerous condition exists on real property, making the landowner liable, is generally a fact question for the jury.

Clark v. AMF Bowling Ctrs., Inc., NY Slip Op 03016 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is the emergency doctrine.

Labor Law.

Practice point: On a § 240(1) claim, an injured plaintiff does not have to prove that the hoist was defective, only that he was not given proper protection.

Students should note that uncertainty as to exactly what preceded the accident does not create an issue of fact as to proximate cause.

Arnaud v. 140 Edgecomb LLC, NY Slip Op 02951 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is landowner's duties.

Vicarious liability for medical malpractice.

Practice point: Apparent or ostensible agency may serve as a predicate for the claim.

Students should note that a supervised practitioner who is not exercising independent judgment will not be liable unless the supervisor's instructions are so deviant from normal practice that there should be liability for failing to intervene.

Bellafiore v. Ricotta, NY Slip Op 02822 (2d Dept. 2011).

Here is the decision.

Monday's issue is Labor Law.

Bus stops.

Practice point: A common carrier owes a duty to stop at a place where the passengers may safely disembark and leave the area.

Students should note that the duty terminates once the passenger has safely left the bus.

Barravecchio v. NYC Transit, NY Slip Op 02821 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is vicarious liability for medical malpractice.

Breach of fiduciary duty.

Practice point: A person knowingly participates in the breach only by providing substantial assistance to the primary violator.

Students should note that a claim of aiding and abetting the breach must allege that the defendant had actual knowledge, not constructive knowledge.

 Baron v. Galasso, NY Slip Op 02820 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is bus stops.

Preliminary injunctions.

Practice point: The mere existence of an issue of fact will not result in the denial of the motion.

Students should note that the motion requires a showing of likely success on the merits; irreparable harm; and a balance of the equities in movant's favor.

Arcamone-Makinano v. Britton Prop., Inc., NY Slip Op 02818 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is breach of fiduciary duty.

Bed bugs.

Practice point: A bug infestation is not a matter uniquely within a seller's knowledge, such that it requires disclosure by the seller. 

Students should note that if the contract specifically disclaims reliance on any representations as to the physical condition of the building, there is no claim arising from the seller's alleged misrepresentations that the building did not have a bedbug problem.

85-87 Pitt St., LLC v. 85-87 Pitt St. Realty Corp., NY Slip Op 02796 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is preliminary injunctions.

Damages.

Practice point: Avoiding liquated damages requires a showing that the amount fixed is plainly or grossly disproportionate to the probable loss.

Students should note that the proper measure of the damages for trespass is the gain the trespasser has derived from its wrongful conduct.

Moskowitz v. Pavarini McGovern LLC, NY Slip Op 02787 (1st Dept. 2011).

Here is the decision.

Monday's issue is bed bugs.

Striking an answer.

Practice point: Absent a showing that defendant's failure to comply with discovery obligations was willful or in bad faith, the court cannot strike defendant's answer.

Students should note that, unless there has been a motion to compel discovery, a CPLR 3216 motion to strike is premature.

W&W Glass, LLC v. 1113 York Ave. Realty Co. LLC, NY Slip Op 02786 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is damages.

Labor Law.

Practice point: § 240(1) imposes a nondelegable duty on owners, even when the job is performed by a contractor the owner did not hire and of which it was unaware, and, therefore, which it did not supervise or control.

Students should note that defendant will not be liable under common-law negligence or § 200 if the accident was not caused by a dangerous condition of which defendant had actual or constructive notice.

Bruce v. 182 Main St. Realty Corp., NY Slip Op 02785 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is striking an answer.

Improper disposition of cremains.

Practice point: Losing, or improperly dealing with, a decedent's remains gives rise to a cause of action by the next of kin.

Students should note that merely causing doubt as to whether particular ashes are those of a plaintiff's loved one, without more, is not actionable.

The case is Bailey v. Benta's Funeral Home, Inc., NY Slip Op 02537 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law.