Dismissal Denied in New York Personal Injury Action

Earlier this year, the Supreme Court Appellate Division, Third Department affirmed a lower court’s denial of summary judgment for the defendant in a personal injury action. The action involved a developmentally disabled individual in the county of Otsego. The defendant moved for summary judgment claiming that it did not owe the plaintiff a duty at the time of the accident. The court did not agree.

highway.jpgThe plaintiff in this case was “an adult with mild mental retardation.” She received various services from the defendant facility, which catered to special needs individuals such as the plaintiff. On the day of the accident, a worker for the defendant facility allowed the plaintiff to ride a bus, alone, back to her house. When the plaintiff exited the bus she attempted to cross a busy thoroughfare, and was struck by an oncoming vehicle. She sued for personal injuries stemming from the accident.

The defense made several claims in support of its motion for summary judgment. First, it claimed that at the time of the accident, the defendant no longer owed the plaintiff a duty of care because she was taking the public bus, by herself, and she had used public transportation on her own prior to the event in question. The Court, however, noted that while the plaintiff had successfully taken public transportation previously, those events took place within the city limits. The accident occurred outside the city in a rural area. Additionally, the defendant had stated in a record dated approximately a year before the incident that the plaintiff would need additional training before being allowed to cross a “major road” on her own–training that the defendant evidently did not provide. Furthermore, the court looked to the defendant’s own records, which show that the facility extended its care for the plaintiff beyond simply her time spent within the program. It aided her with activities of daily living as well, training her in safety-related matters. Finally, with respect to the defendant’s defenses, the court ruled that although the plaintiff had taken the bus unsupervised in the past, those instances were at the direction of the plaintiff’s mother. Here, the defendant contravened a request from the mother without notifying her.

The plaintiff raised a triable issue of fact in relation to the defendant’s deviation from the accepted standard of care. This coupled with the defendant’s failure to establish its right to judgment as a matter of law, caused the Third Department to uphold the Supreme Court’s denial of summary judgment.

Warley v Grampp, 2013 NY Slip Op 04080 [107 AD3d 1111]

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