Demarest v. Vill. of Greenwich

206 N.Y.S.3d 763

224 A.D.3d 1196

Rachael DEMAREST, Individually and as Administrator of the Estate of Joshua James Demarest, Deceased, Respondent,

v.VILLAGE OF GREENWICH et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

Calendar bate: January 8, 2024

Decided and Entered: February 29, 2024

FitzGerald Morris Baker Firth PC, Glens Falls (Joshua D. Lindy of counsel), for appellants.

Cullen and Dykman LLP, Albany (Christopher E. Buckey of counsel), for respondent.

Before: Garry, P.J., Pritzker, Lynch, Fisher and Powers, JJ.

MEMORANDUM AND ORDER

Fisher, J.

Appeal from an order of the Supreme Court (Glen T. Bruening, J.), entered August 12, 2022 in Washington County, which partially denied certain defendants’ motion for summary judgment dismissing the complaint against them.

In December 2016, plaintiff’s infant child (hereinafter decedent) and a neighbor’s child (hereinafter the surviving child; hereinafter collectively referred to as the children), seventh graders at the time, were playing on a snowbank in an otherwise empty lot owned by defendant Robert M. Sipperly located in the Village of Greenwich, Washington County (hereinafter the lot).¹ The snowbank was created by employees of the Department of Public Works (hereinafter the DPW) of defendant Village of Greenwich, which had an oral agreement with Sipperly that they could store excess snow on the lot. At approximately 3:15 p.m. on December 13, 2016, the children were playing on the backside of the snowbank in forts when a DPW employee in a front-end loader dumped at least two loads of show on top of the snowbank and, consequently, on the children. After being trapped under the weight of the snow for approximately four hours, the children were discovered, dug out and transferred to an area hospital where decedent passed away as the result of his injuries.

Plaintiff, individually and as administrator of decedent’s estate, served the Village with a notice of claim.² She then commenced this action asserting several causes of action for negligence and premises liability, seeking compensatory and punitive damages. Following joinder of issue by the Village and the completion of disclosure,³ the Village moved for summary judgment dismissing the complaint on sev- eral grounds, including that it did not owe a duty to decedent and that it was not a substantial factor in causing decedentis injuries leading to his death. Plaintiff opposed the motion and Supreme Court, finding that the Village had failed to establish its prima facie entitlement to summary judgment, denied the Village’s motion to that extent.⁴ The Village appeals.

[1–4] We affirm. Since "a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (Mizenko v. Intertech Digital Entertainment, Inc., 204 A.D.3d 1151, 1152, 166 N.Y.S.3d 366 [3d Dept. 2022] [internal quotation marks and citations omitted]). "Although a contractual obligation generally does not give rise to tort liability in favor of a noncontracting third party, one exception to this principle applies, and creates a duty of care, where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm" (McEleney v. Riverview Assets, LLC, 201 A.D.3d 1159, 1162, 161 N.Y.S.3d 491 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]; see Cavosie v, Hussain, 215 A.D.3d 1080, 1082, 187 N.Y.S.3d 837 [3d Dept. 2023]). Consistent with that duty, the degree of reasonable care to be exercised "includes consideration of the known propensities of children to roam, climb, and play, often in ways that imperil their safety" (Sarbak v. Sementilli, 51 A.D.3d 1001, 1002, 858 N.Y.S.2d 763 [2d Dept. 2008]; see Charles v. Village of Mohawk, 128 A,D.3d 1477, 1478, 8 N.Y.S.3d 537 [4th Dept. 2015]; Dunbar v. NMM Glens Falls Assoc., 263 A.D.2d 865, 865, 693 N.Y.S.2d 746 [3d Dept. 1999]; see also Leone v. City of Utica, 66 A.D.2d 463, 466, 414 N.Y.S.2d 412 [4th Dept. 1979], affd 49 N.Y.2d 811, 426 N.Y.S.2d 980, 403 N.E.2d 964 [1980]). The scope of this "duty is measured in terms of foreseeability, which may only be determined as a matter of law where a single inference can be drawn from the undisputed facts" (Prusky v. McCarty, 126 A.D.3d 1171, 1171, 5 N.Y.S.3d 594 [3d Dept. 2015] [internal quotation marks and citation omitted]). When specifically examined in the context of a premises liability matter involving children, "[w]hat accidents are reasonably foreseeable, and what preventative measures should reasonably be taken, are ordinarily questions of fact" (Sarbak v. Sementilli, 51 A.D.3d at 1002, 858 N.Y.S.2d 763).

[5] Here, the deposition testimony from the superintendent of the DPW and Sipperly confirmed the existence of an agreement allowing the DPW to store excess snow on the lot. This practice had been ongoing for a number of years without Sipperly having to oversee or direct how the DPW employees carried out their work. Therefore, the inquiry shifted to whether the Village created an unreasonable risk of harm in the performance of its contractual obligations (see McEleney v. Riverview Assets, LLC, 201 A.D.3d at 1163, 161 N.Y.S.3d 491; Grady v. Hoffman, 63 A.D.3d 1266, 1267, 879 N.Y.S.2d 837 [3d Dept. 2009]). In this regard, the Village submitted the transcripts of the deposition testimony of several DPW employees who described the general safety training that they received for the operation of heavy equipment, including creating safety zones, checking the surroundings and excluding the public from work zones. The testimony was that the majority of the DPW employees generally followed these principles. The superintendent also provided testimony regarding a "no trespassing" sign policy, aimed at preventing children from roaming and climbing on snowbanks in the lot. Other DPW employees also testified inconsistently regarding whether the sign policy was discretionary or mandatory, and who made such decision to deploy the signs. Indeed, at least one DPW employee testified that he had previously observed children playing on the snowbanks in the lot. In considering this testimony, the Village’s expert engineer, Lawrence Levine, opined that operators of heavy equipment were not required to get out of their vehicles to check for the public in work zones – particularly in the winter months for snow removal where slippery conditions could present a danger for such operators. He further stated that there were no indications of children at the lot on the day of the accident, nor would they have been reasonably expected to be present given the remote location of the lot and the purported lack of a history of any children there. Relating to this point, it is undisputed in the record that the children were intentionally hiding from the DPW employees in forts dug into the back and top of the snowbank as part of a game to evade detection.

However, viewing the facts in the light most favorable to the nonmoving party, the record also demonstrates that on the day of the accident the DPW employees did not adhere to their safety training, establish a safe work zone or use the "no trespassing" signs on the snowbank. None of the DPW workers testified to inspecting the snowbank or the lot on the day of the accident. Despite the children leaving a rainbow sled there overnight, and the surviving child having testified that the trucks were "pretty tall" and a truck operator "probably could have seen the sled in [decedent’s] fort," none of the DPW employees observed the sled from 7:00 a.m. when the first employee arrived at the lot to the time of the accident – a period of time over eight hours long and, after approximately 20 loads of snow were delivered to the lot. This includes the DPW operator of the front-end loader, who testified that he did not get out of his heavy equipment to inspect the snowbank or the lot when he arrived after 3:00 p.m. Levine suggested that the "best view" of the snowbank was from the seat of the front-end loader, which was taller than the snowbank, and that there was no reason to get out to inspect the area because the children would have been "clearly visible" if they were not hiding. However, the surviving child testified that decedent was wearing an orange coat and in a roofless "castle" on the top of the snowbank when the snow was dumped onto them. This raises a question of whether decedent may have been visible if the operator of the front-end loader had the superior vantage point that Levine emphasized in his moving affidavit. This is particularly true because there was notice to the Village of children in the vicinity of the lot near the time of the accident, as established by a DPW employee operating a dump truck. Specifically, he testified that he, observed the children walking on the side of the road near the lot and, after dumping a load of snow in the lot, he again observed the children on a residence’s porch near the lot. All of this occurred within approximately 20 to...