CABA v. CITY OF NEW YORK (2018)

The following papers numbered 1 to 4 read on the below motion noticed on September 14, 2017 and duly submitted on the Part IA15 Motion calendar of December 7, 2017:

Papers Submitted Numbered

Defs.' Notice of Motion, Exhibits 1, 2

Pl. Aff. In Opp. 3

Defs.' Aff. in Reply 4

Upon the foregoing papers, the defendants City of New York and the Board/Department of Education of the City of New York (collectively, “Defendants”) move for an order pursuant to CPLR 3211(a)(7) and/or CPLR 3212, dismissing the plaintiff's complaint in its entirety and/or granting summary judgment in favor of Defendants. The plaintiff Jessica Caba (“Plaintiff”) opposes the motion.

I. Background

This action seeks damages for personal injuries arising out of an alleged incident that occurred on June 10, 2011, in Van Cortlandt Park in the Bronx. At the time of the incident, Plaintiff was employed at P.S. 32 as a literacy coach. As a part of her job duties, Plaintiff was instructed at times to supervise student trips and “field days” (Pl. EBT at 12–13). Plaintiff testified that she knew better than to object to any “extra duties” that she was asked to do by the principal of her school, Esther Schwartz (id at 14), because she witnessed and was the recipient of “some of her backlash” if you didn't do as you were told (id.). Plaintiff did what was asked of her in fear of losing her job or falling out of favor with the principal (id ). Plaintiff's other supervisor at the time was Assistant Principal Rebecca Bookman (id ).

On the date of this incident, Plaintiff and her coworkers were to accompany fourth grade students to Van Cortlandt Park for a field day. Bookman explained to Plaintiff that she had applied for a park permit, but she did not receive it yet. Plaintiff therefore was to go to the park ahead of time and secure an area for the students to play (id at 15). If anyone approached asking about a permit, Plaintiff was to say that it was with Bookman, who was arriving shortly at the park with students on the bus.

When Plaintiff arrived at the park, another employee from her school, “Mr. DiPena” was already there, sitting on a picnic table (id at 15). Mr. DiPena explained to Plaintiff that students from a different school were already there, and that the school had a permit for the whole area (id ). Plaintiff then went to talk to the teachers from that other school. Plaintiff explained to them that she had approximately 150 students on their way for field day. The other teachers said that they needed to use the picnic tables for high school students to sit and eat. Plaintiff said that she only needed a few tables because her kids were going to be eating on blankets in the field. Plaintiff and the other teachers eventually agreed to split the use of the field in half (id. at 16).Plaintiff then went back to Mr. DiPena and explained what happened. At that point, a third school with over a hundred students showed up at the park. Plaintiff said that people from that school came running into the field and starting moving picnic tables (id. at 16). At that point, Plaintiff went over to the teachers from this third school and they engaged in a “very hostile” conversation concerning use of the park space (id. at 17). The third school stated that they needed to use space near the barbeque pits and picnic tables. Plaintiff said that was fine, and she would use a portion of the park that did not have barbeque pits but had a few picnic tables (id ).

At some point, Plaintiff removed herself from the situation and returned to Mr. DiPena, who had secured a picnic table by sitting on top of it. Mr. DiPena advised her not to go over to the other teachers again because they “look crazy” and he couldn't help if a fight broke out (id. at 18). Plaintiff then looked around the park and after speaking with a Parks Department representative, she found a different spot that could be used for the field day (id.). Plaintiff eventually got in touch with Bookman, who was en route to the park on a bus with the students. Plaintiff explained what was happening with the other schools and that she was very nervous about the situation (id.). She also informed Bookman about the alternative park space that she found. Bookman told Plaintiff that she preferred not to have the field day in this alternative space, because the original space is where the students would usually be dropped off, and it was closer to a pizzeria where they would be getting pizza for the students (id. at 19). Bookman told Plaintiff that she and the students were “very close on their way (id. at 24), and they would “be there as soon as” they could (id. at 20). She told Plaintiff that to “do what [she] could to secure the area until [Bookman] got there,” and she said to make sure “we get at least two picnic tables” (id at 19–20), and to “do whatever [Plaintiff] could to get at least two tables” (id. at 24).

Plaintiff then returned to the group of teachers from the other schools. At this point, one of the assistant principals from the third school noted that Plaintiff did not have a permit with her, and he said that he should notify the Parks Department. Plaintiff explained that Bookman was on her way with the permit (id at 20), and that she just needed two picnic tables and some space for her students to play, and they would be leaving at lunch time (id.). The assistant principal then told Plaintiff, “[t]ake whatever you can. You want two picnic tables take them, but we're taking everything else” (id. at 20–21). Plaintiff said that at that point it was “like a frenzy,” as the first school was trying to get all of their picnic tables in their area, and the third school was trying to get picnic tables in their area (id. at 21).

Plaintiff testified that there were a few picnic tables left on a hill in the area where Mr. DiPena was sitting at a picnic table (id at 21, 23). Plaintiff asked Mr. DiPena for help moving a different picnic table, but he told her that he could not because he had injuries of his own (id at 23, 27). Plaintiff asked Mr. DiPena to stay at his table so they “wouldn't lose it” (id at 23). No one from other schools had attempted to take the table that Mr. DiPena was sitting on, although they were taking the tables around him (id at 24–25). Plaintiff then decided to drag the picnic table as close as possible to the area she wanted to secure until help arrived, so that it wouldn't be taken by other schools (id at 21). She described the table as probably longer than six feet, wood, with a tabletop and bench on either side, and “very heavy” (id. at 30–31). While no one told her she had to physically move the tables (id. at 26), Plaintiff said it was “implied” that she had to do so, because she was told to secure two tables, and the assistant principal from the third school said “take what you can get or you're not getting anything” (id. at 27). She dragged the table maybe 10 feet and then she felt a pain in her neck (id at 22). Once she started feeling pain, she stopped dragging the table, and another employee from her school came running up to her to help (id. at 33). Soon after, three other gentlemen from her school came to help move the table (id. at 33). Plaintiff was later told by Bookman to relax the rest of the day and not participate in activities. School principal Schwartz advised Plaintiff to get some rest over the weekend.

Bookman (whose name had changed to Lew at the time her examination before trial), acknowledged that Plaintiff made her aware that other schools wanted space in the park and there had been some level of aggression between the other schools (Bookman EBT at 31). She did not remember the conversation with Plaintiff concerning the availability of picnic tables and did not specifically recall what her instructions were to Plaintiff regarding securing the tables (id at 31, 39–40).

Plaintiff thereafter commenced this action against Defendants, asserting inter alia, that Defendants were negligent in failing to properly staff field day at the premises, instructing Plaintiff to move tables and secure the area, in asking Plaintiff to perform duties outside of her job description, failing to ensure her safety, for failing to obtain the proper permits for use of the premises, forcing Plaintiff to fight with others for use of the tables, in causing and allowing a dangerous condition to exist at the premises, and in causing and allowing numerous schools to use the premises for field days.

Defendants now move for summary judgment and/or to dismiss the complaint pursuant to CPLR 3212 and 3211(a)(7). Defendants argue that they are entitled to summary judgment regarding the negligent supervision claim because they owed no duty to protect Plaintiff from the obvious and inherent risk of her own decision to lift a heavy picnic table without assistance, despite Plaintiff's knowledge that help was on the way, and that the table could be secured by merely sitting on it. Defendants also allege that they provided sufficient staff and supervision as a matter of law, and they never ordered Plaintiff to move picnic tables or compelled her to “fight” with other schools for use of the tables. Moreover, Defendants assert that this matter must be dismissed because Plaintiff failed to plead the existence of a “special duty” owed, and in any event, Defendants owed Plaintiff no special duty and they are entitled to governmental immunity. Defendants also claim that they are entitled to dismissal of Plaintiff's premises liability allegations because there was no defective condition at the premises. In addition, Defendants assert that the defendant—City of New York is not a proper party as to Plaintiff's supervision claims, and the defendant—Department of Education is not a proper party with respect to the premises liability claims. Defendants further assert that they are not the proximate cause of Plaintiff's injuries, because it was Plaintiff's own reckless decision to attempt to move the table by herself that caused this accident. Finally, Defendants assert that Plaintiff's remaining claims—that defendants “failed to prevent foreseeable dangers” and “instructed plaintiff to engage in dangerous activities” fail to state a viable cause of action and must be dismissed.

In opposition to the motion, Plaintiff argues that as her employer, Defendants had a legal duty to provide her with a safe place to work. This matter is therefore distinguishable from circumstances where a plaintiff must show the existence of a special duty, which generally concern discretionary governmental function involving decisions as to the deployment of resources. Plaintiff contends that Defendants' duty to provide a safe place to work includes the obligation to provide proper supervision and instruction to employees for the performance of their tasks. Plaintiff asserts that the heavy lifting and moving that caused Plaintiff's injury is not a risk normally associated with her duties as a literacy coach or even as a supervisor of children on a field trip. Furthermore, Plaintiff did not assume the risk of injury, as she was following the instructions given to her to “do whatever she could” to secure the area needed for the field trip and to make sure that she got at least two picnic tables. Plaintiff argues that whether or not Plaintiff's injuries are foreseeable is for the fact finder.

Plaintiff also argues that the claimed open and obvious nature of the risk does not necessarily absolve a defendant of its duty to provide a safe work place—it is merely a factor to be considered by the jury in determining the issue of comparative fault. Plaintiff notes that claims by workers who injure themselves while lifting and moving heavy objects in the course of performing their assigned tasks have long been recognized and upheld. Plaintiff further asserts that there can be more than one proximate cause of an accident, and whether the actions of Plaintiff were so unforeseeable as to break the chain of causation between the instructions she was given and the injury that occurred is an issue of fact.

Defendants have submitted an affirmation in reply. Defendants' contentions are addressed infra if necessary.

II. Standard of Review

To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century–Fox Film Corp., 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993] ).

III. Applicable Law and Analysis

An employer is charged with the duty to provide its employees with a safe place to work (see Gasper v. Ford Motor Co., 13 NY2d 104, 110 [1963] ). This duty, however, “does not extend to hazards which are ‘part of or inherent in’ the very work being performed or to those hazards that may be readily observed by reasonable use of the senses in light of the worker's age, intelligence and experience” (Bombero v. NAB Construction Corp., 10 AD3d 170, 171 [1st Dept. 2004][quoting Gasper, supra, at 110][emphasis added] ).

In this case, the risk of moving picnic tables was not “part of or inherent in” Plaintiff's work as a literacy coach. Although she testified that she had supervised student field days and trips as a part of her job, there is no evidence that her work routinely involved moving picnic tables in order to set up play areas for the students. Nevertheless, the risk or hazard associated with moving the picnic table by herself was a risk that was readily apparent and observable by reasonable use of the senses, in light of Plaintiff's age, intelligence, and experience. At the time of the incident, Plaintiff was 29 years old and well-educated, and had experience lifting things due to her prior employment as a lifeguard and at restaurants (Pl. EBT at 65). Plaintiff was aware that the over six-foot long picnic table, containing a tabletop, two side benches, constructed of wood aside from bolts and screws, was “very heavy” (id. at 30–31). Prior to attempting to move the table, she asked for help from Mr. DiPena, thus indicating that she was aware that she needed help to move the table (id at 27:1–8). All of the foregoing indicates that the risk associated with moving the heavy picnic table was open and obvious to Plaintiff, and readily discernable, and thus the Defendants-employer had no duty to protect her from that risk (see Monahan v. New York City Dept. of Educ., 47 AD3d 690, 691 [2nd Dept. 2008][injury producing defect or risk—a wheel located on the base of a volleyball net pole—was open, obvious and not inherently dangerous]; Decker v. C & S Wholesale Grocers, Inc., 13 AD3d 573 [2nd Dept. 2004][risk inherent in plaintiff conduct, that a stack of boxes filled with supplies would collapse under his weight, was readily observable to a worker of plaintiff's experience]; see also Bodtman v. Living Manor Love, Inc., 105 AD3d 434, 434–35 [1st Dept. 2013] ).

Although Plaintiff alleges that “open and obvious” only goes to the issue of her comparative fault, a defendant will be entitled to summary judgment where the hazard at issue is not inherently dangerous (see, e.g, Wachspress v. Central Parking Systems of New York, 111 AD3d 499 [1st Dept. 2013]; see also Burke v. Canyon Road Restaurant, 60 AD3d 558, 559 [1st Dept. 2009][“a court is not ‘precluded from granting summary judgment to a landowner on the ground that the condition complained of by the plaintiff is both open and obvious and, as a matter of law, not inherently dangerous’ ” [internal quotation omitted] ). Plaintiff in this case does not demonstrate that the picnic table itself or the surrounding accident location was in any way defective or inherently dangerous.

This matter is distinguishable from Meyers v. City of New York. In that case, plaintiff had just descended a staircase and entered a schoolyard when she was suddenly struck by an errant ball that was being used by students during recess (230 AD2d 691 [1st Dept. 1996] ). Unlike in the present case, there was no contention in Meyers that the risk was open or obvious or that the school yard was not inherently dangerous. In fact the defendant—Board of Education in Meyers was aware of similar prior incidents. In this case, Plaintiff was confronted with a readily discernable risk that was not inherently dangerous, unlike an errant, fast-moving ball.

Defendants are also entitled to summary judgment because their actions were not the proximate cause of Plaintiff's injuries. When a worker is confronted with an ordinary and obvious hazard in connection with his employment, and has at his or her “disposal time and other resources (e.g., a coworker) to enable him or her to proceed safely, [the worker] may not hold others responsible if he [or she] elects to perform the job so incautiously as to injure [themselves]” (see Abbadessa v. Ulrik Holding, 244 AD2d 517, 518 [2nd Dept. 1997], lv. den., 91 NY2d 814 [1998] ).

In this case, although the task was not inherent to her job duties, Plaintiff was confronted with an “ordinary and obvious” hazard—that is, a heavy wooden picnic table that she had to “secure” to fulfill her employment duties at that time. Importantly, Plaintiff was never explicitly instructed by anyone to physically move the table, let alone move it by herself (Pl. EBT at 26). Plaintiff was only told by her supervisor to “do what she could” to “secure” or “get” two picnic tables in the area (id., at 19–20, 21, 24). Plaintiff's belief that a direction to physically move the table was “implied,” and moving the table was necessary in order to “secure” it—given the fact that others were moving tables in the area—is belied by her other testimony. Plaintiff noted that her coworker Mr. DiPena was able to secure a table by simply sitting on it (id. at 23, 24), and no one from the other schools had attempted to take the table that Mr. DiPena was sitting on (id. at 24, 25). Moreover, before she attempted to move the table, Plaintiff was told that Bookman and her other coworkers would be arriving shortly, and in fact they did arrive at the scene just as Plaintiff was attempted to drag the table (id at 33). The foregoing demonstrates that Plaintiff was confronted with an obvious and ordinary hazard, that she had the means to, and could appreciate the fact that she could accomplish her task safely—that is, to secure the table by sitting on it, as DiPerna did, and she knew that her coworkers would be arriving soon to help—but she nevertheless elected to proceed incautiously and injure herself. If Plaintiff claims that because she feared the principal she went above and beyond “securing” the table, and attempted to physically move it in order to secure an area, that choice was of her own volition. Under these circumstances, Plaintiff cannot hold Defendants liable for her injuries (Abbadessa v. Ulrik Holding, 244 AD2d 517, 518; Sepulveda–Vega v. Bancorp., 119 AD3d 850, 850 [2nd Dept. 2014]; compare Vega v. Restani Constr. Corp. 18 NY3d at 507 [trash can filled with concrete encountered by sanitation worker was not an ordinary and obvious hazard] ).

In light of the foregoing determination, Defendants are entitled to summary judgment, dismissing Plaintiff's complaint in its entirety. The Court thus does not reach the additional grounds for dismissal alleged by Defendants—that they are entitled to governmental immunity from suit as to plaintiff's claims that they (1) failed to provide adequate or additional staff; (2) instructed plaintiff to secure space and/or picnic tables for field day; (3) failed to obtain a permit; (4) permitted multiple schools to use the park; (5) failed to secure an area for field day; and (6) failed to properly supervise field day activities. The Court also notes that Defendants are entitled to dismissal of any claims of premises liability, because Plaintiff failed to plead the existence of any defective condition in the park or the picnic table at issue.

IV. Conclusion

Accordingly, it is hereby

ORDERED, that Defendants' motion for summary judgment and dismissal pursuant to CPLR 3212 and CPLR 3211(a)(7) is granted, and it is further,

ORDERED, that Plaintiff's complaint is dismissed with prejudice.

This constitutes the Decision and Order of this Court.

Mary Ann Brigantti, J.