Class5: Comtesse

comtesse: who was she

business woman

• skincare + consultant (cosmetology)

• republican part

negligence case

P claims that D’s carelessness caused an injury to P so that D should have to compensate P for the injury

reliefs?

• financial

• money settlement damages (ei pay medical bills)

• restitution

• fix the wrong

• pain and suffering

• lost wages (personal injury claims)

• injunction: stop doing smth

elements of negligence claim

• p suffers an injury

• d owned duty to persons including P to take due care against causing an injury of the type D suffered

• d breached the duty owed to P by acting carelessly toward P

• d’s breach actually and proximately caused P’s injury

actual cause

an injury/smth you did

proximate cause

close (time, area)

What would a plaintiff generally claim in slip and fall case?

• up to code

• snow removal

• construction

• invited vs not invited (trespassing)

Or how many ways could a proprietor of a building be to blame for a dangerous situation?

• lack of signage

• trained employees to clean

• injury

• awareness

• state (ex intoxicated, etc.)

• property lit?

Proprietor creates the

dangerous situation all on their own

Proprietor example

owner waxes the floor in such a way that makes it slippery or fails to remove snow from a their walkway

What constitutes Actual Notice in premises liability?

When someone other than the owner creates a danger, and the proprietor or an employee becomes aware of it but fails to take reasonable steps to fix it.

What constitutes Actual Notice in premises liability? example

A spill is announced over the loudspeaker on Aisle 11, but no one cleans it up.

What constitutes Constructive Notice in premises liability?

When a third party creates a danger and the proprietor does not know about it, but should have discovered it by exercising reasonable care in overseeing the property.

What constitutes Constructive Notice in premises liability? example

A hazardous, uneven sidewalk that went unnoticed due to a lack of routine inspections.

victims injury and proprietor

Proprietor’s Breach of duty has to actually and proximately cause the victim’s injury

if you dont allege it

ITS LOST

Who are we suing and where are they doing business. Why do we need to know this?

this is for jurisdiction

• files complaint in NYS

• verified business

we were invited there- why is this important?

your trespassing or not (SHE WAS INVITED)

• no trespass: comtesse was not a law breaker, criminal trespass would be a defense

• (have to anticipate that argument)

who is the propreitor

• Owner: WNRC, they own the building (asset)

• covers any lessee: not leased (dont want to sue the wrong person)

• covers employees/agents who maintain the actual area where the fall took place:

• Who was doing business - WNRC, employees, servants, agents

who can be there?

• a private club but open to the public- why is this important?: a private club but open to the public (public building)

• why does Comtesse have the right to be there? (she was a member/invited (lawfully and properly)

• Specific right to be there for the Plaintiff Comtesse: invitee

The Who, What, Where, When

Lays out the date, time and what happened to the Plaintiff

• who: comtesse

• what: slip and fall (fracture/bodily injuries)

• where: bathroom of WNRC

• when: during normal hours

Not my fault?

Plaintiff did not contribute to the accident nor the injuries sustained by any act or omission on her part

act or omission - why is this important

saying that she wasnt the cause and it wasnt her fault

• Who caused the injury

• How the defendant’s caused the injury

• What the defendant’s should have done

• the club

• negligence

• not over polished

what injury

gives notice of the injury- but in great detail using as many adjectives as possible

• Rendered sick

• Lame, sore, bruised, disabled, suffered a fracture, injured, wounded, bruised in and about various parts of her body

How long was Plaintiff injured?

confined to a hospital and her bed for a considerable period of time

• importance: loss of wages/loss of work

relief is looking for

max amount of damages; money

actual notice

Actual knowledge of the matter conveyed

constructive notice

A presumption: what a reasonable person would have known

prima facie

First impression - on the face of it

summary judgement

Judgment entered without a trial

How long do I have to make a claim?

• must be proximate

• Must file within 3 years of the incident

CPLR

civil procedure law (procedural law)

What ultimate relief (conclusion) does the Comtesse seek?

money

To state a prima facie case for summary judgment, the Club must submit

evidence that it did not breach any duty of care to the Comtesse

What evidence does the Club say supports its claim that it did not

breach a duty of care?

• o’conner affidavit

• simon deposition

• (both work for club so biased)

affidavit

hearsay

testimony

on the stand —> only sworn in front of the fact finder

deposition

• filmed or in writing

• not told its an interrogatory

Does the Court think the Club’s evidence establishes a prima facie

entitlement to summary judgment? How does the Court justify its

conclusion?

• comtesse said they have actual notice - they created the problem (shes seen them wax the floors)

• defendants said nope we dont wax the floors (but they wax the 3rd floor and only cleaned it w mop and water)

trial court discounted

what comtesse says

3 sorts of negligence (all used in comtesse)

(1) creating a dangerous situation,

(2) having actual notice of a dangerous situation,

(3) having constructive notice of a dangerous situation)

What evidence does the Court say the Comtesse submitted to prove these facts?

testimony (which they credit its speculation; lying)

Does the Court believe the Comtesse’s evidence tends to prove the Club committed one or another of these forms of negligence?

no speculation; lying

How does the Court justify its conclusions?

• saying defendant providing evidence (just based on what she said)

• testimony is speculation and cant say the presence of wax (insufficient evidence)

comtesses’s position (conclusion)

The WNRC committed negligence against the Comtesse