Katz v. United Synagogue of Conservative Judaism

135 A.D.3d 458, 23 N.Y.S.3d 183

Opinions

Order of the Appellate Term of the Supreme Court, First Department, entered on or about January 28, 2014, which reversed an order of the Civil Court, New York County (Frank P. Ñervo, J.), entered April 17, 2012, granting defendant’s motion for summary judgment dismissing the complaint, denied the motion, and reinstated the complaint, affirmed, without costs.

Plaintiff suffered a knee injury while participating in a study-abroad program in Israel that was operated by defendant. At the time of her injury, she was a 19-year old student who had limited knowledge of Hebrew and was living in a small town in southern Israel, in an apartment provided to her by the program, which also provided the participants with counselors in order to help them with, inter alia, medical issues. According to plaintiff when physical therapy was prescribed for her knee injury, defendant refused to arrange for such treatment and, as a result, her recovery was delayed and compromised.

In order to establish a claim for negligence, a plaintiff must show that the defendant owed the plaintiff a duty and breached that duty, and that the breach proximately caused the plaintiff harm (see Kenney v City of New York, 30 AD3d 261, 262 [1st Dept 2006]). The existence of a duty depends on the circumstances, and the issue is one of law for the court; “the court is to apply a broad range of societal and policy factors” (Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 500 [1st Dept 2007], lv denied 9 NY3d 809 [2007]).

In determining the threshold question of whether a defendant owes a plaintiff a duty of care, courts must balance relevant factors, “including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 586 [1994]). The parties’ relationship may create a duty where it “places the defendant in the best position to protect against the risk of harm . . . and . . . the specter of limitless liability is not present” (Matter of New York City Asbestos Litig., 5 NY3d 486, 494 [2005] [internal quotation marks omitted]). Thus, where a defendant exercises a sufficient degree of control over an event, a duty of care to plaintiff may arise (see Derezeas v Robert H. Glover & Assoc., Inc., 121 AD3d 523 [1st Dept 2014] [defendant owed pedestrian, who was injured by a runner, a duty of care because it supervised a running class, including selecting the route and providing coaches to ensure that runners stayed on the left and warn pedestrians]; Hores v Sargent, 230 AD2d 712, 712 [2d Dept 1996] [college, which organized and supervised a bicycle trip, selected the route, operated vans to help riders, and instructed participants on safety, had “a sufficient degree of control over the subject event, and thus was under a duty to take reasonable precautions for the safety of the participants”]).

Here, the parties’ relationship created a duty to provide plaintiff with the necessary medical care because not only did defendant agree to do so, it was in the “best position to protect against the risk of harm” and “the specter of limitless liability [was] not present” (Matter of New York City Asbestos Litig., 5 NY3d at 494 [internal quotation marks omitted]). The program was not an ordinary college or study-abroad program. Indeed, the second “semester” did not take place in a university environment. Rather, it took place in Yerucham, a small town in the Negev desert, involved volunteering, and was supervised by counselors who did “[p]retty much everything,” including responding to medical issues. Under the circumstances, defendant exercised a sufficient degree of control over the program to create a duty of care to plaintiff (see Derezeas, 121 AD3d at 523; Hores v Sargent, 230 AD2d at 712).

Our holding that a duty of care exists in this case is not premised on the doctrine of in loco parentis.

Footnotes

•

* Accordingly, to the extent Wells v Bard Coll. (184 AD2d 304 [1st Dept 1992]) and McNeil v Wagner Coll. (246 AD2d 516 [2d Dept 1998]) hold that in loco parentis does not apply at the college level, that holding is irrevelant to our analysis.

In any event, Wells and McNeil are easily distinguishable from the facts of the present case. In Wells, the student did not avail himself of available medical care and refused medical assistance, and there was no basis to find that defendant ever knew of the seriousness of his illness. In contrast, here, the program allegedly refused to comply with plaintiff’s request that it arrange for insurance coverage for, and transportation to, physical therapy. Moreover, there is no indication in Wells that plaintiff relied on the theory that defendant assumed the duty.

In McNeil, which involved a student studying abroad, the Court found that “the defendant had no obligation to supervise the plaintiff’s health care following her accident” (246 AD2d at 517). The court rejected plaintiff’s contention that the program administrator, who accompanied her to the hospital and allegedly failed to inform her that the physician recommended immediate surgery, “voluntarily assumed a duty of care by acting as her interpreter . . . and that his breach of that duty placed her in a more vulnerable position,” since there was evidence that the physician could speak English, and plaintiff’s claim that the administrator was told of the recommendation of surgery was unsupported (id.).

In contrast, plaintiff testified that defendant represented that it would assist her with medical care, which practice the program director confirmed, and plaintiff’s testimony that the program refused to help her obtain prescribed physical therapy is unrefuted, which circumstances are compounded by a language barrier and the remoteness of Yerucham, requiring that plaintiff travel for treatment. Under these circumstances, defendant failed to establish, as a matter of law, that it did not owe plaintiff a duty to arrange for physical therapy (see Matter of New York City Asbestos Litig., 5 NY3d at 494; Hores, 230 AD2d at 712). While plaintiff, an adult, with access to her parents in another country and family in Jerusalem, may not have been as helpless as she makes herself out to be, that fact is but one factor to consider.

Defendant accurately maintains that its general internal policy of accompanying injured participants to medical appointments and arranging for transportation to treatment in remote areas does not create a legal duty. However, the failure to provide access to physical therapy here was more than a policy violation. Plaintiff’s testimony that she was told that the program would set up medical appointments for her and attend them with her is uncontroverted and consistent with the program’s accompaniment of plaintiff to the hospital and doctors’ appointments.

Furthermore, it was foreseeable that the failure to arrange for prescribed care could compromise recovery. Defendant also maintains that, even if it owed plaintiff a duty, that duty was not breached because the program took plaintiff for medical treatment and “follow [ed] the general recommendations of the doctors who examined Plaintiff.” This argument ignores the fact that plaintiff was prescribed physical therapy, which was not provided.

We disagree with the dissent’s assertion that even if defendant owed plaintiff a duty, defendant met its prima facie burden on causation, and plaintiff failed to submit sufficient evidence to raise an issue of fact as to whether she suffered harm as a result of defendant’s failure to arrange for physical therapy. Contrary to the dissent, defendant failed to make a prima facie showing that plaintiff’s injuries were not caused or exacerbated by the alleged breach, and, thus, the burden never shifted to plaintiff on this issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Collado v Jiacono, 126 AD3d 927, 928 [2d Dept 2015] [“a moving defendant does not meet its burden of affirmatively establishing its entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff’s case. It must affirmatively demonstrate the merit of its claim or defense”]).

On the motion, defendant improperly attempted to shift the initial burden to plaintiff, by challenging the existence of evidence as to causation, rather than affirmatively establishing a lack of causation, such as via an expert affidavit. Defendant argued that “[p]laintiff has failed to produce any evidence . . . suggesting that [defendant’s] conduct caused her injury to worsen,” and proceeded to poke holes in plaintiff’s theory of causation, as does the dissent (Davranov v 470 Realty Assoc., LLC, 79 AD3d 697 [2d Dept 2010] [defendant cannot satisfy burden merely by pointing out gaps in plaintiffs case]). While plaintiff’s ability to establish a causal connection may be difficult, that does not establish the absence of a causal connection. Concur — Acosta, Saxe and Moskowitz, JJ.

The in loco parentis doctrine may apply to create a duty of care where a defendant takes the place of a plaintiff’s parents. However, “New York has affirmatively rejected the doctrine of in loco parentis at the college level (Wells v Bard Coll., 184 AD2d 304, 304 [1st Dept 1992], citing Eiseman v State of New York, 70 NY2d 175, 190 [1987], lv dismissed in part, denied in part 80 NY2d 971 [1992]; see also Sirohi v Lee, 222 AD2d 222 [1st Dept 1995], lv dismissed in part, denied in part 88 NY2d 897 [1996]). In so doing, the courts have found that colleges do not owe their adult students a duty to supervise their health care following an accident (see Wells v Bard Coll., 184 AD2d at 304; McNeil v Wagner Coll., 246 AD2d 516, 517 [2d Dept 1998]).