Week of April 16-22

In Parke v. ST Owner LP, decided today (http://www.nycourts.gov/reporter/3dseries/2017/2017_03070.htm), the First Department ruled on the issue of when a defendant may “assume” a duty of care by undertaking some conduct that plaintiff alleges caused her accident by leaving her in a more vulnerable position. Many plaintiffs will argue that if a defendant undertakes some affirmative act and then an accident occurs, the defendant voluntarily “assumed” a duty and can be held liable. In Parke, the First Department drew a line and affirmed summary judgment. Several different, but closed related, defenses can be extracted from this decision.

In Parke, the Plaintiff was injured when she fell down a darkened staircase in her apartment building, which was left without electricity. The building's owners retained security guards. Plaintiff asserted that a security guard advised her that it was "okay" to use her cell phone to light her way up the staircase. She further asserted that the guard, Ubogu, turned his own flashlight on, and guided her to the doorway of the staircase and up the first flight of stairs. When she reached the landing, Ubogu turned his flashlight off, leaving her in the dark. When she then attempted to find the stairway to continue up, she instead fell down the flight of stairs.

The Court explained: “Ubogu did not voluntarily assume a duty of care toward her by any negligent words or acts inducing reliance (see Heard v City of New York, 82 NY2d 66, 71-72 [1993]). Obogu's casual response of ‘okay,’ in response to plaintiff's suggestion that she use her cell phone to light her way up the stairs, did not amount to a ‘deliberate misrepresentation for purposes of determining whether an action in negligence has been established’ (id. at 74-75; see Ferrari v Bob's Canoe Rental, Inc., 143 AD3d 937, 939 [2d Dept 2016]). Furthermore, Ubogu's conduct in shining his flashlight up the first flight of stairs did not alter the fact that plaintiff had intended to climb the steps in the first place, and was already using her cell phone for light. Accordingly, Ubogu's actions did not place plaintiff ‘in a more vulnerable position’ than she would have been in had he done nothing (Murshed v New York Hotel Trades Council & Hotel Assn. of N.Y. City Health Ctr., Inc., 71 AD3d 578, 579 [1st Dept 2010]).”