Lozada v Arco Mgt. Corp.

[*1] Lozada v Arco Mgt. Corp. 2005 NY Slip Op 51097(U) Decided on April 6, 2005 Supreme Court, New York County Ling-Cohan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2005
Supreme Court, New York County

Carmen Lozada, by her attorney in fact, Leo Lozada, Plaintiff,

against

Arco Management Corp., LINCOLN AMSTERDAM HOUSE, INC., THE CITY OF NEW YORK, THE NEW YORK CITY HOUSING AUTHORITY and HOME HEALTH MANAGEMENT SERVICES, INC., Defendants.



100487/03

Doris Ling-Cohan, J.

Background

This is an action to recover damages for personal injuries sustained by plaintiff Carmen Lozada, on October 19, 2001, when she tripped an fell on the sidewalk on the south side of West 65th Street, while walking toward the southeast corner of the intersection of West 65th Street and West End Avenue in New York, New York. Defendant Home Health Management Services, Inc. (Home Health) moves, pursuant to CPLR 3212, for an order granting summary judgment and [*2]dismissing the complaint, as against it [FN1].

Home Health is under contract with the City of New York (City) to furnish home attendants to its disabled and elderly clients (Affirmation of Bruce S. Ginsberg, Esq. on Behalf of Plaintiff In Opposition to Home Health's Motion [Ginsberg Aff.], Ex. E , deposition of Home Health by Francis Hernandez [Hernandez Dep.], at 5). Mrs. Lozada was an elderly woman of 84 years of age at the time of the accident (Ginsberg Aff., Ex. D). She suffers from various psychiatric disorders, including schizophrenia, dementia and paranoia (Ginsberg Aff., Ex. B). She has been under the care of home attendants from Home Health at least since 1989 (Hernandez Dep., at 8). The City makes an initial medical evaluation of a client, followed by a visit from a nurse from Home Health, who makes an assessment to formulate a Plan of Care (Hernandez Dep., at 6-7, 19). The nurse from Home Health reevaluates each client every three months and completes a new Plan of Care form (Hernandez Dep., at 7, 19). In 1989, Home Health evaluated Mrs. Lozada and found her inappropriate for cluster or group care, in which she would be left alone for portions of the day, due to her mental problems ( Hernandez Dep., at 10-11). Instead, Mrs. Lozada was under the care of a home attendant twelve hours each day, seven days a week (Hernandez Dep., at 11).

The latest Plan of Care prior to the accident was completed by a nurse from Home Health on September 29, 2001 (Ginsberg Aff., Ex. C). The Plan described Mrs. Lozada's health problems as "confused, slow ambulation", and prescribed care for her by a home attendant seven days a week, twelve hours a day, between the hours of 8:00 A.M. and 8:00 P.M. (Id.). The Plan of Care is used by the home attendant to carry out her duties (Hernandez Dep., at 19). The September 29, 2001 Plan of Care prescribed the assistance Mrs. Lozada required with her daily activities. The prescribed assistance included: "assistance with ambulation" ("contact guard outdoors"), requiring the home attendant to hold onto the client to prevent falls; "safety supervision" ("keep areas uncluttered"), requiring the health aide to hold the client if the client cannot walk and to make sure the path on the sidewalk is clear for the client; and "escort" ("MD. appointments/outdoors"), requiring the attendant to accompany the client to doctors' appointments and to be with her at all times while outdoors (Ginsberg Aff., Ex. C; Hernandez Dep., at 29-33).

On the day of the accident, Saturday, October 19, 2001, Mrs. Lozada had come to visit her daughter, Susan, who lives in an apartment building located at 110 West End Avenue, on the corner of West 65th Street in New York, New York (Ginsberg Aff., Ex. G, Deposition of Leonela Lopez [Lopez Dep.], at 7, 25). On that day, Susan was also visited by Leonela Lopez, a friend whom she had met while teaching, and the sister of Ms. Lopez (Id., at 15-16). Prior to the accident, Mrs. Lozada, Susan and Ms. Lopez and her sister had been to a video store on West 68 th Street ( Id.). Afterwards, Ms. Lopez walked back to Susan's apartment with Mrs. Lozada. Ms. Lopez, who was sixteen years of age at the time, had never been alone with Mrs. Lozada, a thin, frail elderly woman who was taller than her and who walked slowly (Lopez Dep., at 1, 7-8, 27, 38, 45-46). Ms. Lopez claims that she held onto Mrs. Lozada 's right arm, as they walked down Amsterdam Avenue and turned on West 65th Street to proceed towards Susan's apartment on the corner of West End Avenue (Id., at 30, 38, 71). Mrs. Lozada tripped on an uneven block in the [*3]sidewalk on West 65th Street, twisted to the left and fell with her back on the sidewalk (Id., at 17, 39-40). Ms. Lopez claims that she held onto Mrs. Lozada's hand when she fell, but could not prevent the fall and did not help her up (Id., at 40). The accident occurred at approximately 6:00 P.M. in the evening (Id., at 30; Ginsberg Aff., Ex. A [Bill of Particulars, ¶ 1], Ex. D [Ambulance Call Report). Mrs. Lopez testified that she knew that a home attendant cared for Mrs. Lozada, but the attendant was not present on the day of the accident (Lopez Dep., at 23, 28-29, 57-58). Mrs. Lozada sustained injuries as a result of the accident, including a neck fracture and injuries to her right knee and hip (Ginsberg Aff., Ex. A [Bill of Particulars, ¶ 4]).

Discussion

Home Health asserts that it is entitled to an order granting summary judgment in its favor, as it has established, as a matter of law, that it did not breach a duty owed to Mrs. Lozada, and even if the agency breached a duty to assist Mrs. Lopez, such a breach was not the proximate cause of the accident. For the reasons discussed below, Home Health's summary judgment motion should be denied, as there are triable issues of fact as to both whether Home Health breached a duty it owed to Mrs. Lozada and whether this breach was a proximate cause of the accident.

1. Breach of Duty

Plaintiff's Bill of Particulars describes the allegations of negligence against defendant Home Health, as "[f]ailing to assist the plaintiff in proceeding to the location of the occurrence complained of" (Ginsberg Aff., Ex. A , at ¶ 3). Home Health asserts that the home attendant, whom it acknowledges was not present at the time of the accident, had no duty to assist Mrs. Lozada at that time (Reply Affirmation of Neil W. Fay, Esq., in support of Home Health's Motion [Fay Reply Aff.], at ¶ 6). Rather, according to Home Health, the accident occurred during the twelve hour period when the agency was not obligated to care for Mrs. Lozada and she was under the care and custody of her family, specifically, her daughter Susan (Id., at ¶ 4). It was Susan's decision to entrust Mrs. Lozada to Ms. Lopez, who actively assisted her during the walk down West 65th Street, where she fell (Id., at ¶ ¶ 5,6).

Home Health's position is, however, contradicted by facts on the record. The accident occurred at approximately 6:00 P.M. on a Saturday, during the twelve hour period of 8:00 A.M. to 8:00 P.M. when the agency's Plan of Care required a home attendant to care for Mrs. Lozada (Ginsberg Aff., Ex. C). Indeed, a Home Attendant Program Client Incident Report prepared by Home Health for its insurer stated that the accident had occurred during the attendant's service hours [FN2] (Ginsberg Aff., Ex. F). As was discussed above, the Plan of Care specifically required the home attendant to accompany Mrs. Lozada and hold onto her while walking outside, to prevent her from falling (Ginsberg Aff., Ex. C; Hernandez Dep., at 30-33). [*4]

Under the circumstances of this matter, there are sufficient facts from which a jury could conclude that Home Health breached its duty to have a home attendant to assist Mrs. Lozada while walking outdoors at the time of the accident. There are several prior decisions involving similar factual circumstances and issue. In Esposito v Personal Touch Home Care, Inc. (288 AD2d 337 [2d Dept 2001]), the Appellate Division held that a home care agency's summary judgment motion should be denied, and concluded that there were triable issues of fact as to whether the agency had breached its duty to a disabled patient, by leaving him unattended by a home health aide, when he fell in front of the bathroom in his home. In Calick v Double A Prop. Assoc., Inc. (251 AD2d 278, 279-280 [2d Dept 1998]), the Appellate Division concluded that a motion to set aside a jury verdict against home care agency should have been denied, where there was a factual issue as to whether the home care attendant acted reasonably, when she did not observe a puddle on the floor of an elevator, before allowing a disabled client to enter the elevator, where he fell on the puddle (see also Reavey v State, 125 AD2d 656, 657 [2d Dept 1986] [State breached its duty to provide for safety of patient in psychiatric center, whose illness and medication impaired her mobility, where patient fell when therapy aide, who had been escorting her by hand, had left her unattended]). Accordingly, there is a triable issue of fact as to whether Home Health breached its duty to provide Mrs. Lozada the assistance of a home attendant, prescribed by the Plan of Care, while she was walking at the time of the accident.

2. Proximate Cause

Defendant Home Health further asserts that plaintiffs failed to sustain their burden to establish that the alleged failure of its home attendant to assist Mrs. Lozada at the time of the accident was a proximate cause of her fall. Rather, Home Health contends that the sidewalk defect on which Mrs. Lozada allegedly tripped was the sole proximate cause of her fall and even the most intense supervision could not have prevented the accident, which occurred in a short period of time (see Affirmation of Neil W. Fay, Esq. In Support of Home Health's Motion [Fay Aff.], at ¶ ¶ 14-16; Fay Reply Aff., at ¶ 6).

According to plaintiff, however, there are sufficient facts from which a jury could conclude that Home Health's failure to assist Mrs. Lozada was a proximate cause, or legal cause, of her fall. This Court agrees, for the reasons discussed below.

In order to prove that a defendant's negligence is a proximate, or legal, cause of an accident, plaintiffs must establish a prima facie case that such negligence was a substantial cause of, or a substantial factor in bringing about, the events which produced the injury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; PJI3d 2:70 [2005]). Where, as in the instant case, there may be more than one cause of an accident, in order to be a substantial factor, a cause cannot be slight or trivial; however, a cause may be a substantial factor even if a jury assigns a relatively small percentage of fault to it (see PJI3d 2:70 [2005]; see also PJI3d 2:71 [2005] ["Proximate Cause - Concurrent Causes", stating that each of several independent negligent acts can be regarded as a cause of an injury, "provided that it was a substantial factor in bringing about the injury"]).

Generally, the issue of whether a defendant's act or omission is the proximate cause of the plaintiff's injury is a question of fact for the jury, unless the evidence of the cause of the accident is undisputed and only one conclusion can be drawn from the facts (see 1A NY PJI3d 362 [*5][2005]). In this case, there is a triable issue of fact as to whether Home Health's breach of its duty to provide a home attendant to assist Mrs. Lozada while walking outdoors was a substantial factor in causing the accident. As indicated previously, the assessment in the submitted Plan of Care states that Mrs. Lozada required a home attendant to escort and hold onto her while walking outdoors to prevent her from falling.

In this case, Mrs. Lozada's tripping on an alleged sidewalk defect is analogous to an intervening act in the chain of causation. As the Court of Appeals has stated, "In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (Derdiarian v Felix Contr. Corp., 51 NY2d at 315; see also PJI3d 2:72 [2005] ["Proximate Cause - Intervening Causes"]). The Court of Appeals further observed, "That defendant could not anticipate the precise manner of the accident or the extent of the injuries, however, does not preclude liability as a matter of law where the general risk and character of the injuries are foreseeable" (Derdiarian, 51 NY2d at 316-317). Generally, the question as to whether an accident or injury is the foreseeable consequence of a defendant's negligence must be resolved by the trier of fact (Id., at 315).

Under the facts of this case, particularly where the Plan of Care prescribed a home attendant to accompany and hold Mrs. Lozada while walking outside to prevent falls, a jury could conclude that her tripping and falling was a foreseeable consequence of the lack of an attendant from Home Health to escort her (see Willis v City of New York, 266 AD2d 207 [2d Dept 1999] [where disabled patient was injured in a fire in his home after health aide had left early during her working hours, court denies summary judgment to home health agency, finding triable issues of fact as to whether agency, through its employee, breached its duty of care, whether such breach was a proximate cause of the plaintiff's injuries and whether the injuries were foreseeable]; cf. Esposito v Personal Touch Home Care, 288 AD2d 337 [court concluded that summary judgment should be denied to home care agency, after finding triable issue of fact as to whether agency breached its duty by leaving patient unattended by a home health aide; jury would also have to determine whether any breach of duty was the proximate cause of the patient's fall]; Calick v Double A Prop. Assoc., Inc., 251 AD2d 278 [court found factual issue for jury as to reasonableness of home attendant's failure to notice that a puddle was on the elevator floor when she let patient enter; jury would also have to determine whether any breach of duty by the attendant was a proximate cause of the patient's fall]). Additionally, contrary to Home Health's contention that Mrs. Lozada was actively assisted by Ms. Lopez at the time of the accident, there is a triable issue of fact as to whether an untrained sixteen year old who had never been alone with this frail, elderly woman was equivalent to a trained home attendant.

In summary, there are triable issues of fact as to whether defendant Home Health breached its duty to Mrs. Lozada, whether this breach was the proximate cause of her accident and whether Mrs. Lozada's fall was a foreseeable consequence of Home Health's breach of its duty. Accordingly, Home Health's motion for summary judgment is denied.

Accordingly, it is

ORDERED that the motion for summary judgment of defendant Home Health Management Services, Inc. is denied; and it is further

ORDERED that, within thirty days of entry, plaintiffs shall serve upon all parties a copy of this decision and order, together with notice of entry. [*6]

This constitutes the Decision and Order of the Court.

Dated: April 6, 2005 ENTER:

Doris Ling-Cohan, JSC

Check One: [ ] FINAL DISPOSITION [ X ] NON-FINAL DISPOSITION

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Footnote 1: The court acknowledges the assistance of Court Attorney Susan E. Jaffee, Esq.on this decision.

Footnote 2: The Incident Report reports an alleged statement by Mrs. Lozada's son, Leo, that his sister (Susan) told him that the accident occurred when the home attendant was escorting his mother by the arm (Ginsberg Aff., Ex. F). This alleged hearsay statement is directly contradicted by the testimony of Ms. Lopez, who stated that she was alone with Mrs. Lozada at the time of the accident and the home attendant was not present (Lopez Dep., at 8, 45-46, 57-58). Moreover, Home Health may have additional records to indicate whether the home attendant was working for Mrs. Lozada at the time of the accident (Hernandez Dep., at 26-29).