Opinion
# 2017-053-501 Claim No. 124859 Motion No. M-88618
01-03-2017
JESSICA GAGLIA, as Mother and Natural Guardian of ALANA GAGLIA, an Infant, v. STATE OF NEW YORK
MUSCATO & SHATKIN, LLP BY: Marc Shatkin, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
Defendant's motion for summary judgment is granted. Claimant failed to raise a triable issue of fact to establish that the defendant owed a duty of care to the infant.
Case information
| UID: | 2017-053-501 |
| Claimant(s): | JESSICA GAGLIA, as Mother and Natural Guardian of ALANA GAGLIA, an Infant, |
| Claimant short name: | GAGLIA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124859 |
| Motion number(s): | M-88618 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | MUSCATO & SHATKIN, LLP BY: Marc Shatkin, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 3, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This is an action brought by the claimant Jessica Gaglia, as mother and natural guardian of Alana Gaglia, an infant, for personal injuries the infant sustained from bed bug bites. The bites were allegedly caused by an infestation of bed bugs in the claimant's home from January 2014 to June 2014 when the infant claimant was diagnosed with severe bed bug bites. According to the claim, claimant Jessica Gaglia was employed by the New York State Office for People with Developmental Disabilities (OPWDD). In October of 2013, she was assigned to a group home at 358 Highgate in Buffalo, New York which allegedly had a "persistent and on going [sic] bed bug infestation." It is alleged in the claim that the defendant failed to address or eradicate the bed bug infestation at the group home. Defendant moves for summary judgment pursuant to CPLR 3212 on the grounds that the defendant did not owe a duty to the infant to protect her from an infestation of bed bugs allegedly transported to the infant's home by her mother from her place of employment. Claimant opposes the motion.
Summary judgment is a drastic remedy which should only be granted when there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324).
In any negligence case, the threshold question is whether the defendant owes a recognizable duty of care to the injured person (Hamilton v Beretta USA Corp., 96 NY2d 222 [2001]. "[W]hether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts." (Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8 [1988], rearg denied 72 NY2d 953 [1988]). Traditionally, questions concerning the imposition of a legal duty are resolved by "balancing 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" (Hamilton v Beretta, supra at 232).
In the present case, defendant argues that it had no duty of care to protect the infant, relying principally on the Court of Appeals' decision in Holdampf v A.C. & S. and Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig., 5 NY3d 486 [2005]). In Holdampf, the Court of Appeals held that the Port Authority did not owe a duty to the wife of an employee who was exposed to asbestos when she washed dirty work clothes. In so holding, the Court noted that a duty to protect arises where there is a relationship between defendant and plaintiff or between defendant and a third party when defendant is able to control the third party's actions. The existence of a relationship is the key element in exploring a duty analysis. Thus, the Court of Appeals in Holdampf reasoned that because plaintiff Elizabeth Holdampf had no relationship with defendant Port Authority either as her husband's employer or as the owner of the land where her husband's exposure occurred, the defendant Port Authority owed plaintiff Elizabeth Holdampf no duty of care (id. at 493-496).
More recently, the Court of Appeals had another opportunity to address the duty issue. In Davies v South Nassau Communities Hosp., 26 NY3d 563 (2016), the Court of Appeals was faced with the question as to whether third party liability could attach when the defendant hospital and its medical providers released a patient in an impaired state without warning her that the drugs administered to her in the hospital could affect her ability to safely drive a motor vehicle. In this case, the impaired patient, while driving home from the hospital, crossed a double yellow line and struck a bus injuring the plaintiff bus driver. The Court of Appeals reasoned that the defendant hospital and its medical providers by administering the disorienting drug created a duty to the plaintiff to warn the patient of the drug's effects as the defendants were the only ones who could have provided such a warning. It was the relationship between the defendants and the tortfeasor patient which placed the defendants in the best position to protect against the risk of harm (id. at 622). In finding a duty in Davies, the Court of Appeals reiterated that the duty could be satisfied by merely advising the patient of the dangers of the medication and that its decision was not about preventing the patient from leaving the hospital as "courts should proceed cautiously and carefully in recognizing a duty of care" (id. at 624).
Under the Court of Appeals holding in Holdampf, no duty of care would exist for the benefit of the infant in the present case as there is no relationship between the defendant and the infant. Similarly, there would be no duty of care owed to the infant under the Davies holding as there is no relationship between defendant and a tortfeasor whose conduct could be controlled by defendant. In fact, no tortfeasor has been identified. While there is some evidence through the deposition testimony of Gwendolyn Lane (defendant's exhibit E), the supervisor of the Highgate group home, that an earlier infestation of bed bugs was brought into the group home by a resident returning from leave, there is no evidence that the bugs that bit the infant were from the original infestation and had been hibernating, whether they were brought into the group home from an unknown source, or even if the source of the bed bugs that injured the infant was the group home (see p. 7 and 8 of defendant's exhibit E). Moreover, claimant testified at her deposition that she was given instructions on her first day at the Highgate group home as to the handling of bed bugs and was given a handbook to read and sign. According to claimant, the handbook gave instructions regarding the daily cleaning of the group home. It also instructed the group home staff to bring only a minimal amount of possessions into the group home and to wash their clothing upon returning home (see defendant's Exhibit D, pgs. 12-14).
The Court concludes that defendant has met its burden of proof by establishing that defendant owed no duty of care to the infant under the facts of this particular claim.
In opposition to defendant's motion, claimant argues that once the group home decided to warn its employees of the infestation and presented an infection control manual or handbook that a duty was somehow created presumably for the benefit of the infant to either close the group home or to remediate the personal homes of its staff as it was foreseeable that bed bugs would be transported to the homes of the staff. Foreseeability, however, should not be confused with duty. Foreseeability "does not define duty - it merely determines the scope of the duty once [a duty] is determined to exist" (Hamilton v Beretta U.S.A. Corp., supra at 232).
Claimant further argues that once a defendant undertakes a duty to act for the benefit of an injured person, even when no duty exists, that the act performed by the defendant must be performed with due care. Contrary to this argument, any voluntary act by defendant to provide an infection control manual to Jessica Gaglia or even in remediating the Highgate facility did not create a duty to the infant as nothing done by defendant was relied upon by the infant or placed the infant in a more vulnerable position (see Heard v City of New York, 82 NY2d 66, 72 [1993], rearg denied 82 NY2d 889 [1993]). As defendant noted in its reply and as explained by the Fourth Department in Crough v BJ's Wholesale Club, Inc., 87 AD3d 1372 (4th Dept 2011), defendant's act of presenting an infection control manual "neither enhanced the risk faced [by the infant], created a new risk nor induced [the infant] to forego some opportunity to avoid risk" (id. at 1373, quoting Heard v City of New York, id. at 71). Claimant herein has failed to raise a triable issue of fact sufficient to defeat defendant's motion for summary judgment. Accordingly, defendant's motion for summary judgment is granted and claim no. 124859 is hereby dismissed.
January 3, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of Assistant Attorney General Michael T. Feeley sworn to May 20, 2016, with annexed exhibits A- E; 2. Responding affirmation of Marc Shatkin, Esq. dated July 21, 2016, with annexed exhibits A-C; and 3. Reply affidavit of Assistant Attorney General Michael T. Feeley sworn to July 27, 2016.