DECISION AND ORDER The following papers, NYSCEF Docs. 62 through 94, were read in connection with Defendant’s motion seeking summary judgment dismissing Plaintiff’s complaint: Upon the foregoing papers, it is ORDERED that this motion is disposed of as follows: Plaintiff commenced this action to recover damages for personal injuries he sustained on August 8, 2018. Defendant now moves for summary judgment dismissing the complaint. Plaintiff opposes the defendant’s motion. For reasons set forth below, the Court denies Defendant’s motion. According to the allegations in the complaint, Plaintiff was a patient at Defendant’s hospital on August 8, 2018. He was in a bed in a room on the fourth floor being attended to by an “Employee Doe”. “Employee Doe,” upon hearing what sounded like gunshots coming from another room on the fourth floor, “bolted” from the room. In so doing, “Employee Doe” allegedly knocked over a pitcher of water, spilling its contents on the floor, and left open the door to Plaintiff’s room. To protect himself, Plaintiff sought to get out of bed to shut the door but, in getting out of bed, he slipped on the water that had spilled on the floor and fell, sustaining injuries. Plaintiff alleges that Defendant was negligent by, inter alia, failing to develop an adequate emergency plan and procedures to effectively deal with active shooter situations, failing to train its employees in the proper procedures to be followed in response to active shooter situations, and failing to take necessary steps to alleviate the dangerous condition of the spilled water on the floor of Plaintiff’s hospital room. In moving for summary judgment dismissing the complaint, the defendant contends that it did not breach any duty owed to the plaintiff, as the acts of the gunman on August 8, 2018, were completely unforeseeable, and any breach of a duty owed to the plaintiff was not a proximate cause of the plaintiff’s injuries. The defendant also urges that given the exigent circumstances surrounding the active shooter event, “Employee Doe” could not be expected to clean up water from a pitcher he knocked over prior to his “bolting” from plaintiff’s room. In support of its motion, the plaintiff submits, among other things, a transcript of Plaintiff’s testimony at the General Municipal Law §50 — h hearing, an affidavit of its Chief Security Officer, Thomas Belfiore, and an affidavit from George Kadash, who is proffered as an expert in hospital security, regarding the sufficiency of Defendant’s active shooter policy. The Court notes that Defendant previously moved for summary judgment prior to the completion of discovery, which the Court denied in a Decision and Order dated May 5, 2021. Therefore, as a threshold determination, the Court finds that Defendant’s earlier motion for summary judgment does not prevent its instant application based upon new evidence and the determinations made in connection with that earlier application do not foreclose further inquiry herein. See McIvor v Di Benedetto, 121 AD2d 519 [2d Dept 1986]. “As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986][internal citations omitted]. “Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact.” Anyanwu v Johnson, 276 AD2d 572 [2d Dept 2000]. In deciding such a motion, the Court must view the evidence in the light most favorable to the non-moving party. See Kutkiewicz v Horton, 83 AD3d 904 [2d Dept 2011]. “Although the issue of proximate cause is generally one to be determined by the finder of fact, it is the function of the court to determine if a prima facie case of causation has been established in the first instance.” Rubinfeld v City of New York, 263 AD2d 448, 450 [2d Dept 1999]. Defendant’s “Code Silver” Policy Plaintiff alleges that Defendant was negligent by failing to safeguard him from the foreseeable harm caused by an active shooter at WMC and by having “Employee Doe” bolt from his room, abandoning him with his room door open. In this particular context, “[w]ith regard to the plaintiff’s allegations of simple negligence, ‘[a] hospital, like any other property owner, has a duty to protect persons lawfully present on its premises, including patients and visitors, from the reasonably foreseeable criminal or tortious acts of third persons’ (Royston v Long Is. Med. Ctr., Inc., 81 AD3d 806, 807 [2011]; see Sandra M. v St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d 875, 878 [2006]). ‘A hospital also has a special duty ‘to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety” (Sandra M. v St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d at 878, quoting N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252 [2002]). ‘Both theories of liability require a showing that the wrongdoer’s conduct was foreseeable to the defendant’ (Sandra M. v St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d at 878; see N.X. v Cabrini Med. Ctr., 97 NY2d at 253).” (Williams v Bayley Seton Hosp., 112 AD3d 917, 918 [2d Dept 2013]). On the issue of foreseeability, Defendant offers the affidavit of its Chief Security Officer, Thomas Belfiore, who, as pertinent herein, states that on August 8, 2018, Richard DeLucia brought a concealed firearm onto hospital grounds and proceeded to the fourth floor, where his wife was admitted as a patient. Once there, Mr. DeLucia shot his wife and then himself, killing them both. Mr. Kadash states that there were no reports of prior violence or threats of violence from Mr. DeLucia, and that this was the first shooting since the hospital’s founding in 1977. Regarding the sufficiency of Defendant’s security policy and training for active shooter incidents, i.e., a “Code Silver,” Defendant offers an affidavit from George Kadash. Based upon his past service as a State Trooper with the Pennsylvania State Police and as a consultant regarding the management and de-escalation of aggressive behavior in the workplace, Mr. Kadash opines that “the security policy and training for active shooter incidents (“Code Silver”) that was in place at WMC in August of 2018 was at all times in conformance with security best practices, as modeled by the Department of Homeland Security.”1 He further states that “Employee Doe” “bolting” from Plaintiff’s room was consistent with Defendant’s “Code Silver” policy, which incorporates general guidelines of Run, Hide, Fight. “The policy states that if it is safe to do so, the first course of action that should be taken is to evacuate the immediate area and get as far away as possible to a safe location. Staff are be trained to leave personal belongings, notify others to exit the building immediately, avoid elevators, take others with them, but not to stay behind because others will not go.”2 Tellingly, there is no requirement to safeguard patients or secure rooms before evacuating the area to a safe location. Consistent with this, Mr. Belfiore explains that staff are trained that they can take others with them if they are ambulatory, but they should not put their own personal safety at risk if others are unable to run with them. Mr. Kadash states that expecting “Employee Doe” to clean up spilled water or close the door to Plaintiff’s room as an active shooter incident unfolds defies logic and is contrary to Defendant’s “Code Silver” policy. Consistent therewith, the employees first priority was to flee the room to a place of safety. “Employee Doe” was not under an obligation to close Plaintiff’s door or transport Plaintiff to safety, especially given the fact that Plaintiff was connected to an IV at the time. In opposition, Plaintiff’s counsel posits that the possibility of an active shooter is per se foreseeable because Defendant had devised the “Code Silver” action plan in preparation for such an incident. In reviewing these submissions, the Court is unpersuaded by Plaintiff’s position that the mere existence of an active shooter policy renders such an occurrence per se foreseeable, as such policies may simply reflect a general awareness of nationwide concern rather than the foreseeability of such an event occurring at a particular location. (See Pink v Rome Youth Hockey Ass’n, Inc., 28 NY3d 994, 995 [2016].) The Court declines to equate general awareness to foreseeability under these circumstances, lest it dissuade organizations from engaging in such preparedness. However, while the existence of the “Code Silver” active shooter policy does not make such an occurrence per se foreseeable, a triable issue of fact as to whether such occurrence was foreseeable is raised by having such a policy. Plaintiff’s counsel also offers an undated Action Guide from the Department of Homeland Security Cybersecurity & Infrastructure Security Agency (“CISA”) as an alternative action guide for the protection and safety of patients at hospitals and healthcare facilities during an active shooter event. These include securing patients and locking down critical areas, which counsel states are absent from Defendant’s “Code Silver” protocol. Plaintiff’s counsel’s reference to the CISA Action Guide is of little probative value, as there is no proof that counsel is qualified to offer his opinion on active shooter policies and does not even state whether it was in place on August 8, 2018. As set forth in George Kadash’s affidavit, Defendant’s “Code Silver” was consistent with federal industry standards, and “Employee Doe”‘s action of “bolting” from Plaintiff’s room upon hearing gun shots was in conformance with the first priority under Run, Hide, Fight to evacuate the immediate area and get as far away as possible to a safe location. However, under the specific factual circumstances presented in this case, the Court finds that factual issues exist regarding the sufficiency of Defendant’s “Code Silver” policy and whether its mandates were a proximate cause of Plaintiff’s fall and resulting injuries on August 8, 2018. Plaintiff’s Slip and Fall on Water on the Floor of his room “A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. ‘To meet its initial burden on the issue of…constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.’ A defendant cannot satisfy its initial burden as the movant merely by pointing to gaps in the plaintiff’s case” Johnson v Culinary Inst. of Am., 95 AD3d 1077, 1078 [2d Dept 2012][internal citations omitted]. Herein, Defendant does not offer any testimony as to when Plaintiff’s room was last cleaned or inspected so as to satisfy its initial burden in moving for summary judgment. Moreover, Defendant has not established that it did not spill the water Plaintiff slipped on in his room. Plaintiff’s reliance upon Defendant’s testimony at his deposition and GML §50-h hearing does not supplant its own initial burden of affirmatively stating that it did not create or have notice of the alleged hazardous condition. These deficiencies collectively establish that Defendant has failed to make a prima facie showing that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. Accordingly, the Court need not assess the sufficiency of Plaintiff’s opposition papers on this issue. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]. Based upon the foregoing determinations, it is ORDERED that Defendant’s motion for summary judgment is denied, as issue of fact exist regarding Defendant’s alleged creation or notice of the hazardous condition and its alleged proximate cause to the injuries Plaintiff sustained; and it is further ORDERED that this matter is referred to the Trial Assignment Part for further proceedings. The foregoing constitutes the Decision and Order of the Court. Dated: November 7, 2022
