New York Legal Update

Assumption of Risk Does Not Apply To Road Cyclist

When someone voluntarily engages in sporting events or athletic activities, the primary assumption of risk doctrine will bar a personal injury lawsuit to recover for injuries sustained from conduct or conditions which are inherent in that activity.  An interesting case involving assumption of risk and injuries sustained by a road cyclist was decided on May 19th by the Second Department  - Cotty v Town of Southampton, 2009 NY Slip Op 04020.

The plaintiff was a member of a bicycle club which engaged in long-distance rides.  On the day her injuries occurred, she was the last cyclist in a group of eight riders cycling on a public road during a 72-mile ride. She indicated in her deposition that the road was not smooth and had potholes. In fact, at the time, a construction company had replaced asphalt in a trench along the edge of the road so that a conduit for a water main could be installed.  Two layers of asphalt were to be laid to fill the trench to bring it level with the existing roadway.  However, at the time of the accident, only one layer of asphalt had been laid.  This left a lip approximately one inch deep, parallel to the length of the road where the existing road and the newly paved section met.  This lip was not marked in any way.

The plaintiff had previously ridden on that same road about 20 to 30 times, and as recently as two to four weeks before the accident.  She was aware of the construction on the road.  The roadway had no shoulder.  She was riding about one to two feet from the edge of the road, and approximately 1 to 1 1/2 wheel lengths behind the cyclist in front of her. They were riding at a speed of 17 to 18 miles per hour.

The bicyclists in the front of the pace line then began a "hopping" maneuver with their bicycles to avoid the "lip" in the road.  However, the rider in front of the plaintiff unsuccessfully attempted the maneuver, and fell in the path of the plaintiff's cycling.  The plaintiff thus swerved and slid into the road where she collided with an oncoming car.

The plaintiff sued the Town, the construction company, and the Suffolk County Water Authority which contracted for the work.  The defendants moved for summary judgment arguing the plaintiff had assumed the risks commonly associated with cycling.

The Second Department denied the defendants' motion allowing the plaintiff's action to proceed to trial.The Court rejected a broad application of the assumption of risk doctrine to all forms of leisure activities.  It indicated that the doctrine was not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.  The Court then contrasted previous cases in which the cycling took place on paved roads or paths with cases involving mountain biking on unpaved trails.  The Court noted that assumption of risk was applied in the mountain biking case, but not in the cases involving paved surfaces.  The difference of course was that in mountain biking it is reasonably foreseeable that the unpaved nature of the trails is exactly the appeal and challenge of the activity, and thus, participants assume risks associated with riding on rough surfaces.  But this is, according to the Court, was not the case with cycling on paved surfaces. 

The Court also rejected arguments by the defendants that the plaintiff was cycling too closely.

The Court concluded stating:

In sum, it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor.  Adopting such a rule could have the arbitrary effect of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities.  We decline to construe the doctrine of primary assumption of risk so expansively.

Commentary:

I think the Court missed a critical consideration in its analysis.  The Court focused on the risk presented to the plaintiff by the lip in the roadway, or generally the condition of the roadway.  By that was not the only, or, in my belief, the main risk that was present in the circumstances and which precipitated the plaintiff's injuries. The plaintiff was cycling in a pack of 8 riders over long distance and at a relatively high rate of speed.  And most crucially, the plaintiff was 1 to 1 1/2 wheel lengths behind the cyclist in front of her.  Although not explicitly indicated in the court's opinion, it is apparent that the cyclists were riding in what is known in road cycling as a "pace line."  This is a formation in which the cyclists follow each other in close formation so as to "draft" off each other to reduce wind drag, and thus, save energy.  This is a technique  which requires a considerable degree of skill, constant attention, quick reflexes, and a great deal of confidence and trust in your fellow riders.  And it is one of the primary pleasures and challenges of road cycling.

The assumption of risk doctrine applies to both the conditions inherent in a particular activity as well as the conduct of the participants.  By focusing merely on the lip in the road, the court seems to have neglected the particular way in which the cyclists were riding.  The cyclists did not have to be riding so close to each other.  They did not have to be riding at such a high rate of speed (particularly on a road undergoing construction).  And the riders did not have to attempt the "hopping" maneuver over the lip in the road.  It was in fact the failure of the rider in front of the plaintiff to execute the maneuver which precipitated the plaintiff injuries.  There is in fact nothing in the Court's opinion which indicates that the rider in front of the plaintiff failed to execute the maneuver because of the lip.  The Court in its decision stated that the issue of whether the plaintiff was following too closely to the rider in front of her was an issue of comparative fault, which should be decided by a trier of fact.  I believe this is incorrect.  It was not merely the plaintiff who was following too closely.  It appears that it was the whole group who were riding in this manner.  Thus each individual member of the group had to have a great deal of trust or confidence that the rider in front of them did not make any sudden, unexpected, or risky maneuvers which could put the whole group at risk.  I submit that this was the risk that each individual member of the group assumed. 

It may be that the defendants did not sufficiently develop the record, or advance this particular argument to the Court.  Nevertheless, I believe the Court could have taken a closer look at the manner in which the cyclists chose to ride.

Third Department Limits Assumption of Risk Doctrine

The primary assumption of risk doctrine provides that those who engage in sporting or recreational activities consent to the commonly appreciated risks which are inherent in and arise out of the nature of that sport or activity.  It thus acts as a bar to a defendant's liability based on that defendant's alleged negligence.

Deciding precisely which activities the assumption of risk doctrine applies to sometimes presents problems for the courts.  On March 5th, the Third Department surprisingly failed to allow the doctrine to be applied in a situation which would seem to call for its natural application in the case of Trupia v Lake George Cent. School Dist., 2009 NY Slip Op 01571.

In that case, the plaintiff was participating in a summer school program administered by the defendant School District.  During a break in classes, he attempted to slide down a banister in stairway.  In doing so, he fell and sustained a skull fracture and brain injury.

The plaintiff's parent commenced an action against the School District, and the School District sought to amend their answer to include the affirmative defense of primary assumption of risk. 

The Third Department found that the proposed defense was "devoid of merit," as a matter of law and thus did not allow the School District to assert the defense.  The Court noted that both the Second and Fourth Departments have expanded application of primary assumption of risk beyond sporting and recreational activities.  Indeed, the Court even noted that Fourth Department even applied it in a situation similar to the case before it [infant plaintiff injured while attempting to slide down handrail (Lamandia-Cochi v Tulloch, 305 AD2d 1062 [4th Dept 2003]).  Nevertheless, the Court refused to allow the doctrine to be asserted by simply stating:

Extensive and unrestricted application of the doctrine of primary assumption of risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff's own negligence barred recovery from the defendant (quoting Pelzer v Transel El. & Elec. Inc., 41 AD2d 379 [1st Dept. 2007]).

Commentary:

If you ask me, we need more "throwbacks" in the area of tort law.  If there any situations where assumption of risk should apply, it should be in those situations in which, such as was the case here, the plaintiff is engaging in inherently risky, dangerous,  or even stupid behavior.  These are the kinds of cases which simply drive the general public crazy, with good reason.  Why should the person who wholly brings it upon himself to cause himself injury be allowed to seek recovery?  The pure comparative fault standard used in New York is simply based on the faulty assumption that it always must be considered whether someone else was at fault.  No.  Sometimes plaintiffs bring their own injuries upon themselves by engaging in risky behavior, and juries should be allowed to consider whether that is the case by considering the assumption of risk doctrine.  CPLR 1411 should be modified.

Secondhand Smoke Action Proceeds

When making motions for summary judgment it is critical to submit evidence in admissible form. The City of New York may have just made a costly mistake by forgetting this fundamental of motion practice. In the case of Marquez v City of New York, 2008 NY Slip Op 01059, the plaintiff brought a personal injury action against the City alleging that the secondhand smoke he inhaled while incarcerated in City jails between August 1998 and January 2001 caused his bladder cancer. The City moved for summary judgment arguing that the scientific community has not accepted the proposition that a causal connection exists between bladder cancer and secondhand smoke.  But in doing so, the City only submitted an affirmation by counsel and an expert's unsworn statement. Thus, the City's summary judgment motion was denied. Who can tell what will happen now when the case goes before a jury even if the City submits proof that there is no scientific evidence of a connection between secondhand smoke and bladder cancer.

Nurse Exposed To HIV Virus May Seek Damages For Emotional Distress Beyond Six Months

The New York courts have previously determined that nurses who have been negligently exposed to the HIV virus through a scientifically accepted method of transmission of the virus may recover damages for emotional distress because of the fear of developing AIDS. But one appellate court has limited the time period for which one can recover such damages to 6 months after the exposure because the scientific evidence suggests that 95% of HIV-positive individuals will test positive within six months after exposure. Thus, an individual exposed to the virus can be reasonably assured that he or she is free of infection if tests conducted six months after the exposure are negative (see, Brown v New York City Health and Hosps. Corp., 225 AD2d 36 [2d Dept 1996]). 

However, the Court of Appeals relaxed this time frame yesterday in Ornstein v New York City Health & Hosps. Corp., 2008 NY Slip Op 01027. The facts in that case were as follows. On September 1, 2000, while working as a nurse on a per diem basis at Bellevue Hospital in Manhattan, plaintiff and a nurse's aide began bathing a critically-ill patient suffering from AIDS. As she was turning the patient, plaintiff was stuck in the thumb by a hypodermic needle that had been left in the patient's bed by an intern. Because the needle contained blood, plaintiff was immediately treated with anti-viral medications for potential HIV exposure. She remained on these medications for two months, suffering side effects that continued for several months thereafter including nausea and neuropathy in her hands and feet. Plaintiff also promptly commenced a regimen of periodic HIV testing. The plaintiff was tested every three months for a period of two years following her exposure but consistently tested negative for infection with HIV. She commenced an action against the new York City Health and Hospitals Corporation alleging negligent infliction of emotional distress.

Relying on Brown, the defendants argued that plaintiff should be restricted to presenting the jury proof that she experienced mental anguish for only a period of six months following the needle-stick incident.

However, the Court of Appeals rejected a bright line 6 month rule. First, the Court stated that the 6 month rule did not make sense in this case because the plaintiff was never advised that her risk of testing positive in the future would dramatically decrease, if not virtually cease, once she tested negative at the six-month juncture. She was also unaware of this fact from her own medical training. In fact, the plaintiff testified that her fear of contracting HIV from the needle-stick incident continued until she tested negative in June 2002, about a year-and-a-half after exposure. In addition, the Court stated that the 6 month rule established by Brown did not account for the fact that a plaintiff exposed to HIV may suffer injuries that are distinct from the fear of contracting the virus. For instance, the plaintiff offered medical proof that she continued to suffer from post-traumatic stress disorder even after her concern that she had contracted the virus was alleviated. Plaintiff testified that she lost income because she was never able to return to per diem hospital work after the incident due to her fear of similar future exposure incidents. In addition, while her HIV status was uncertain, she was unable to engage in direct patient care but had to confine her duties to office work. She stated that, after it was determined that she had not contracted the virus, she continued to suffer from post-traumatic stress disorder and that this condition was a contributing factor in her decision to permanently change the nature of her employment from direct patient care to teaching. The Court found that if this evidence was believed, a rational jury could find that plaintiff's psychiatric condition and resulting loss of income were directly related to the exposure incident, warranting monetary recovery. The Court noted that the defendant was still free to introduce scientific and medical evidence at trial that the plaintiff's fear of AIDS was unreasonable at some point, but it was simply unwilling to adopt the bright line 6 month rule. Thus, the Court ordered a new trial on damages.

Rear End Collisions Into Double Parked Cars And The Vexing Problem Of Proximate Cause

Double parked cars in Manhattan - it is as common as grass in the suburbs. Taxicabs picking up fares, buses loading and unloading passengers, and everyone else giving up the hunt for the one existing parking space and putting on the hazards for the few minutes it takes to run in a buy a lottery ticket. Everyone does it in Manhattan and it is basically unavoidable. But given the First Department's decision in White v Diaz, 2008 NY Slip Op 00433 last week you may want to strongly reconsider double parking; the Court held that if you double park and someone else strikes your vehicle from the rear, you may have contributed to the accident. 

The car accident in question occurred shortly before 6:00 a.m., when an Access-a-Ride van double-parked on First Avenue near East 94th Street in Manhattan to pick up the plaintiff. It was struck in the rear by a van driven by defendant Diaz and owned by defendant Agramonte. Diaz admitted to falling asleep behind the wheel. Plaintiff was a passenger who had just entered the Access-a-Ride van, which was driven by defendant Nunez and owned by defendant Atlantic Paratransit (the Nunez defendants). Defendant Nunez testified that he double parked in the first lane for moving traffic on First Avenue in front of plaintiff's building to wait for her, because there were no available spots at the curb and he did not see the entrance to the building's parking lot. He said he waited approximately five minutes with his hazard lights on before plaintiff arrived. After the plaintiff got in, but before she was able to put on her seat belt, the accident occurred.

Following discovery, the Nunez defendants moved for summary judgment, arguing that since their van was struck in the rear while stopped, the accident was proximately caused solely by the negligence of Diaz, and their van's presence in the traveling lane merely furnished the condition or occasion for the accident.

After analyzing a number of similar rear end collisions into stopped vehicles, the Court denied the defendant's motion for summary judgment. The Court stated that, "where there is any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of law, the better course is to leave the point for the jury to decide." The Court concluded that a reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double parking for five minutes on a busy Manhattan street. The Court stated that the precise manner of the accident need not be foreseeable. Rather, it was enough that it was foreseeable that the flow of traffic, being impeded by the double-parked van, that an inattentive, careless or distracted driver might not stop in time to avoid the van. The Court stated that a reasonable jury might conclude that if the Nunez van had pulled over to the curb or into a nearby parking lot to wait, it would not have been in the path of the Diaz van and plaintiff would not have been injured.

A few personal observations: After this case, I can't envision any instance in which a stopped double parked vehicle can be found not to have contributed to a rear end collision. It was undisputed that the driver of the other vehicle fell asleep while driving. If this can not be seen as the entire proximate cause I don't know what can. In addition, it seems to me to be irrelevant how long the Access-a-Ride van was double parked. The accident occurred instantaneously and thus it was irrelevant how long it was double parked. In fact, the longer it was doubled parked without an accident occurring would seem to suggest that the double parking could not have contributed to the accident. Think of the number of vehicles which passed the double parked Access-a-Ride van during the 4 minutes and 59 seconds it was double parked and did not strike it in the rear. When determining proximate cause isn't it appropriate to calculate, or at least approximate, how many potential accidents did not occur? Finally, it now becomes perilous for all taxicabs and buses in the City. All will have to foresee being struck in the rear while picking up passengers.   

Parents, Little League, And Assumption Of Risk

Parents Beware - be careful while attending your next little league game or practice. We all know that those participating in athletic activities assume the risks that those activities entail. But what about spectators or bystanders to athletic events? To what extent do they assume the risks of athletic events. On January 8th the First Department decided a case which parents may want to take note of - Roberts v Boys & Girls Republic, Inc., 2008 NY Slip Op 00073.

The plaintiff-mother was watching her son's little league team during a scrimmage game. She was injured when she strayed into the path of a bat being swung by another player taking a practice swing along the off-field side of a chain-link fence running parallel and adjacent to the field's third-base sideline. Had the accident not occurred, the player, upon the completion of his practice swings, would have passed through an opening in the fence near home plate to take his turn at bat. The Court found that the mother assumed the risk of her injuries and thus dismissed her action on a summary judgment motion. The Court found that the risk of being struck by a swung bat was perfectly obvious. It found that the area where the bats were being swung was "logically situated" to the game taking place on the field. It was marked with equipment, and was in continuous use by players for about the hour and a half that the plaintiff-mother was at the game. The Court stated that the area in question "was immediately adjacent to the field, discrete, obvious and avoidable by any reasonably wary spectator or bystander."

The Court noted that the plaintiff-mother had testified that she observed numerous children along the fence area swinging bats when she entered the ball field, and again observed such activity from the bleachers as she watched her son practice. In addition, shortly before the accident, when plaintiff returned from the bleachers to the area behind home plate, she passed by a group of players holding bats in the same area. Finally, there was testimony that the player whose bat hit the plaintiff began his fateful swing when plaintiff was still some 8 to 10 feet away. Thus, the Court concluded that the sideline on-deck area was open and obvious to the plaintiff and "as safe as it appeared to be."

The Court stated if athletic and recreational activities are to persist, "there must be tolerated a disparity between the level of safety that might be optimally or even reasonably achieved and that which the law mandates."

Wrongful Death Award Made Directly To Grandchildren Invalid

A cause of action to recover damages for wrongful death action is a property right belonging to the distributees of the decedent. If someone dies with both surviving children and grandchildren can a wrongful death award be made directly to the decedent's grandchildren? No, answered the Second Department Tuesday in Carter v New York City Health & Hosps. Corp., 2008 NY Slip Op 00216.

In that case the decedent was survived by 9 children and 59 grandchildren. In a wrongful death action, a jury made an award of $96,000 to seven of the decedent's grandchildren, but nothing to the decedent's children. Citing EPTL 4-1.1[a][3]), the Court stated that since the decedent was survived by children and no spouse, all of the decedent's property should pass to the children, by representation. And since all nine of the decedent's children were still alive at the time of the decedent's death, none of the decedent's grandchildren qualified as a distributee. The Court thus vacated the award to the grandchildren. It did however, order a new trial on damages because given the charge to the jury, the damages improperly awarded to the grandchildren might well have been intended as a lawful award to the proper distributees.   

School Not Liable For Asthma Death

When a child dies it is understandable that a parent would seek to impose liability on anyone who had any responsibility to care for the child. For school districts, just how far should the duty to care for a child go, and when does such a duty end? An interesting case from the Second Department last Tuesday - Williams v Hempstead School Dist., 2007 NY Slip Op 09582 - suggests that as soon as the child leaves school grounds any duty ends.

The child was a 5 year kindergarten student of the defendant school district. The child had asthma, which was know by the child's teacher and school nurse. At the beginning of the school year, the child's mother gave the nurse asthma medication, an inhaler, and an authorization and directive by the child's pediatrician for their use.

One morning, the child's teacher and a teacher's aide noticed that he was coughing. Thus, the teacher's aide took him to the school nurse, arriving at the nurse's office at approximately 10:40 A.M. The nurse gave the child his inhaler medication and checked his breathing. The nurse noted he was breathing, alert, and in no distress. She then contacted the child's mother. The nurse then walked the child back to his classroom (he was not coughing at this point) and asked the teacher for his homework. The mother arrived to pick up her child at about 11:40 A.M. When she did so, the child was breathing and able to walk. After indicating to the nurse that she was taking her child to his pediatrician, which the nurse had suggested, the mother got in her car with the child and left the school. While in the car the child appeared to be hot and ill, and the mother stopped twice to attend to him. Thereafter, the mother decided to drive directly home, which was closer than the pediatrician, to call for help. Upon reaching her home, the mother left the child in the car, called 911, and then moved him into the house where, upon their arrival, emergency medical personnel treated him before taking him by ambulance to the hospital. The child was pronounced dead at about 12:56 P.M. at the emergency room.

In her wrongful death action the mother alleged negligent hiring of the nurse and negligence predicated on the professional malpractice of the nurse. The defendants - the nurse and the School District - moved for summary judgment dismissing the complaint.

While the Supreme Court denied the motion, the Second Department reversed and dismissed the complaint. The Second Department stated that since child had been released to the plaintiff mother who assumed complete custody and control of him prior to the time of his death, no duty existed on the part of the defendants at the time of the child's death. In their own word, the Court stated:

Having removed [the child] from the geographic boundaries of the District, as well as from the actual control of the defendants, and having decided in response to his physical distress to take [the child] home (where, according to hospital emergency room records, the plaintiff administered medication to him), the plaintiff cannot establish, as matter of law, that a duty existed which could give rise to any liability by the defendants.

The Cable Guy and Labor Law § 240(1)

Does the work of the cable guy or telephone repairman fall within the protection of Law Law § 240(1)? A case from the First Department last week - Rhodes-Evans v 111 Chelsea LLC., 2007 NY Slip Op 07540 suggests that for many instances it does not.

The plaintiff was a Verizon field technician who was assigned to splice fiber optic cable in an existing cable box located in the parking garage of the defendant's building to provide new digital telephone service to a tenant in the building. The cable box was 10 to 15 feet above ground level. The floor of the garage was littered with construction and other debris, and the plaintiff had to clear an area to place a ladder that she used to reach the cable box. Unable to move a large piece of sheet metal on the floor, the plaintiff placed the ladder so that at least two of its legs were on the metal. Plaintiff stood on the second rung from the top of the ladder looking for the splice on which she was to work. The box in which the splice was encased was to her right, thus necessitating that she turn the upper part of her body in that direction. As she searched for the splice, the ladder started going backwards. To avoid falling, plaintiff twisted her body and grabbed onto the cables and used her body to pull the ladder back into position. In so doing, she injured her back. The ladder never actually fell. Nor did plaintiff.

The building owner moved for summary judgment, inter alia, on the grounds that the plaintiff was not entitled to any relief under Labor Law § 240(1) since she was not engaged in construction-related activity. In order to be entitled to the statutory protection of Labor Law § 240(1), a worker must establish that he r she sustained injuries while engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240[1]). The Supreme Court had denied the owner's motion finding that the work in which plaintiff was engaged constituted an alteration.

However, the First Department reversed and granted the owner's motion. The Court stated that in order to constitute an alteration, the statute required making a significant physical change to the configuration or composition of the building or structure. And it stated that there was nothing in this record to suggest that splicing a fiber optic cable located in a box was making a significant physical change to the garage or building. 

If the plaintiff had been installing a new system, perhaps by installing a new box, and not splicing wires, perhaps the results would have been different. The plaintiff had attempted to make this argument, but the Court found that record did not support such a claim.

Liability Of Landowners When The Lights Go Out

What is the duty of a landowner to provide illumination when there is a blackout? The Second Department issued a somewhat confusing decision on this question last week in Solan v Great Neck Union Free School Dist., 2007 NY Slip Op 06861.

In that case, the plaintiff arrived at the parking lot of the Great Neck North High School minutes after a power failure had extinguished the lights illuminating the parking lot. Although the parking lot was in total darkness, the plaintiff observed some lights inside the school. The school board meeting which the plaintiff intended to attend had been moved to an auditorium which had lights powered by a generator. In attempting to cross the parking lot to enter the school, the plaintiff tripped and fell over a cement parking space divider, which she was unable to see because of the darkness, sustaining personal injuries.

In her action against the School, the plaintiff claimed that the School had a duty to supply backup power to the parking lot lights to ensure continued illumination of the lot during a power outage. A jury returned a verdict in favor of the plaintiff finding the School 90% at fault and the plaintiff 10% at fault. However, the trial court granted the school's verdict to set aside the verdict and dismissed the complaint.

The Second Department affirmed. It stated:

A landowner's duty to maintain its property in a reasonably safe condition in view of all the circumstances, including providing a safe means of ingress and egress, does not include a duty to have an uninterrupted power source for parking lot lights in the event of a power outage.

However, in the next sentence the Court went on to say:

The power outage did not relieve the defendant of its duty to address the dangerous condition created by the loss of power when the otherwise open and obvious cement divider was obscured from view by darkness.

I'm not sure how these two statements are consistent (unless the Court meant that the School was required to cure the dangerous condition by moving the cement dividers. But either the School had a duty to provide illumination or it didn't). In any event, the Court went on to hold that there was no valid line of reasoning nor permissible inferences to be drawn from the evidence which could lead a rational person to the conclusion that the School had a reasonable time to address the darkness in the parking lot in the matter of minutes between the power outage and the plaintiff's fall.

So presumably the School did have a duty to provide illumination to the parking lot but only after some period of time to address the issue. 

Of course the irony is that if the School was required to provide illumination to the parking lot at some point, this would most likely involve the use of portable generators along with their power cords strewn across the parking lot. Would this not increase the risk of tripping accidents significantly? Is it wise to require a duty that increases the risk of injury? Its a Blackout. How did we exist before electricity? What is more onerous - requiring the School to put up portable generators, or requiring pedestrians to walk a little more carefully, or perhaps carry a flashlight in their cars?  Thus, while I agree with the Court's result, I think it would have been better if the Court had just stuck with its statement that a landowner does not have a duty to provide an uninterrupted power source for parking lot lights in the event of a power outage.