New York Civil Law

Appellate Division, Second Department Affirms Rejection of Creative Rear-End Defense

In Carrington-White v. Malvey, the Appellate Division, Second Department recently affirmed  the plaintiff's summary judgment motion on liability.  The matter concerned a rear-end accident, where the defendant struck a cement barrier, causing her vehicle to strike the plaintiff's vehicle.  In opposition to the plaintiff's summary judgment on liability, the defendant contended that she must have been struck from behind by an unidentified vehicle immediately before striking the plaintiff.  The Second Department agreed with the trial court that the defendant's contention was pure speculation and failed to raise a triable issue of fact.

New York Court of Appeals Addresses Tricky Tort Issues

Chain-reaction motor-vehicle accidents or multiple related motor-vehicle accidents raise tricky tort questions regarding proximate cause.  The New York Court of Appeals addressed this type of tricky question last week in Tutraini v. County of Suffolk.

In that case, the plaintiff was behind a County of Suffolk police officer (the defendant) on a highway.  The police officer defendant suddenly decelerated from approximately 40 mile per hour to 1 to 2 miles per hour.  The plaintiff aggressively applied the brakes to her motor-vehicle and was able to stop without hitting the defendant police officer.  However, the plaintiff was rear-ended by another defendant seconds later.

A jury found that the defendant officer's reckless conduct and the rear-ending defendant's negligence were each a substantial factor in causing plaintiff’s injuries and apportioned fault at 50% each. The  Appellate Division reversed the judgment entered upon the jury’s verdict, holding, as a matter of law, that the defendant officer's conduct was not a proximate cause of the accident because the plaintiff was able to come to a complete stop without hitting the defendant's vehicle.

The Court of Appeals disagreed with the Appellate Division and held that the jury could have rationally found that the officer's conduct was a substantial cause of the collision between the plaintiff and the other defendant even though there was no contact between plaintiff's vehicle and the defendant officer's vehicle.  The Court held that the jury could have rationally found that that the officer's conduct " 'set into motion an eminently foreseeable chain of events that resulted in [the] collision' " between the vehicles driven by the plaintiff and the other defendant.

Here's an article in Newsday about the decision.

 

 

 

 

New York Court of Appeals Addresses Spectator's Assumption of Risk

In a short sua sponte merits decision, the New York Court of Appeals in Roberts v. Boys & Girls Republic, Inc. upheld that the plaintiff assumed the risk that resulted in her injury -- being hit in the face by a baseball bat while a spectator at a little league baseball game.  Here are the facts as described by Justice Kavanagh in his dissent below; you decide whether the plaintiff assumed the risk of her injury.

The Plaintiff was at the park to watch her son's little league practice. When the accident occurred, she was standing on a path that went from the entrance of the park to the spectator bleachers adjacent to baseball "Field Six. "  Along the third base side of Field Six ran a chainlink fence that separated the bleachers from the field of play, and which had an opening that allowed entry onto the field of play. Field Six lay in front of the bleachers; behind the bleachers was a separate, grassy area where the plaintiff's son's little league team was practicing. During the practice, the plaintiff sat on the bleachers. When the practice concluded, the plaintiff met her son with his team and coach on the path on the spectator's side of the opening in the fence that led to Field Six. Another team was on Field Six at this time playing a scrimmage game. After speaking briefly to her son and Coach Alameda, the plaintiff proceeded to walk toward the bleachers. Unbeknownst to the plaintiff, as she approached the bleachers she walked near an area that had been unofficially designated as an "on-deck" circle, where one of the players involved in the scrimmage on the field was standing with an aluminum bat. The player took a warm-up swing with the bat while standing off to the side of the plaintiff and struck her on the right side of her face, causing injuries, including a concussion, fractures to the upper and lower jaw and loss of teeth.

Malfunctioning Traffic Signal and Proximate Cause

What happens when a person is injured in a motor-vehicle concerning a malfunctioning traffic signal?  See Munoz v. City of New York, which held that the malfunctioning traffic signal was not the proximate cause for the plaintiff's accident with another motor vehicle.

Tenuous Case of Respondeat Superior?

The decision in Campbell v. Munoz concerns an interesting fact pattern on whether an employee was acting within the scope of his employment when his actions allegedly caused the injury of the plaintiff.
The facts are odd.  The plaintiff injured herself while running away from a falling tree originating in her neighbor's yard.  Her neighbor's relative, the employee, was removing a tree free-of-charge.  The defendant Reliable Tree Service, Inc. allowed the employee to use its truck and equipment to perform the work.  Reliable also encourage the employee to engage two other crew members with the tree removal.

Nassau County, Supreme Court (Feinman, J.), concluded that an issue of fact existed as to whether Reliable's employees were engaged in the business of Reliable or acting within the express or implied authority of Reliable.

Appellate Division, First Department Rejects Negligent Design Theory Regarding Cigarettes

The Appellate Division, First Department's recent decision in Rose v. Brown & Williamson Tobacco Corp. is an important for New York's products liability jurisprudence.  The plaintiffs' contention was that, during the years in question, the relevant tobacco companies should have sold only "light" cigarettes (which contain relatively low levels of cancer-causing tar and addictive nicotine) and should not have sold regular cigarettes of the kind Ms. Rose smoked (which contain significantly higher levels of the aforementioned harmful substances).  The plaintiff's theory was grounded on a negligent design cause of action.

The First Department analyzes the all-important feasible alternative product design prong of any design defect allegation.  Justice Nardelli and Catterson dissented and, thus, the Court of Appeals will have a crack at the case. 

NYCL will keep you informed of developments in the case.

Supreme Court, Queens County Orders In Camera Inspection of Driver's Cell Phone Records in Motor Vehicle Accident

As many lecturers will tell you, the proliferation of electronically stored information makes its impact on litigation inevitable.  The recent case of Morano v. Slattery Skanska, Inc. out of Supreme Court, Queens County is a good example.

The injured plaintiff was driving a motorcycle and saw a motor vehicle stopped on the side of the road.  He thought the person was broken down and calling for help on her cell phone.  He stated in an affidavit in support of a subpoena for the driver's cell phone records that he saw the driver "with an object in her hand held to her head."  The defendant moved to quash the subpoena for the records, citing privacy issues.

Justice Ritholtz denied the motion to quash the subpoena, ordering an in camera review to determine what calls, if any, should be discoverable by the accident victim.  Notably, Justice Ritholtz observed that the justification for allowing the injured plaintiff to even gain the benefit of obtaining any part of the cell phone records was his statement that he saw the defendant holding something to her head that looked like a cell phone just before the accident happened.  Justice Ritholtz indicated in the decision that a party would not be able to discover such records without some indication that a cell phone was a possible factor in the accident.

New York Court of Appeals Addresses Duty of Care Issue Regarding Breach of Contract

Can a mechanic that performed a negligent inspection on an automobile be liable to a third-party who gets into an accident with the automobile that the mechanic inspected? (see prior post)  The New York Court of Appeals in Stiver v. Good & Fair Carting and Moving, Inc. that it would not impose such a duty of care on inspection stations, observing that it was unwilling to force inspection stations to insure against risks "the amount of which they may not know and cannot control, and as to which contractual limitations of liability [might] be ineffective."

This decision provides a good example of the application of the three exceptions to the generally held principle that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party."  It will serve you well to read Espinal v. Melville Snow Contrs. and Church v Callanan Indus. as background for this case.

New York Court of Appeals Recently Addresses Foreseeability Issue in Tort Action

The New York Court of Appeals' recent decision Corsino v.  New York City Trans. Auth. is not a groundbreaking one, but a nice study in foreseeability  (see Appellate Division, First Department decision here).  The plaintiff was seriously injured when she tripped over a cord lying on the platform as she exited a New York City subway station.  Defendant Transit Authority was in the process of renovating this station: Defendant contractor CAB Associates had subcontracted with Defendant Sheldon Electric for electrical work, which in turn subcontracted with Defendant Villafane for the installation of telephone lines. Villafane had installed a conduit, and the cord upon which the injured plaintiff tripped was a drag line that had been inside the conduit. 

A drag line is used by contractors to pull wire through conduits to the location of an installation. In this case, the drag line was hanging from a conduit just above a telephone back plate located in a column on the platform, awaiting the installation of a public telephone. It is assumed here that the drag line had been vandalized in such a manner that it was pulled from the conduit on the column, and left strewn on the floor.

The Court of Appeals agreed with the dissenting Justices below that a question of fact existed as to whether vandalism was foreseeable and could cause such a hazard and, if so, whether Defendants Transit Authority, Sheldon and CAB Assocs. exercised supervised or safety control over Villafane.  The Court and the dissenting Justices hinged the decision on the plaintiff's expert.  The expert observed that vandalism is a known danger when work is being performed on a New York City subway platform, and asserted that the vandalism that apparently occurred could have been avoided had the subcontractor installed inexpensive cover plates over the conduit and/or secured the drag line inside the conduit "at a location out of reach of any vandals and in manner that it would not come loose with the vibrations of trains entering and exiting the station."  He also observed that the amount of excess drag line should have been reduced so that it could not reach the floor and cause a tripping hazard if it came loose or became unsecured.

New York Court of Appeals Examines Pattern Jury Instructions in Common Carrier Context

In Boyd v. Manhattan & Bronx Surface Transit Operating Auth., the New York Court of Appeals last week determined that the jury charge -- especially the first sentence of Pattern Jury Instruction 2:164 -- might have been misconstrued as placing a higher duty of care on a defendant than is now warranted under New York tort jurisprudence.  In Boyd, the plaintiff was injured on a city bus when she attempted to hold onto a strap that slipped out of its holder.   At trial, the defendants asked the court to charge the jury on actual and constructive notice.   The court was asked to charge that, even if the strap was defective, defendants were not negligent if they did not know, and would not by the use of reasonable care have known, of the defect.

Instead, the trial court charged the jury pursuant to PJI 2:164, which began:

A common carrier such as a bus company is required to know, and is charged with knowing the danger of its passengers from faulty maintenance of its vehicle and equipment, and is also charged with knowing how to avoid
such dangers.

The Court of Appeals observed that the charge the trial court gave was not incorrect, but the statement that "a bus company is required to know, and is charged with knowing the danger of its passengers from faulty maintenance of its vehicle and equipment" is open to misinterpretation.  The Court held that in cases like Boyd courts should give an instruction on actual and constructive notice.

A read of the decision in Bethel v New York City Tr. Auth. is good background for a common carrier's duty of care in New York.