New York Civil Law

New York State Governor Kathy Hochul Vetoes "Grieving Families Act" - Proposed Amendment to New York's Wrongful-Death Statute

Gerber Ciano Kelly Brady LLC's Brendan Fitzpatrick reports on the recent development on the proposed "Grieving Families Act" in New York:

New York’s Governor Kathy Hochul vetoed the “Grieving Families Act” (Senate Bill S74A), which would have amended New York’s wrongful-death statute. According to the Governor’s veto, the proposed bill would have “substantially” changed the nature of wrongful death claims in New York by expanding (1) the persons entitled to seek damages, “distributees,” to “surviving close family members” as determined by a jury; and (2) the categories of recoverable damages because damages would no longer be limited to pecuniary loss and would include losses for grief, anguish, loss of love, society, protection, comfort, and consortium, loss of guidance and counsel. The bill would have also extended the statute of limitations for wrongful-death claims from two years after the decedent's death to three years and six months.

Governor Hochul stated in the veto that while the bill is “well-intentioned, [it] represents an extraordinary departure from New York’s wrongful death jurisprudence and may result in significant unintended consequences.” The Governor identified the “indefinite class of beneficiaries” and the “broad and perhaps overlapping, categories of damages” that would have caused confusion. Governor Hochul recognized the potential for confusion because the bill applied to pending cases, possibly resulting in “claimants and courts” being “forced to grapple with new competing claims asserted by ‘close family members’ as well as protracted discovery and increased litigation costs, potentially upending cases far along the judicial process.” The Governor acknowledged that the bill “would increase already-high insurance burdens on families and small businesses and strain already-distressed healthcare workers and institutions. The increased costs would be particularly challenging for struggling hospitals in underserved communities.”

The Governor noted that the bill passed “without a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the State’s complex health care system.”  While the Governor expressed support for the intent of the bill, she cautioned that there needed to be more investigation into the potential impact on the State.

We fully expect the New York Legislature to re-visit this statute. What remains to be seen is whether the Legislature will pass a version of the statute that includes some of the changes requested by the Governor to amend New York’s existing, 170-year-old, wrongful-death statute.  

Brendan is the chair of Gerber Ciano Kelly Brady LLP's Appellate Advocacy Practice Group.

Photo credit: KC Kratt

The New York Court of Appeals' recent memorandum decision in Barry v Lee, on its face, is cryptic and indicates a summary-judgment, burden shifting analysis.¹ The case concerns an interesting theory in the medical malpractice context -- i.e., whether rendering a certain course of treatment could have increased the decedent's chances of survival.

The underlying Appellate Division, First Department's opinion sets out the facts and arguments at issue in Barry. The treatment at issue concerned administering tissue plasminogen activator (tPA), which can dissolve clots and open arteries in 10-15 minutes. The upside of tPA is that it is a fast-acting "clot buster" for patients suffering strokes or embolisms. The downside is that tPA might not work and could lead to uncontrollable bleeding and death. To further complicate the issue, there is a six-hour window within which to administer tPA following the appearance of symptoms. 

Hospitals have protocols for tPA use. Some protocols are to not use tPA under any circumstance. The hospital in Barry v Lee allowed for the use of tPA, and there was an inference from defendant Dr. Lee's testimony that it was not his practice to administer tPA under any circumstances concerning a pulmonary embolism.

The defendant doctor in Barry v Lee performed a differential diagnosis of the decedent upon her admission to defendant Bronx-Lebanon Hospital Center and determined that she was suffering from a pulmonary embolism. Despite the diagnosis, the doctor and staff did not administer tPA until after waiting hours for the results of blood tests and an angiogram to confirm the diagnosis. Part of the doctor's consideration of not administering tPA was that the decedent recently gave birth and reported postpartum bleeding.

After approximately four hours post admission, the decedent's condition severely worsened, prompting medical staff to administer tPA just two minutes before she went into cardiac arrest. Despite the treatment, the decedent unfortunately died from the embolism. 

The appeal at issue presents itself in a summary-judgment context in a medical malpractice case. The motion concerned a "battle of the experts," and the First Department determined that the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law because their expert did not address the proposition that prompt administration of tPA would have increased decedent's chances of survival. The Majority also noted that, even assuming the defendants met their burden, the plaintiff through her expert raised a triable issue of fact on both negligence (a departure from the standard of care) and causation elements. Thus, the First Department reversed the Supreme Court's grant of the defendant's summary judgment motion dismissing the complaint. 

Justice Singh, with Justice Tom concurring, dissented concluding the defendants met their burden, and that the plaintiff failed to raise a material issue of fact on causation because her expert failed to explicitly state that the departures she highlights proximately caused decedent's death, and that decedent would have had a substantial probability of survival had a thrombolytic drug been administered.

In its memorandum decision, Judges Rivera, Fahey, Stein, Wilson, and Feinman concurred with the First Department's holding that the plaintiff rebutted the defendants' prima facie showing and raised a triable issue of fact. Chief Judge DiFiore and Judge Garcia dissented for the reasons stated in Justice Singh's dissenting opinion.

¹ The Court of Appeals addressed the appeal on the sua sponte merits track. The SSM track decides the appeal on the parties' submissions only, and generally renders a short memorandum decision. Therefore, my characterization of the memorandum as "cryptic" comments on the nature of decisions resulting from the SSM track and not on any ulterior motive by the Court. (see 22 NYCRR 500.11).

(see Appellants' Brief Download Appellant's Brief)

(see Respondent's Brief Download Respondent's Brief)

Defamation - New York Court of Appeals' Addresses Long-Arm Jurisdiction Within Context of Defamation Suit

SPCA of Upstate N.Y., Inc. v. American Working Collie Assn. (Motion for leave granted on Dec. 16, 2010) 74 A.D.3d 1464 (3d Dep’t 2010)

 This appeal addresses the almost entirely subjective issue of long-arm jurisdiction in a defamation action.  New York courts construe long-arm category “transacts any business within the state” under CPLR 302(a)(1) more narrowly in defamation cases than they do in other sorts of litigation.

 The defendant published writings on the American Working Collie Association’s web site about her observations about certain rescued dogs housed at the plaintiff SPCA of Upstate New York, Inc in Queensbury, New York.  The SPCA and its executive director commenced an action against the AWCA claiming that they were defamed by the writings on the AWCA web site.  The defendant executive director is a Vermont resident and president of the AWCA, which is an Ohio not-for-profit corporation.  The president contacted the SPCA’s executive director by telephone on three occasions regarding assistance she offered to SPCA.  The AWCA president visited the SPCA on two occasions within a month; the visits amounted to approximate three-and-a-half hours in total.

 The Third Department observed that whether the long-arm statute applied was a close call.  The Court analyzed the purpose of the defendant president’s contacts with the SPCA in New York, not that there was no evidence that any of those contacts garnered funds, yield members or generated publicity for AWCA.  The Court also noted that the alleged defamatory comments were not made in New York and were placed on a Web site for AWCA members (located throughout the country) with no effort to direct the comments toward a New York audience.

 Notably, the Court recognized that the contact could support long-arm jurisdiction for causes of action other than defamation.  Because the Court framed the contacts as “help[ing] with a difficult situation that had developed suddenly regarding a large number of mistreated dogs,” the Court refused to assert long-arm jurisdiction over the defendants under the “transacts any business within the state” prong.

 The Court of Appeals will wrestle with just how narrow it will construe contacts within a defamation context.  The Court of Appeals’ decision no doubt will still leave litigants guessing whether contacts in future cases are too much or too little to assert jurisdicition.

 

Defamation - New York Court of Appeals Addresses Fact Versus Opinion in Summary Judgment Context

Halstead v. Brokaw (Motion for leave to appeal granted on Dec. 10, 2010) 74 A.D.3d 1283 (2010)

The appeal concerns one of three related actions to recover damages for defamation.  The novel issue appears to concern a court’s determination of whether a statement is one of opinion or of fact.  The Court of Appeals will likely re-examine its holding in Gross v. New York Times Co., 82 N.Y.2d 146 (1993), which set forth the following relevant factors for a court to determine whether a statement is an opinion or of fact: “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to 'signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact.' " (Id. [quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 292 [1986]).

 A unanimous panel at the Second Department granted the defendants’ motion for summary judgment dismissing the second action.  The Court held that the plaintiff in action No. 2 failed to raise a triable issue of fact.

 

New York Court of Appeals Will Hear Oral Arguments on Whether to Extend Primary Assumption of Risk

For its February Session, the New York Court of Appeals will hear oral arguments in Trupia v. Lake George Central School Dist.  The appeal concerns whether the Court should extend primary assumption of risk beyond the context of sporting and entertainment activities.

 The injured infant in Trupia attempted to slide down his school's bannister and fell on his head, fracturing his skull and sustaining a brain injury and retrograde amnesia.  The infant and his father commenced an action against the school.  After discovery and the filing of the note of issue, the defendant school moved to amend its answer to assert the affirmative defense of primary assumption of risk.  

Primary assumption of risk acts as a total bar to liability based on the defendant's alleged negligence.  Since the enactment of the comparative fault statute, primary assumption of risk has typically only applied in cases where the plaintiff was involved in a sporting or entertainment activity.

The Appellate Division, Third Department reversed the trial court's grant of the defendant's motion to amend its answer.  The Court concluded that the defense was devoid of merit because primary assumption of risk did not apply to the injured infant's activity.  The court rejected the defendant's argument that the Second Department and Fourth Department had extended primary assumption of risk beyond the sporting activity and entertainment activity context (Sy v. Kopet (the plaintiff injured while attempting to enter room through second floor window) and Lamandia-Cochi v. Tulloch (the plaintiff was injured while attempting to slide down wooden bannister).

The Court will resolve this conflict between the Appellate Division Departments and clarify the assumption of risk that frequently eludes attorneys.

New York Civil Law will keep you apprised of the developments on this appeal.

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.