The WCM Law Blog

In New York’s Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant’s side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court.

On appeal, the defendant did not challenge the Supreme Court’s finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff’s comparative negligence, precluding summary judgment.

In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma.

After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one’s negligence may have been a substantial factor in causing the injury, whether one party’s negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable.

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm

Thank you for Gabe Darwick for this post.

When you think of New York City, capitol of the universe, you probably think of such things as skyscrapers, crowds, hot dogs and the Yankees.  But what you probably don’t think of is trees.  Yet it is trees that are causing an increasing number of legal headaches for the Big Apple.  NYC has approximately 2.5 million trees in the City’s parks and streets and there are plans to plant 1 million more over the next few years.  The problem is that, as a result of poor training and a lack of budget funds, the trees are not being properly monitored for damage/disease or other problems.  Thus, over the last 5 years, 49 people have been injured and 2 people have been killed by falling trees.  Certainly, these are not enormous numbers, but when the NYT runs a front page essay  on the problem (and cites trial and deposition testimony) you can bet that the plaintiffs bar is paying attention.  You can also surely bet that the Mayor’s office is paying attention – might a change to tree responsibility be around the corner (similar to the sidewalk liability changes of 2003)?  Stay tuned to find out.

For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

In Seals v. County of Morris , the New Jersey Supreme Court held that Jersey Central Power & Light was not immune from liability for its negligent placement of an electrical pole. The Court held that if a government entity directed the utility where to place the pole, then N.J.S.A. 48:3-17.1 conferred immunity on the utility. However, where there is no governmental dictate or order , as in Seals, ordinary negligence standards apply and utility companies that place their poles without considering whether they are in dangerous locations can be held liable for resulting injuries.

In Seals , the utility pole had been at its location , an old stagecoach route, since approximately 1937. The location had been the site of several prior accidents and the pole had previously been replaced three times.

http://lawlibrary.rutgers.edu/collections/courts/supreme/a-84-10.opn.html

 Please contact Robert Ball with any questions regarding this post.

While it is unclear whether a funded study was necessary for this conclusion, a recent Consumer Reports survey has found the following two statements to be true: First, young people (ages 16 to 21) fully understand the increased danger of texting while driving. Second, that same age demographic nevertheless continues to text while driving.

Moreover, a recent study conducted by the U.S. National Highway Traffic Safety Administration found that drivers age 18-20 are three times more likely to send or receive texts or emails while driving than drivers older than 25.

Studies like these will most likely be cited in the growing movement (among some special interest groups, at least) to ban all cell phone use, even with a hands-free device, while driving.
It is unclear exactly how much steam this movement has gained, but we suspect lobbyists in the employ of companies like Bluetooth would “respectfully disagree” with such a pervasive ban of hands-free devices.

Thanks to Brian Gibbbons for this contribution.

In Kalafatis v. Royal Waste Management, the plaintiff was a passenger in a stolen vehicle that ran a red light and collided with the co-defendant’s truck. The co-defendant’s motion for summary judgment was granted. The plaintiff appealed and moved to re-argue.

The lower court granted the plaintiff’s motion to reargue and, accordingly, the plaintiff never perfected his appeal. The plaintiff’s motion to reargue was heard and the court upheld its prior decision. Once again, the plaintiff appealed.

The Second Department stated that, as a general rule, it does not consider issues on a subsequent appeal that could have been or were raised in an earlier appeal. Nevertheless, the Court used its inherent jurisdiction and discretion and agreed to hear this appeal. Unfortunately for the plaintiff, the lower court’s prior decision was, once again, upheld.

Thanks to Georgia Stagias for this post.

For more information, contact Denise Ricci at dricci@wcmlaw.com