PA Superior Court — Head Injuries Inherent to Softball

In the case of Craig v. Amateur Softball Association of America,(Pa. Superior Ct. June 4, 2008), the plaintiff (who was not wearing a helmet at the time) was struck in the head by an errantly thrown ball while running the bases at a softball game. He claimed various physical injuries as a result. He subsequently sued the softball association that had sponsored the game and argued that the league had a duty to mandate or at least recommend the wearing of helmets. The trial court granted summary judgment for the defendant and the plaintiff appealed. The Superior Court affirmed the dismissal and held that the defendant association did not owe a duty to warn, protect or insure against risks that are “common, frequent, expected and inherent” to the injury causing activity.

Don’t Insult the System: Second Department Orders New Trial

Defense counsel argued that because the plaintiff’s husband was collecting disability payments from the NYPD, plaintiff was now trying to “snow” the jury and “max out” the civil justice system. The Second Department held such “inflammatory comments” by counsel required a new trial on damages.

A.D. Defines Foreseeability Of Crime Necessary For Negligent Security Claims

In Maria T. v. New York Holding Company Associates et al, the plaintiff was sexually assaulted at gunpoint in her apartment. In her lawsuit, she claimed that the defendants failed to provide adequate security for the building where she lived. She asserted that the defendants failed to maintain a working lock on the sole entrance into the building. Defendants moved for summary judgment on the grounds that the assault was not foreseeable in that they were unaware of any criminal activity in the building other than the crime at issue and that the prior crimes relied upon by plaintiff were not similar to the assault and therefore did not demonstrate that the assault was foreseeable. In opposition, plaintiff relied upon police reports that reflected criminal activities that occurred in or near the building to establish that this crime was foreseeable. Plaintiff also retained an expert in the field of premises security who opined that the subject apartment building was in a police precinct with high rates of crime and the drug activity in the neighborhood attracted criminal elements to the neighborhood, thereby making the assault on plaintiff foreseeable.

The Trial Court denied defendants’ motion, citing a question of fact as to the issue of foreseeability. In reversing this decision, the Appellate Division, First Department held that building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from foreseeable criminal acts of third parties. In order to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based upon prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location. While plaintiff cited seven prior instances of criminal activity in and around the apartment building, ambient neighborhood crime alone is insufficient to establish foreseeability. In conjunction with the fact that none of them were similar to the sexual assault committed against the plaintiff, the crime perpetrated upon plaintiff was not foreseeable ie., reasonably predictable.

New York To End No Prejudice Rule

New York is one of the few (if not the only) state in which a carrier need not prove that an insured’s late notice prejudiced the carrier in order to disclaim on that ground; Governor Patterson recently introduced a bill which changes that. It passed both the Assembly and is expected to pass the Senate shortly. The long and the short of the legislation is that 180 days after the legislation is signed, NY will join the majority and carriers will only be able to disclaim on late notice if they were materially prejudiced by the late notice. In addition, injured parties will be able to bring declaratory judgment actions challenging a late notice disclaimer before having to obtain a judgment. Moreover, if a primary personal lines policy or a statutorily mandated policy is in play, the injured party will have the right to obtain coverage information FROM THE CARRIER prior to commencing litigation.

PA Superior Court Affirms Inadmissibility of Some Guilty Pleas in Subsequent Civil Lawsuit.

In the case of Stumpf v. Nye (PA Superior Court, June 3, 2008), the defendant Nye provided a ring for boxing matches. While at the ring, the plaintiff became involved in a fight with Nye – a fight that caused the plaintiff physical injuries. Nye was charged with a crime and subsequently pleaded to a summary offense of disorderly conduct. In the plaintiff’s resulting civil lawsuit, Nye moved to preclude the admission of the disorderly conduct plea. The trial court granted the motion and the jury ultimately found for the defendant. The plaintiff appealed the trial court’s ruling. The Superior Court rebuffed the plaintiff and affirmed the trial court’s ruling – on the ground that evidence of a conviction on a summary offense (like disorderly conduct) is not admissible in a subsequent civil proceeding.

Plaintiff Failed to Demonstrate That Fall From Flatbed Violated Labor Law §240(1)

The plaintiff in Berg v. Albany Ladder Company, Inc., et al., was working on a flatbed truck unloading steel trusses. While standing on top of a bundle of trusses, approximately 10 feet off the ground, another bundle began to roll on top of him. The plaintiff climbed into the bundle as it fell to the ground and was injured. In granting the defendants’ motion for summary judgment, the Court of Appeals reiterated that the protections of Labor Law §240(1) do not apply to every worker who falls and is injured at a construction site. Rather, the worker must first demonstrate the existence of an elevation-related hazard contemplated by the statute and a failure to provide the worker with an adequate safety device. The Court held that the plaintiff failed to adduce sufficient proof to create a question of fact regarding whether his fall resulted from the lack of a safety device.

Failure To Advise Insured Of Right To Independant Counsel Could Be A Deceptive Practice

In Elacqua v. Physicians’ Reciprocal Insurers the Appellate Division, Third Department held that a carrier’s failure to affirmatively advise an insured that, when the existence of both covered and uncovered claims creates a conflict of interest between the carrier and insured the insured is entitled to obtain independent counsel at the carrier’s expense, is a deceptive practice under General Business Law 349. The same court ruled in 2005 that a carrier has the affirmative duty to advise the insured of its right to independent counsel, a decision in conflict with an earlier First Department case.

The key fact supporting the deceptive practice claim was that the carrier’s practice was not to inform an insured of its right to independent counsel, thus making the offending practice consumer-oriented, not just a private dispute with this particular insured.

Coffee Break Bonanza: Jury Award For Spill Reduced By Appellate Division

In Griffin v. Starbucks Corporation, the plaintiff was injured when defendant’s employee slid a cup of coffee across a counter toward plaintiff, causing it to spill on her left foot and burn it. A trial resulted in a jury award of $50,000 for past pain and suffering and $250,000 for future pain and suffering. After post trial motions, the trial court ordered a new trial unless plaintiff agreed to $150,000 as the award of future pain and suffering. The Appellate Division, First Department found the future pain and suffering award deviated materially from what would be reasonable compensation and ordered a new trial unless plaintiff agreed to an award of $25,000.

A Wheel Difference – NY UM Decision

New York’s Second Department recently held that a four-wheeled ATV was not a “motor vehicle” as defined by the claimant’s policy or under New York’s Vehicle and Traffic Law, and therefore the claimant could not recover UM benefits after her car collided with the uninsured ATV.

The Court noted that, of course, a three-wheeled ATV is a different story altogether, because in that case, the ATV might be considered a motorcycle.

The lesson, it appears, is to be careful on the roads and when appearing before the Second Department.

New York’s Top Court Upholds Removal Of Niagra Falls Judge Over Ringing Cell Phone

The New York State Court Of Appeals unanimously affirmed the removal of Judge Robert Restaino, who jailed 46 people in his courtroom after no one would own up to a ringing cell phone. After the cell phone rang during the Court session, Judge Restaino called each defendant in the courtroom before him and ordered them into custody when they denied knowledge of the cell phone.

The Court of Appeals called the punishment of innocent people under the circumstances “inexcusable”.