No Doctor-Patient Relationship Created For Statutory Medical Examinations

In Bazakos v. Lewis, the litigious plaintiff claimed Dr. Lewis injured him when the doctor examined plaintiff during an independent medical examination performed on behalf of tortfeasors in a separate personal injury action stemming from a motor vehicle accident. The trial court dismissed this negligence action deeming it “founded in medical malpractice” bound by a 2 ½- year statute of limitations that was untimely commenced. The Appellate Division, Second Department reversed finding plaintiff’s claim was properly brought as a negligence action and timely filed within the 3-year statute of limitations.

This decision examines the relationship inherent in the performance of a statutory medical examination, the legislative intent of a shorter statute of limitations for malpractice claims and the legal principle of stare decisis.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07081.htm

Landowners’ Summary Judgment Motion Defeated By Its Own Lease Agreement

In Susanne Greis v. Eckerd Corporation et al, an “out-of-possession” landlord learned a hard lesson in not having precise language in its lease agreement. In this case, plaintiff slipped and fell on snow on a ramp leading to Eckerd’s store located within a shopping center owned by co-defendant, Mandarin Realty Company. Mandarin moved for summary judgment to dismiss Eckerd’s cross-claims since Mandarin claimed to be an out-of-possession landlord that had surrendered possession and control of the subject area to Eckerd. The trial court granted Mandarin’s motion.

In reversing the trial court’s decision, the Appellate Division found that Mandarin failed to establish as a matter of law that it was an out-of-possession landlord because the lease agreement failed to support this claim. In particular, the lease agreement failed to delineate the subject ramp where plaintiff fell as part of the demised premises possessed by Eckerd. Another provision in the lease actually required Mandarin to keep all common areas clear of snow that pursuant to the lease included passageways, sidewalks and walkways.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07087.htm

Assumption Of The Risk May Not Apply To Blind Seven Year Old Plaintiff Gymnast

In McCarthy v. SPINS Gymnastics, a legally blind 7-year-old plaintiff was injured when he fell during his second attempt to vault over a pommel horse in defendant’s gymnastics class. The defendant moved for summary judgment arguing that the doctrine of assumption of the risk applied because the infant-plaintiff voluntarily participated in the activity and assumed the risk of injury by engaging in the sport.

The Supreme Court, Suffolk County, denied defendant’s motion finding that there were issues of fact as to defendant’s supervision of plaintiff and placement of safety equipment. Considering the infant-plaintiff’s age, physical disability and inexperience with the exercise performed at the time of his accident, the court held it could not determine as a matter of law that the infant-plaintiff appreciated and voluntarily assumed the risks involved in the activity. That issue will be decided by the jury.

http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008SEP/5100187262004001SCIV.pdf

Intentional Act Ruled An “Accident” By New York Appellate Court

In 2002, Neil Spicehandler was run down by a crazed motorist who jumped the sidewalk in an attempt to “kill as many people as possible.” After his death, Spicehandler’s estate submitted a claim seeking benefits under the uninsured motorist (UM) and personal injury protection (PIP) endorsements in his auto policy. The adverse driver eventually pleaded guilty to murder in the second degree, admitting that he intentionally caused Spicehandler’s death by striking him with his car.

State Farm denied the claim on both counts, arguing that Spicehandler’s death was not “caused by an accident” given the driver’s conceded intentional act. The Appellate Division, Second Department ruled that the UM endorsement excluded coverage for the incident because the UM coverage was limited to circumstances where the insured was injured in an automobile accident at the hands of an financially irresponsible motorist. Since the adverse driver intended to kill Spicehandler, there was no “accident” and hence no UM coverage.

Finding a distinction between the policy’s UM and PIP endorsements, the First Department did not find such a limitation with regard to the death benefits claim. In contrast to its UM analysis, the court looked at whether the event was “accidental” from the standpoint of the insured in the PIP context. Since Spicehandler’s death was unforseen from his standpoint, the event was “accidental” and State Farm’s duty to provide death benfits triggered.

The opinion was decided 3-2, which gives State Farm the right of appeal to New York’s highest court. Stay tuned.

State Farm Mut. Auto. Ins. Co. v Langan
2008 NY Slip Op 06980
Decided on September 16, 2008
Appellate Division, Second Department

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06980.htm

PA Revisits Successor Liability in the Case of the Flying Fire Hose.

It has long been assumed that a “cash only/assets only” corporate purchase absolves the purchasing company of the pre-existing liabilities of the purchased. This rule has been called into question in the case of Schmidt v. Boardman (PICS No. 08-1474 (Pa. Super. 2008). In Schmidt, Boardman was a fire truck manufacturer. As the apparent result of a design defect, a fire hose on the truck became loose during operation, flew into the air and set in motion a chain of events that led to the death of a young girl along with various other injuries to other parties. Sinar Manufacturing bought Boardman after the accident and the question that ultimately arose before the jury was – was Sinar responsible for Boardman’s liabilities? The jury answered in the affirmative (thereby holding that the product line exception applied) and Sinar appealed.

On appeal, the Superior Court affirmed the jury’s finding. The Court applied the so-called Ramirez test and held that when a corporation “acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation”, it is “strictly liable” for injuries caused by defective units of the same product line, even if they were manufactured and distributed before the acquisition was made. The Superior Court also affirmed its Hill ruling that incorporated a California rule and held that for the product line exception to apply, three factors must be present: (1) the preclusion of the plaintiff’s remedies against the original manufacturer caused by the successor’s acquisition of it; (2) the successor’s ability to inherit the original manufacturer’s risk-spreading role; and (3) the fairness of requiring the successor to assume responsibility for the previous corporation’s defective products.

http://www.superior.court.state.pa.us/opin.htm

Insurance Company Loses In School Food Fight

In Medrano v. State Farm Fire & Casualty, the court issued a judgment declaring that the defendant insurance company had an obligation to defend and indemnify its insured, the Filers, under their homeowners policy, in the underlying personal injury action entitled Medrano v. Filer. The underlying action stemmed from a food fight that occurred in an Ozone Park middle school when student Robert Filer threw a garbage can into the air and struck teacher’s aide Elsa Medrano, injuring her. State Farm had disclaimed coverage since the incident did not qualify as an “occurrence” as defined in the policy. Also, there was an exclusion for bodily injury that either was expected or intended by the insured or was the result of willful and malicious acts of the insured. State Farm appealed this order and judgment.

In affirming the lower court’s decision, the Appellate Division, Second Department, found that neither the policy definition of “occurrence” which was simply “an accident which results in bodily injury” nor the aforementioned exclusion for bodily injury caused this incident to fall outside of coverage or within any valid policy exclusion. Additionally, the fact that the claims asserted against the Filers were grounded in negligence implied an unintentional or unexpected event which gives rise to a covered claim as against the Filers. This finding was further supported by the deposition testimony of Robert Filer that demonstrated his actions were not meant to cause injury to Ms. Medrano.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06699.htm

Undocumented Worker Loses Bid to Recover Lost Wages Due to Fraud

Two years ago in Balbuena v. IDR Realty LLC. [/i], the New York Court of Appeals ruled that an undocumented worker does not automatically lose the right to pursue a lost wage claim because of his unauthorized immigration status. In Balbuena, the court zeroed in on whether the plaintiff provided false documentation in order to obtain his job as a crucial fact and in the absence of such a finding, the plaintiff could seek lost wages.

In Macedo v. J.D. Posillico, a New York motion court held that a worker who submits fradulent work documents including a bogus social security number loses the right to pursue a lost wage claim. Focusing on the language of Balbuena, the court emphasized that an unauthorized alien is penalized under the prevailing immigration laws where the employer takes reasonable measures to confirm an employee’s right to work in the United States and the worker perpetrates a fraud.

Macedo v J.D. Posillico, Inc.
2008 NY Slip Op 51787(U)

Supreme Court, New York County
Judge Carol Robinson Edmead

NJ Gives Expansive Reading Of Child Abuse S/Lims: 14 Year Old Claim Revived

New Jersey’s Child Sexual Abuse Act (CSAA) requires that any claim for sexual abuse be filed within 2 years after “reasonable discovery” of the injury and its causal connection to the alleged molestation. Such an inquiry is necessarily fact intensive, focusing on not only the victim’s recollection of the sexual abuse but the time that he connects any ensuing injury with the abuse.

Given the horror of sexual abuse and the legislative response in enacting the CSAA, courts have liberally applied the statute’s protections. In R.L. v. Voytac, the Appellate Division was faced with a situtation where the plaintiff filed an action against his former stepfather 14 years after the last act of abuse. The alleged abuser successfully argued before the motion court that the statute began to tick when the plaintiff had flashbacks about his abuse while engaging in sexual acts with his girlfriend 5 years earlier. Afterwards, the plaintiff recounted these memories to his mother who suggested counselling and told him “there was no way this hasn’t affected [you].” Despite this advice, plaintiff did not seek counselling and continued on a downward psychological spiral. In contrast, the plaintiff argued that he did not make the connection between his psychological problems and the abuse until several years later “when a lightbulb” went off while confiding his troubles to a coworker.

Relying on the remedial nature of the CSAA and the difficulties inherent in claims of sexuxal abuse, the Appellate Division reinstated plaintiff’s claims. The panel emphasized that the victim must have a “conscious awareness” not only of the abuse, but of the abuse’s relationship to the injuries and symptoms experienced by the plaintiff. The end result: summary judgment for the defendant reversed and the case reinstated.

In balancing the equities of a plaintiff seeking redress for injuries inflicted on him as a minor versus the right of a defendant to have timely access to proof of innocence, the child’s interests will frequently trump the alleged abuser’s. And that result should be no surprise to any litigant, litigator or insurer where the claim involves the sexual abuse of a minor.

http://www.judiciary.state.nj.us/opinions/a1001-06.pdf