Medical Records Discoverable

Generally speaking, an individual has a right to privacy in their medical records and treatment. However, when a plaintiff seeks compensation for an alleged injury, he waives that right and must provide his medical records to his adversary. This rule was highlighted in the recent case of Corbey v. Allam decided by New York’s Appellate Division Second Department.

In Corbey, the defendants appealed an order that denied their motion to compel production of the plaintiff’s medical records. The Appellate Division held that when a party affirmatively places a physical or mental condition in issue, that party waives the physician-patient privilege to those records. A party can avoid the disclosure of such records only by abandoning that facet of their claim. However, if such claims are not “unequivocally abandoned”, the condition remains in issue and defendants are entitled to the disclosure of the relevant records.

Thanks to Michael Monteith for his contribution to this post.

A Call to Arms? Alternative Approaches to PA Dram Shop Liability.

PA’s current dram shop law holds that establishments licensed to serve alcohol are not liable for third-party injuries unless the injured party can show that the intoxicated person “was sold, furnished or given liquor or malt or brewed beverages by the said [establishment] or his agent, servant or employee when the said customer was visibly intoxicated.” Although the statute does not specifically state that an intoxicated person can recover for his own injuries, PA courts have read this right into the statute. In the linked opinion piece, two PA lawyers question whether this is good public policy and suggest alternative approaches.

“Serious Injury” Threshold Addressed

In order to maintain an action arising from an automobile accident, a New York plaintiff must prove that he has suffered a “serious injury” as defined in the State Insurance Law. Failure to meet this burden results in dismissal of plaintiff’s case.

In Delfino v. Luzon, plaintiff claimed to have suffered a “serious injury” to his left shoulder and lumbar spine. The defendant moved for summary judgment and submitted an affirmation from a radiologist who reviewed MRI films (and not just the reports) of the plaintiff’s shoulder and lumbar spine, and found normal structures with only degenerative defects. The defendant also submitted an affirmation from an orthopedist, who conducted a physical examination of plaintiff and found full range of motion. The orthopedist further concluded that plaintiff’s operation on his left shoulder, which occurred shortly after the accident, was performed in order to correct a congenital condition.

In opposition, plaintiff submitted an affirmation from a non-treating physiatrist who listed specific numeric losses of range of motion, but failed to describe what tests were used or any objective basis to substantiate his assessments. The Court found the plaintiff’s affirmation lacked objective findings and failed to address the findings of defendant’s experts that plaintiff’s conditions were congenital.

The Appellate Division ultimately reversed the lower court’s decision denying defendant’s motion for summary judgment and dismissed the complaint.

Thanks to Robin Green for her contribution to this post.

NJ Supreme Court Rules No Independent Duty to Monitor Alcohol Consumption

Alcohol related injuries and fatalities present difficult cases that frequently turn on the fine factual determination of whether someone is ” visibly intoxicated.” In New Jersey, a licensed alcoholic beverage server is liable only if he serves a “visibly intoxicated” person and that service proximately causes an accident. What happens if the license holder does not actual serve the alcohol but rather arranges for a beer truck to be available for patrons to self serve their own alcohol? Can the server be found negligent for failure to properly monitor the alchohol consumption of its guests even in the absence of a finding that it served or “allowed to be served” a visibly intoxicated person?

In Mazzacano v. Happy Hour Social and Athletic Club of Maple Shade, the New Jersey Supreme Court held that the self service of alcohol by patrons is tantamount to service by the Club. Thus, the Club would be potentially liable if a patron serves himself from the beer truck while visibly intoxciated. It is not required that an employee of the Club put the drink directly in the hand of the drunk. Rather the Club is liable if it either serves or “allows” a visibly intoxicated person to be served. In Mazzano, the Club “allows” a patron to be served by making alcohol available from a self service beer truck.

Further, and more to the point in Mazzacano, there is no separate and independent duty to monitor the alcohol consumption of the patrons. If the Club did not serve or allow to be served a visibly intoxicated person, there can be no liability. The plaintiff cannot avoid this requirement by arguing that the Club was negligent because it failed to properly monitor the alcohol consumption of its guests. Thus the Club cannot be liable because the jury concluded that the drunk did not appear “visibly intoxicated” when he served himself from the beer truck.

Bottom line: licensed servers are strictly held to the requirements of New Jersey’s Dram Shop Act but the courts should be reluctant to impose additional requirements.

Car Salesperson Not Obligated To Assess Ability Or Mental Or Physical Fitness Of Customer

In Cook v. Schapiro, defendant Elaine Schapiro, an eighty-year old woman, purchased a car from co-defendant Mt. Kisco Chevrolet Cadillac, Inc. Two days later, while Ms. Schapiro operated her vehicle, she struck a car and fatally injured the plaintiffs’ decedent. Plaintiffs commenced an action, in part, against Mt. Kisco Chevrolet, accusing it of negligently entrusting a car to Ms. Schapiro. Mt. Kisco Chevrolet’s motion to dismiss for failing to state a cause of action pursuant CPLR §3211(a) (7) was denied by the trial court.

The Appellate Division, Second Department reversed the trial court’s order, converted the motion to one for summary judgment pursuant CPLR §3211(c) and granted the motion to dismiss. The Court held that since the car dealership possessed no “special knowledge” regarding Ms. Schapiro or the car, there can be no viable cause of action for negligent entrustment. Moreover, the Court refused to impose a higher a duty upon Mt. Kisco Chevrolet to evaluate ability or mental or physical fitness of its customers.

Failure to Retain Evidence Leads to Dismissal of Plaintiff’s Case

In Firemen’s Insurance Company of Washington v. Krenitsky, a New York judge held that the failure of the plaintiff to retain a key piece of evidence in a subrogation action warranted dismissal of the complaint. The case arose from a fire on July 11, 2004 in a Manhattan apartment building.

After gaining access to the apartment and upon concluding that the stove was the source of the fire, the plaintiff’s expert advised the plaintff’s subrogor, the building owner, to retain the stove for future examination by interested parties. However, when the defendants requested an inspection of the stove during discovery, the plaintiff advised that the stove could not be found. The court granted the defendants’ spoliation motion based on the failure of the plaintiff to preserve the stove after the plaintiff was put on notice, based on its own expert’s report, that the stove held the key to the cause and origin of the fire.

NY Labor Law: When the Roof Falls In

Does Labor Law section 240, otherwise known as the scaffolding law, apply when a plaintiff falls through a permanent structure such as a roof? The issue was recently decided by a New York appellate court in Jones v. 414 Equities, LLC., where the court dismissed plaintiff’s section 240 claim and adopted a forseeability test. Using the forseeability test, courts will first determine whether there was any indication prior to the accident that the work surface would collapse or was in any way weakened. If there is no foreseeable risk of a floor collapse, then the plaintiff’s claims should be dismissed.

Repairs vs. Maintenance Under New York’s Labor Law

In Pakenham v. Westmere Realty, a New York appellate court recently addressed the difference between “repairs” and “routine maintenance” in the application of Labor Law §240. Pakenham, a service technician, responded to a call regarding a lack of heat at the Westmere Realty office after hours in the winter. While working, Pakenham fell from a ladder. The lower court found that the plaintiff’s work was “routine maintenance” and dismissed his labor law claim. The Appellate Division reversed and determined that the plaintiff’s work on a snow covered roof after normal business hours in the dark was a “repair,” and a protected activity under Labor Law §240.

Landlord Avoids “Lights Out” Liability in Multiple Dwelling Public Areas.

In Kopsachilis v 130 E. 18 Owners Corp., the plaintiff fell down an apartment building’s darkened fire staircase during the New York City blackout of August 14, 2003. The plaintiff subsequently brought suit, stating that the owner was negligent per se because the staircase was not continuously lit as required by Multiple Dwelling Law §37.

The Court of Appeals dismissed the plaintiff’s complaint because Multiple Dwelling Law §37 entitles a building owner to assert the defense that he had no “knowledge or consent” of an extinguished light. In dismissing the complaint, the Court of Appeals found that the owner had no liability under Multiple Dwelling Law §37, because he “obviously did not ‘consent’ to the blackout that darkened the staircase.”

Inhaling Perfume At Work Deemed Compensable By N.J. Appellate Division.

In Sexton v. County of Cumberland, the alleged aggravation of an employee’s pre-existing COPD caused by inhaling perfume sprayed into the air by a co-employee was found to satisfy the “arising out of employment” criterion of N.J.S.A. 34:15-7 , and was found to be compensable. The Appellate Division reversed the Workers Compensation Court’s conclusion that the COPD was a proclivity of the employee, the aggravation of which while in the course of employment, did not arise out of the employment.