We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge’s instructions also apply to Facebook and twitter.

California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against “any form of electronic or wireless communication.” Violators potentially face six months in jail.

New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009.

A “tweeting juror” in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County.

Thanks to Biran Gibbons for his contribution to this post.

Absent a contractual obligation to make repairs or a retention of control over the property, an out-of-possession landlord cannot be held liable for personal injuries sustained on its premises. The Second Department reiterated this principle when affirming the trial court’s decision in Sciammarella v. Manorville Postal Associates, where the plaintiff, a U.S. Postal Service employee sustained personal injuries. Sciammarella fell after stepping into a hole on premises leased by the U.S. Postal Service. Defendant moved for summary judgment and established its prima facie entitlement to summary judgment on the basis that it was an out-of-possession landowner with no control or contractual obligation to maintain the premises.

Thanks to Alison Weintraub for her contribution to this post.

In Corcia v. Rocking Horse Ranch, the plaintiff commenced a negligence action
against defendant’s horseback riding ranch after she allegedly fell off a horse.
Plaintiff claimed that defendants failed to properly instruct plaintiff on how
to control a horse, that defendant’s trail guides were not sufficiently trained,
that they failed to respond when the horse started bucking. Specifically,
plaintiff asserted that the horse bucked a few times over several minutes, but
the guide did nothing. She also alleged that she was not given any instructions
on how to control the horse.

Defendants moved for summary judgment based
on the doctrine of assumption of risk. The Supreme Court partially denied the
motion and the defendants appealed. The Third Department affirmed. It held that
there were issues of fact as to whether the defendants enhanced the risk of
plaintiff falling by (1) failing to respond when the horse bucked, and (2)
failing to instruct plaintiff on how to control a horse.

Thanks to
Gabriel Darwick for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03950.htm

Plaintiff alleged that she sustained personal injuries when the escalator she
was riding suddenly began to shake, causing her to fall to the ground.
Defendants, owners and lessees of the premises, argued that they had no actual
or constructive notice that anything was wrong with the escalator, and were
therefore entitled to summary judgment. The First Department agreed, noting that
the plaintiff failed to raise a triable issue of fact as to defendants’ notice
of any defect. Further, plaintiff testified that she rode this particular
escalator often, knew of no complaints regarding its operation, and saw no
obvious and apparent problems with the escalator prior to her fall.

The
opinion was silent as to whether plaintiff had also brought suit against the
manufacturer or installer of the allegedly defective escalator, but the Court
granted the respective summary judgment motions of the lessees and owners of the
premises.

Thanks to Brian Gibbons for his contribution to this
post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03967.htm

In Zapata v. Sutton, 2011 NY Slip Op 03962, defendant was sued after his car
collided with another car that had crossed over double yellow lines and into his
lane from the opposite direction. Defendant moved for summary judgment and the
court found that defendant could not be held responsible for any part of the
accident as he was “presented with an emergency situation not of his own making”
and had almost no time to react. As such, summary judgment was granted.

The appellate court affirmed, finding that plaintiff’s expert report was
nothing more than pure speculation and unsubstantiated by any facts and thus
failed to raise a triable issue of fact.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03962.htm

Thanks
to Alison Weintraub for her contribution to this post.

In Lipsker v. 650 Crown Equities, the plaintiff, a real estate agent for defendant Skyline, was injured when he fell from a ladder while putting up a sign at Skyline’s office. The plaintiff commenced suit against the owner and manager of the building alleging violations of the Labor Law and common-law negligence.

The lower court dismissed the plaintiff’s Labor Law claims, finding that plaintiff was a volunteer and thereby not entitled to the protections of the Labor Law. The First Department affirmed. In doing so, the court focused on the fact that plaintiff was acting as a volunteer when he helped his boss put up the sign and that he was paid on commission.

Thanks to Gabriel Darwick for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2011/2011_01246.htm

In Vasquez v. JRG Realty Corp. et al., the First Department examined a personal injury case in which a plaintiff alleged that she tripped and fell in front of defendants’ property and suffered personal injuries. The defendants argued that the supposed defect on which plantiff tripped was a trivial one, in that based upon their measurements, the “defect” was approximately the height of a nickel.

In opposition, although plaintiff failed to submit any expert testimony, she testified at her deposition that the defect was approximately three quarters of an inch to one inch. The Court granted defendants’ motion for summary jusgment after finding that plaintiff’s testimony was speculative (not to mention that plaintiff’s account seems to corrorborate the measurements of the defendant’s expert). Moreover, the Court found that plaintiff failed to rebut defendants’ argument that the defect was trivial.

Not surprisingly, the Court does not specficically define what does or does not constitute a trivial defect. As such a determination must be made on a case by case basis based upon the facts. Nevertheless, the Court sets a precedent here in that a defect the size of a nickel or smaller (i.e., a dime or a penny?) may be regarded as a trivial one under similar facts to this case.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htm

In Ameneiros v. Seaside Company, LLC, the Second Department found that defendant had established its prima facie entitlement to summary judgment and that plaintiff failed to raise any triable issues of fact, including that the dangerous condition was recurring and ongoing and that the defendant had actual knowledge of the condition. Plaintiff was injured after she slipped on a puddle of water in an elevator of an apartment building owned by defendants.

The Second Department, affirming the trial court’s ruling, held that defendant had succcessfully proved that the puddle was created by a codefendant, that it did not have actual notice of the puddle, and that the puddle did not exist for a sufficient length of time for defendant to have constructive notice of the puddle. Thus defendant was entitled to summary judgment.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01226.htm

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