Permit Alone Not Sufficient to Prove Work Actually Performed (NY)

A bit of good news for construction defendants – a permit to do work does not automatically keep you in the case. In Cruz v. Keyspan, the Second Department upheld defendant Verizon’s summary judgment dismissal from the action. Verizon moved on the basis that it did not do work in the area where plaintiff fell or otherwise create the defect. Plaintiff contended that the existence of a permit issued to Verizon to open up the sidewalk near the roadway where plaintiff’s accident occurred created an issue of fact. Like a rare breath of cool, fresh air in the August heat, the trial court and the Second Department disagreed and Verizon’s summary judgment dismissal was affirmed.

The takeaway from Cruz: just because you had a permit does not mean you did the work.

Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at .

Story Half Told Leads to Reversal (NJ)

A story is only half told if there is only one side presented.  In Manata v. Pereira, the Superior Court of the State of New Jersey, Appellate Division held that a police report containing only half of a story was improperly used to discredit a witness.

The Appellate Division reversed the liability finding in this verbal threshold case, because plaintiff’s counsel improperly cross-examined defendant using a police report that only contained plaintiff’s version of the story.  Defendant-driver struck plaintiff-pedestrian as she attempted to cross the street in Newark, New Jersey.  Only plaintiff and defendant testified about the circumstances of the accident.  Plaintiff maintained that she was struck while walking in the crosswalk, while defendant asserted that plaintiff darted out from between two busses, attempting to cross in the middle of the block.

The police did not respond to the scene of the accident.  Defendant testified that he went to the police station later that day and provided the police with his version of events.  When defendant arrived at the police station, plaintiff was already present.  The undated police report contained only plaintiff’s version of events, made no mention of defendant’s version of the accident and was prepared contrary to the N.J. Motor Vehicle Commission report preparation guidelines. Defendant asked the police to correct the report to include his version of the accident but to no avail.

During the trial, plaintiff’s counsel did not offer the police report into evidence.  However, plaintiff’s counsel repeatedly used it in cross-examination to impeach defendant with his alleged omission of the version of events that he asserted during his testimony.  At the close of trial, the jury found for the plaintiff, awarding her $350,000.  However, the appellate court reversed the award, holding that the cross-examination was improper since plaintiff’s counsel conveyed through his questioning the substance of the unadmitted report, as evidence of defendant’s alleged omission.

While it may be tempting to use documents that are in full support of a client’s position, counsel must exercise caution when subtly referring to inadmissible evidence at trial.

Thanks to Steve Kim for his contribution to this post. If you have any questions, please email Paul at .

Man vs. Dog Round II: Dog Gets First Bite Free (NY)

In New York, as a condition for recovery for a dog bite, plaintiff must show “vicious propensities”  of the dog through proof that the pet has previously attacked someone, or the dog’s tendency to growl, snap, or bare its teeth. Further, the manner in which a dog is restrained or the fact that the dog is kept as a guard dog may indicate that the owner is aware of the dog’s purported vicious propensities. But, if these factors do not exist, a plaintiff will not be able to recover in strict liability.

Such was the case in Vallejo v Ebert. In Vallejo, the defendant’s dog had been living with her family, which included a small child, without incident for approximately four or five years before it bit the plaintiff. Before the incident, the defendant had not seen the dog exhibit any aggressive behavior. In opposition to the defendant’s motion for summary judgment, plaintiff argued that the presence of a “Beware of Dog” sign on the defendant’s home coupled with the fact that the dog may have been confined when there was a celebration at the premises raised a triable issue of fact as to the defendant’s knowledge of the dog’s vicious propensities. The court disagreed with plaintiff and the lower court’s ruling granting summary judgment was affirmed by the Appellate Division, Second Department.

Close call but the defendant escapes liability in this case. But now that the dog has digested its one free bite, the next “snack” will be an expensive one for its owner.

Thank to Johan Obregon for his contribution for this post.  If you have any questions, please email Paul at

Rare “Threshold” Dismissal Quickly Reversed by Second Department (NY)

In order to maintain a lawsuit based upon a personal injury sustained in a motor vehicle accident, a plaintiff’s injury must be “serious” under Section 5102 of New York Insurance Law.

As a practical matter, if a defendant moves for summary judgment, plaintiffs are well-advised to respond with an affidavit from a medical expert, usually an orthopedist, to comment on the plaintiff’s residuals and to demonstrate a “triable issue of fact” as to the seriousness of the injury. In recent years, it has become increasingly difficult for defendants in motor vehicle accident litigation to prove, on papers, that a plaintiff did not sustain a serious injury. A well-crafted plaintiff’s expert affidavit has become the lynchpin of the plaintiff’s response to a “threshold” motion.

In Werthner v. Lewis, multiple defendants actually succeeded in dismissing a plaintiff’s suit on “threshold” grounds – but this success was short-lived. Last month, the Second Department reversed the dismissal and remanded the matter to Suffolk Supreme Court. Notably, the Court did not even comment on the specifics of plaintiff’s injury. Rather, the Court refers to the plaintiff’s alleged “increased post-accident symptomology,” which the defendant’s expert conceded in his own report. This concession defeated defendant’s obligation to establish, in their moving papers, that plaintiff did not sustain a serious injury.

The salient point of Werthner, and other recent “threshold” decisions, is that the Appellate Division seems to be discouraging “threshold” motions by consistently finding either issues of fact or discrepancies in defendants’ expert reports that render summary judgment inappropriate. Absent a legitimate pre-existing injury, subsequent lapse in treatment or intervening injury, a plaintiff’s opposition containing the correct “catch words” has a good chance to defeat a defendant’s threshold motion. That the Second Department does not reference the specifics of plaintiff’s injury suggests that the injury matters less than how the opposition is crafted.

Thanks to Brian Gibbons for his contribution to this post. If you have any questions, please email Paul at

 

 

No Strict Liability for Medical Expenses from Dog Bites (PA)

In Pennsylvania, 3 P.S. § 459-502(b)(1) of “Dog Law” provides the following for bite victims: “Any cost to the victim for medical treatment resulting from an attacking or biting dog must be paid fully by the owner or keepers of the dog. The Commonwealth shall not be liable for medical treatment costs to the victim.” The question becomes whether the statute imposes strict liability on dog owners for medical expenses resulting from dog bites.

In Warner v. Campbell, the plaintiff filed suit in the Court of Common Pleas of Lycoming County after he was bitten by the defendants’ dog. The defendants filed preliminary objections to count III of the amended complaint which sought a claim for medical expenses resulting from the dog bite based on the Pennsylvania statute—that according to the plaintiff—imposed strict liability for those expenses.

The court relied on Rosenberry v. Evans and statutory interpretation in making its decision. The court reasoned that while the statute appears to provide a claim for strict liability on its face, the court in Rosenberry found that proof of the owner’s negligence is required to succeed in a cause of action against dog owners for injuries sustained by their dogs. In other words, Pennsylvania does not impose absolute or strict liability upon dog owners for dog bites.

The court also reasoned that the statute is worded to make clear that while the Commonwealth will pay detention costs when the dog’s owner is unknown, the Commonwealth is not responsible for medical expenses to the victim. Additionally, sections 531 and 532 of the statute provide a private causes of action to owners of sheep for damages resulting from dogs “chasing or worrying sheep.” The court held that since the legislature did not provide a similar cause of action for victims of dog bites, the legislature did not intend to do so. As a result, the court sustained the defendants’ preliminary objections and dismissed count III of the amended complaint based on strict liability.

Thanks to Eric Clendening for his contribution for this post.  If you have any questions, please email Paul at

 

No MRIs? Build a Case for Spoliation (NY)

There are numerous medical/diagnostic facilities throughout New York City that have their practices called into question. Some go out of business and are never to be heard from again, making it difficult for the defendant to obtain the actual films. The lack of available films can cause gaps in an independent expert’s report that exposes the expert up to cross examination. The use of a plaintiff’s treating physician or expert radiologist’s review of films that no longer exist can paint a very one-sided picture of the plaintiff’s injuries for the fact finder. What’s a defendant to do?

Recently, the New York State Supreme Court, Appellate Division Second Department, considered whether preclusion sanctions for spoliation were proper against a plaintiff. In Eremia v. Scparta, the Second Department modified a trial court’s order that granted defendants’ “spoliation” motion to preclude plaintiff from introducing MRI films and related reports of those MRI films. While the Appellate Division reversed the lower court and gave plaintiff a final opportunity to produce the films and records, the decision reveals what efforts a defendant needs to take to be successful under a theory of spoliation.

The facts indicate that the Plaintiff underwent MRI testing a facility that had since closed. The defendants learned this when the authorization to obtain the records set to the facility’s last known address was returned as undeliverable. Defendants could not obtain the films for the purposes of conducting an independent radiological review and therefore, moved to preclude the records of this facility (CPLR 3126), and in the alternative to compel the records (CPLR 3124).

“Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence.”  The Second Department found that the defendants failed to demonstrate that the plaintiff or anyone under her control lost or destroyed the MRI films and records. In short, the defendants failed to meet their burden in requesting the sanction and the lower court’s order was modified to allow the plaintiff an extension of time to locate and produce the films and records or an affidavit attesting to the fact that the MRI films or copies of the films “were not in their possession or control or the possession or control of their counsel, treating physicians, experts or anyone under their control.”

The decision informs that such records are “key evidence” for the purposes of considering the sanction. Moreover, the holding instructs that counsel, treating physicians and experts are deemed to be under plaintiff’s control for the purposes of spoliation. Defendants faced with this scenario should increase their investigative efforts to determine whether an alternate records custodian exists. Defendant could use other discovery devices such as the deposition and notice to admit to determine the existence and whereabouts of the films and whether anyone under plaintiff’s control negligently lost or intentionally destroyed the evidence. Records procurement is an important aspect of all personal injury cases and defendants cannot expect to win a spoliation motion without a complete investigation and use of available resources in order to meet the burden to allow the court to grant the sanction.

Thanks to Vin Terrasi for his contribution to this post. If you have any questions, please email Paul at

 

“Hills and Ridges” Doctrine Levels Lawsuit (PA)

In Pennsylvania, liability is ordinarily not created just because a sidewalk is slippery. Conversely, liability will be imposed when there is a dangerous slippery condition that has remained for an unreasonable amount of time.

Stobodzian v. PNC Financial Services Group, et al., arose out of a February 12, 2010 slip and fall that occurred in a PNC Bank parking lot following a substantial snowfall. The plaintiff’s complaint alleged that he slipped on snow/ice while lawfully on the premises of PNC Bank. The plaintiff joined a number of defendants including PNC Bank and those responsible for the snowplowing at the time of the plaintiff’s slip and fall.

At the conclusion of the two-day trial, the jury was charged with a “hills and ridges” instruction, which describes an owner’s duty of care regarding snow/ice on a walking surface. A “hills and ridges” instruction is only appropriate when the general slippery condition results from an “entirely natural accumulation of snow/ice”. Thus, in order for this plaintiff to be awarded damages, the jury must find three essential elements: (1) that ice and snow had accumulated on the walking surface in ridges or elevations that unreasonably obstructed travel and were a danger to persons traveling on the walk; (2) that the defendant property owner knew or should have known of the existence of such conditions; and (3) that it was the dangerous accumulation of ice and snow that caused the plaintiff to fall. Ultimately, the jury determined that none of the defendants were negligent and awarded the plaintiff no damages.

On appeal, the plaintiff raised one issue: the “hills and ridges” jury instruction should not been given. Specifically, the plaintiff argued that the trial court erred in giving the instruction because the snow/ice that the plaintiff slipped on was the result of an “artificial condition created by human intervention”. To support his argument, the plaintiff relied on the fact that vehicles pulling into PNC Bank’s parking lot would drag snow in with them. The Superior Court, however, affirmed the trial court’s use of the “hills and ridges” instruction, adhering to Pennsylvania’s long-standing doctrine used to protect land owners from liability where the owner has not permitted the snow/ice to accumulate.

Thanks to Erin Connolly for her contribution to this post. If you have any questions, please email Paul at

High School Responsible for Acting Like Parent and Nurse (NY)

In Barragan v. City School District of New Rochelle, the plaintiff, a senior in high school, cut his finger during class. The school nurse treated the plaintiff but failed to tell him to sit down while she bandaged his finger. Subsequently, the plaintiff fainted and struck his head on the floor. The lower court denied the school’s motion for summary judgment.

The Second Department affirmed the lower court’s decision finding that a high school not only has a duty to properly supervise students as a reasonable parent would but also has to use good and accepted standards of nursing when providing medical treatment to a student. The Court found that the school failed to show that it had no notice of the plaintiff’s prior medical condition or that the plaintiff failed to inform the nurse that he was feeling lightheaded.

Thanks to Georgia Stagias for her contribution to this post. Please email Paul if you have have questions about this post at .

 

ERISA Plans Lose Right of Reimbursement in Settlements (NY)

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The plague of health care reimbursement claims has frustrated many settlements.  The parties agree on a fair and reasonable settlement but prior health care payments gum up the settlement.  The New York legislature arrived at a compromise in 2009 when it enacted General Obligations Law 5-335 that prohibits insurers from seeking reimbursement of medical benefits paid from a member’s tort settlements.  The question remained whether this statute was preempted by ERISA, which would make claims for reimbursement by employer-sponsored plans beyond the reach of General Obligations Law 5-335.

The Second Circuit addressed this issue in Wurz v. The Rawlings Company and held that Gen. Oblig. Law 5-335 trumped ERISA in this context Giving a resounding victory to both plaintiffs and general liability insurers –a rare partnership in litigation – the Second Circuit held that ERISA did not affect  the duty imposed by Gen. Oblig. Law 5-335 on health care insurers not to seek reimbursement of medical expenses from their members’ tort settlements.

Wurz gives CGL insurers and self-insured defendants clear authority to resist claims for medical reimbursement even from ERISA based health insurance plans. On a practical level, Wurz will encourage settlements by allowing the parties to negotiate without any obligation to reimburse health care insurers for benefits paid on behalf of their members.

If you have any questions, please email Paul at .

“Sterling” Advice For Testifying Physicians

The King is dead; long live the King.  What an appropriate description of the precipitous fall from grace of the soon-to-be former owner of the Los Angeles Clippers professional basketball team. The legal proceedings concerning the sale of the Los Angeles Clippers to former Microsoft CEO Steve Ballmer are replete with legal issues.  One intriguing question concerns a medical expert witness socializing with Donald Sterling, the very person about whose mental health she provided expert testimony.

In opposing the two billion dollar sale of the Clippers, Donald Sterling’s attorneys questioned the ability of neurologist Dr. Meril S. Platzer to testify given her prior social contact with Sterling.  Dr. Platzer was one of two physicians who examined Mr. Sterling on behalf of the family trust that controlled the Clippers and declared him to be lacking in mental capacity.  Dr. Platzer, Mr. Sterling, Mr. Sterling’s estranged wife Rochelle “Shelly” Sterling, Mr. Sterling’s attorney Bobby Samini, and a Sterling family friend, had dinner and drinks together at the Polo Lounge at the Beverly Hills Hotel after she examined Mr. Sterling earlier the same day.  According to Dr. Platzer, Donald and his entourage basically barged into the dinner of Shelly  Sterling and Dr. Platzer despite Shelly’s attempts to “discourage them.”

Medical expert witnesses must grasp the significance not only of their testimony, but also of maintaining a professional relationship and distance with the individual examined.  Even in situations where courts finds that the professional relationship, and thereby the results of the examination, have not been compromised like the Sterling trial, social activities such as dinner and drinks (while they certainly may be enjoyable) should be avoided.

As the old hoops saying goes, “No harm, no foul.”  Judge Michael Levanas of the California Superior Court eventually sided with the trust – and Dr. Platzer—and found Donald Sterling mentally incapacitated.

If you have any questions about this post, please email Paul at .