Plaintiff Rides Again: Dude Ranch’s Motion for Summary Judgment Denied (NY)

In SARA W by HENNY W v Rocking Horse Ranch Corporation, plaintiffs commenced an action seeking to recover damages for injuries sustained by plaintiff, who was 16-years-old, when she fell from a horse while at defendant’s dude ranch. Defendant moved for summary judgment on the theory of assumption of the risk, but was denied by the lower court. Defendant appealed.

Under the doctrine of primary assumption of the risk, although “participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, ‘[p]articipants will not be deemed to have assumed unreasonably increased risks’ ”

In support of its motion, defendant submitted the deposition testimonies of the infant and Robert Gilbert, a certified horse wrangler employed by defendant who assisted the infant, to show that it exercised care in ensuring that the horse riding conditions were as safe as they appeared to be. Gilbert’s testimony established that the infant was provided with an appropriate horse for a beginner’s trail, helmets were required of infants participating in the ride, the infant was provided with instructions prior to the ride and a horse wrangler accompanied the riders during the trail ride and also assisted the riders when dismounting. Importantly, the infant herself testified that she was aware that there were risks involved in the activity, as she had been on horseback riding trails prior to the incident.

Plaintiff contended that defendant was negligent in helping her dismount the horse. The infant’s description of the incident differs from Gilbert’s description. Specifically, the infant testified that Gilbert moved away from her and towards the horse’s head to tame it and that it was this movement by Gilbert that caused the horse to move, leading to the infant’s fall.

The Appellate Division, Third Department agreed with lower court and upheld their decision finding a question of fact. The Appellate Division held that although defendant attempted to provide adequate assistance on dismount, there still remains a question of fact as to whether defendant’s response to the situation, in light of evidence that the infant was a novice and that the horse was jittery and jumpy, heightened the risk of her fall, thereby unreasonably increasing the risks of horseback riding.

As we highlighted some years ago reporting on Corcia v. Rocking Horse Ranch, there will be a question of fact whenever a plaintiff presents evidence that the defendant increased the risk at hand.

Thanks to Paul Vitale for his contribution to this post.

Serious Injury Threshold Favors Plaintiff with Documented Pre-Existing Condition (NY)

In New York, a person injured in a motor vehicle accident cannot maintain a lawsuit for personal injuries unless the injuries are “serious” as defined by the New York State Insurance Law.  Typically, the Court is lenient as to what constitutes a serious injury, assuming the plaintiff’s medical proof is sufficient to show prima facie evidence of a serious injury.

In Munoz v. Robinson, decided by the Appellate Division, First Department on March 5, 2019, the underlying Court had granted summary judgment in favor of the defendants on the plaintiff’s failure to meet the personal injury threshold. Plaintiff suffered a torn meniscus and had surgical repair following the accident. However, plaintiff had pre-existing degenerative issues with the knee confirmed by her own physicians.

Both the lower Court and the Appellate Division found that the defendants met their burden in showing that the injury which required surgical repair pre-existed the accident. However, the Appellate Division found that plaintiff raised a question of fact to overcome the defendant’s prima facie showing of entitlement to summary judgment by showing that the accident aggravated the prior injury to such a degree that surgery was necessary, wherein it would likely not have been necessary before.

This decision further shows how the high standard defendants face in obtaining summary judgment on the personal injury threshold issue in motor vehicle accident cases.  Even here, if we might paraphrase Michael Corleone, the defendants thought they were out, but the First Department pulled them back in!  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Untimley Expert Disclosure Stricken in Westchester County (NY)

At a time when many counties tend to blur the CPLR, it is nice to know the rule of law still applies in Westchester County.  The Second Department upheld a lower court decision to strike plaintiff’s untimely expert disclosure and deny plaintiff’s cross motion to amend her pleadings in Holder v. County of Westchester.  Downstate counties are increasingly permitting post-note of issue discovery, however, the Supreme Court in Westchester correctly struck plaintiff’s post-note of issue expert disclosure upon defendant’s motion.

Plaintiff was allegedly injured on December 13, 2009 while disembarking from a bus.  Her original notice of claim, complaint, and bill of particulars were premised on the theory that the bus driver failed to lower the front of bus, causing plaintiff to fall when she disembarked.  After the note of issue was filed, plaintiff served a supplemental response to defendants’ demand for expert disclosure wherein she added an additional theory of liability, namely, that the defendants allowed her to disembark from the bus in an area that contained ice which caused plaintiff to step on ice and fall.  The plaintiff had already testified that she did not know of anything else that caused her to fall other than the height of the bus.

The defendants moved to strike plaintiff’s supplemental responses and the plaintiff cross-moved to amend her pleadings.  While courts generally allow plaintiffs to freely amend their pleadings, the Appellate Division found “where, as here, leave to amend is belatedly sought, judicial discretion should be exercised sparingly.”  Changing a theory of liability so late in the game is extremely prejudicial and as such, the lower court correctly granted defendant’s motion and denied plaintiff’s cross-motion.

While part rules in Kings and Queens County give plaintiffs ample opportunity to engage in post-note of issue discovery, it is refreshing to see a plaintiff appropriately held accountable for a tardy disclosure, which would have been prejudicial to the defendant. Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

1st Dept. Gives Plaintiff’s Dismissed Claim 2nd Chance (NY)

In Michaluk v New York City Health Andamp Hosps Corp., plaintiff brought a medical malpractice action relating to treatment received by the decedent plaintiff, at Bellevue Hospital Center between August 2010 and January 2011. Plaintiff subsequently moved to amend the notice of claim to include a cause of action for wrongful death. Ultimately, defendant New York City Health and Hospitals Corporation moved for an order striking the action for plaintiff’s failure to comply with prior court orders, including discovery obligations.

The lower court found that plaintiff willfully failed to comply with numerous discovery orders pertaining to discovery deadlines, including setting dates for depositions. After plaintiff was granted leave to file an amended notice of claim, plaintiff waited over a year before providing defendant with a verified Bill of Particulars. Additionally, plaintiff’s deposition wasn’t completed for over a year, and deposition of non-party witness was not completed until over seven months lapsed. Ultimately, the defendant’s motion to dismiss was granted for plaintiff’s failure to comply with the Court’s directives.

Finding the lower court improvidently exercised its discretion in dismissing the action for failure to comply with discovery, the First Department noted that “warnings in prior court orders that the deposition was not to be adjourned is not notice to plaintiffs that dismissal of the complaint may result should it not go forward.” Defendants failed to show that plaintiff’s failure to go forward with deposition of one doctor was willful, contumacious, or in bad faith and plaintiff’s excuse that attorney was in a motor-vehicle accident 2-weeks before scheduled deposition was reasonable.

Injured Snow Tuber Successfully Maneuvers through Summary Judgment Motions (NY)

In Jamjyan v. West Mountain Ski Club, Inc., the plaintiff was injured at a snow tubing park. She commenced this personal injury action against the defendants, the owners and operators of the tubing park, alleging that a park attendant caused the accident by prematurely unhooking the tow rope from the snow tube the plaintiff was sitting in while being towed to the top of the hill. The defendants moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of assumption of risk. The Supreme Court denied the motion, and the defendants appealed.

The Appellate Division, Second Department reviewed the facts and concurred with the lower court’s decision in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity.

Assumption of risk is not an absolute defense, but a measure of a defendant’s duty of care. Here, in opposition to the defendants’ prima facie showing, the plaintiff raised a triable issue of fact as to whether the allegedly unexpected action of the tubing park attendant, in prematurely unhooking the plaintiff’s snow tube from the tow line, created a dangerous condition over and above the usual dangers that are inherent in the sport of snow tubing.

Plaintiff also provided an affidavit from an expert stating that the defendants’ actions were not reasonable and would foresee a dangerous condition.

Thanks to Paul Vitale for his contribution to this post.

Second Circuit Highlights Importance of Preserving All Coverage Arguments for Appeal (NY)

In Harleysville v. Wesco, the Second Circuit upheld a District Court ruling that an insurance company must reimburse another insurance company for costs incurred defending and indemnifying their mutual insured.  In the underlying action, M&T, the mutual insured, was sued after delivering milk contaminated with metal filings to a client, causing extensive damage to their factory.  Wesco, who issued an auto liability policy to M&T, disclaimed coverage.  Harleysville, MT&T’s general liability carrier, assumed the defense and ultimately paid $180,000 in defense costs and $1 million in settlement.  It subsequently filed suit against Wesco, arguing it was Wesco’s policy, and not its own, covered the loss.

At the District Court level, Wesco had disputed the argument that their policy provided coverage.  On appeal, however, Wesco dropped that argument and instead asserted that Harleysville acted as a volunteer and thus could not pursue recovery under an assignment or subrogation theory.  The Second Circuit held that, while it had the authority to consider new arguments on appeal, this was not the appropriate case to do so.  Specifically, Wesco did not justify its decision to not raise the argument at the District Court level.  Further, while Wesco argued that its new argument presented a question of law, the Court could only exercise its discretion to decide purely legal issues where the resolution is beyond any doubt.  As Wesco was asking the court to essentially predict how the New York Court of Appeals would decide the issue, this was not “beyond any doubt.”  Finally, the Second Circuit rejected Wesco’s argument that no coverage exists because Harleysville failed to provide timely notice.  Under New York Insurance Law 3420(a)(5), Wesco was required to show that it was prejudiced by the late notice.  While Wesco asserted that it was prejudiced because they were unable to participate in discovery and the summary judgment briefing in the underlying action, the court held that “such a generalized assertion” is insufficient to establish prejudice under New York law.

Thus, this case highlights the importance of preserving all arguments for appeal, as well as further demonstrating the high bar insurers must clear in order to disclaim coverage based on late notice.

Thanks to Doug Giombarrese for his contribution to this post.  Please email Colleen Hayes with any questions.

Conflicting Testimony in Case Involving an Infant Warrants Denial of Summary Judgment (NY)

An infant plaintiff was injured when she fell from a chairlift at Catamount Ski Area in Hillsdale, New York. Unsurprisingly, there was conflicting testimony regarding how the accident occurred.

Many of the relevant facts are not in dispute. The infant plaintiff was four-years-old at the time of her accident. Plaintiff began taking weekly lessons with the Catamount Mountain Cats program in January 2013 and was being instructed by Sean Suydam. At that point, Suydam had been working as an instructor at Catamount for approximately four years. Suydam described the infant plaintiff as an above-average skier. Before the accident, the infant plaintiff had made two or three runs down the bunny hill before proceeding to a quad chairlift (the “lift”), which she ultimately fell from.

In Laura V v. Catamount Development Corporation, the Appellate Division, First Department affirmed a lower court decision by deeming conflicting testimony as to how an accident occurred sufficient to preclude granting Catamount’s motion for summary judgment and finding that defendants failed to prove that the doctrine of assumption of the risk applied in this case.

When she got on the lift, the infant plaintiff was accompanied by Suydam and two other young students. Sudyam got all the students in place and the chair lift began to rise. Based upon the testimony, the infant either spontaneously propelled herself forward or was pushed. Infant plaintiff believed that ‘someone like scooted by accident and then pushed me off, but not like pushed on purpose. They just scooted a bit and I just slid off under the bar.’ Suydam tried to grab the infant plaintiff, but was unable to get a good grip. Suydam was still holding the infant plaintiff for another thirty seconds before she fell 25 feet into the snow below. As a result of her fall, plaintiff sustained a broken leg.

Defendants argued that they were entitled to summary judgment because plaintiff’s fall was “an unfortunate accident”, defendants “satisfied [their] duty to make the conditions as safe as they appeared to be” and “[p]laintiff assumed the obvious risk of falling from the lift.” Further, defendants maintained that “[p]laintiff’s accident occurred only because she hopped forward in the seat just as Suydam had his arm raised to lower the safety bar.” Defendants also contended that there is no evidence that Suydam’s instruction was improper.

Plaintiffs successfully disputed Suydam’s claim as to when he allegedly lowered the bar, and further claimed that the lift operators delayed in stopping the lift, which also contributed to the accident. Plaintiffs also contended that whether the infant plaintiff could assume the risk of riding the lift is a question of fact at best, and argued that it is inapplicable to a four-year-old child.

Conflicting testimony in cases involving infants is a given.  Moreover the courts appear to bend over backwards to allow infant cases to proceed to a jury.

Thanks to Paul Vitale for his contribution to this post.

When is a Win Not a Win? (NY)

In Mitchell v Quincy Amusements Inc. (2019 NY Slip Op 00430), plaintiff sought to recover for personal injuries sustained from a slip and fall on popcorn oil present on the floor of one of the auditoriums in defendant’s multiplex theatre. Plaintiff did not realize she was injured until the movie was over and she realized she was having difficulties rising from her seat.

After the trial was completed, the jury rendered a verdict finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries. The plaintiff then moved to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the motion and thereafter entered judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appealed from the judgment.

The Second Department Appellate Division found that the issues of negligence and proximate cause were so inextricably interwoven, that the jury’s finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries, could not have been reached on a fair interpretation of the evidence. The plaintiff, and her friend who accompanied her on the day of the accident, both consistently testified that the plaintiff slipped and fell on an oily substance on the floor of the auditorium, and the defendants failed to submit any evidence to refute this testimony. Accordingly, the plaintiff’s motion to set aside the jury verdict should have been granted.

The case illustrates that certain fact patters almost require appellate practice before either side can discuss resolution.

Thanks to Meg Adamczak for her contribution to this post.

Lowering the Bar? (NY)

The Appellate Division, Second Department, recently took up the issue of whether a plaintiff involved in a motor vehicle accident may recover damages for lost earnings despite failure to prove a serious injury as defined by Insurance Law § 5102(d).

In Gore v. Cardany 2018 NY Slip Op 08632 (2d Dep’t 2018), plaintiff was rear-ended by the defendant while stopped at a red light. Plaintiff then commenced an action to recover damages for personal injuries allegedly sustained to his neck, back and left shoulder. At the time of the accident, plaintiff was in the course of his employment as a bus driver, and sought additional damages for past and future lost earnings in light of his inability to work following the accident. Plaintiff was granted summary judgment on the issue of liability and the case proceeded to trial on the issue of damages.

A Westchester County jury found that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law § 5102(d), awarding him nothing at all for pain and suffering. Despite concluding that plaintiff had not sustained a serious injury, however, the jury awarded plaintiff for past lost earnings in the amount of $156,000 and future lost earnings in the amount of $750,000 (over 15 years.) Defendant thereafter moved to set aside this portion of the jury verdict. The trial court agreed, setting aside the verdict as to all damages.

On appeal, the Appellate Division reinstated the award for past lost earnings in the sum of $156,000, finding that plaintiff had established these damages with “reasonable certainty,” and as such, plaintiff had satisfied his burden of proof (see Lodato v. Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris V City Of New York, 2 AD3d 782, 784). Relying on provisions of the Insurance Law, the Court held that “a plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law §5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a].” (Internal citations omitted). Thus, plaintiff’s own testimony that he had been unable to work because of the injuries sustained in the accident, together with submission of his W-2 forms, was sufficient to meet his burden of proof. By contrast, plaintiff failed to provide any competent medical evidence that he would be unable to perform any work in the future, and therefore failed to prove his damages for future lost earnings with the required reasonable certainty. Nevertheless, plaintiff was permitted to recover $156,000 for lost earnings despite failure to prove that he had sustained a serious injury under the Insurance Law.

Thanks to Tyler Rossworn for his contribution to this post.

General Notice of Frequent Occurrence Not Sufficient to Show Actual Notice of Current Transitory Spill (PA)

In Karten v. Shop Rite the plaintiff claimed that she slipped and fell on some debris that was dark, slippery and smelled of rotten banana on the main walkway of the parking lot as she was leaving a Shop Rite grocery store.  The plaintiff sustained injuries to her knee, ankle and lower back, and filed suit for negligent maintenance of the premises.  Defendants moved for summary judgment, arguing that the store had no actual or constructive notice of the spill.

In opposition to the motion, the plaintiff argued that the substance that caused her to fall constituted a dangerous condition of lasting duration.  Plaintiff further argued that Shop Rite had actual notice of a dangerous condition because it had received general complaints regarding debris near the parking lot garbage cans.  However, the Court found that general notice of a frequent occurrence was not sufficient to show actual notice of a current transitory spill.  The Court, in concluding that the substance amounted to a transitory spill, found no evidence of actual notice to the store of the banana’s presence, and concluded that a jury would have to resort to improper speculation.

In the alternative, plaintiff complained that Shop Rite failed to produce information regarding a store employee and the surveillance film of the incidence.  However, the Court found that the plaintiff manufactured these issues solely for the purpose of opposing summary judgment, as they were never pursued by the plaintiff within the discovery period.  Further, the Court found that the allegations in plaintiff’s opposition to summary judgment contradicted her prior pleadings and deposition testimony.

In granting summary judgment, the Court found that Pennsylvania law did not support the presumption that damaged debris served as sufficient circumstantial proof for the duration of a transitory spill, and concluded that the plaintiff failed to meet her burden of establishing constructive notice.  Therefore, summary judgment was granted in favor of Shop Rite.

Thanks to Alexandra Perry for her contribution to this post.