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.

Plaintiff’s Death, before his Deposition, also Fatal to His Estate’s Cause of Action (NY)

The death of a plaintiff can be devastating to that decedent’s cause of action — especially where the decedent dies before being deposed, as in Thompson-Shepard v. Lido Hall Condominiums.  This 2019 First Department decision granted defendant’s motion for summary judgment because there was no way for the cause of plaintiff’s un-witnessed accident to be surmised.

Decedent was allegedly injured when he fell on the stairs at defendant’s premises.  His pre-deposition death, unrelated to the unwitnessed fall, precluded plaintiff’s estate from asserting a conclusive the cause of the accident.

Plaintiff attempted to remedy this defect by submitting an expert affidavit claiming that the irregular and excessive riser heights coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser showed that the defective riser heights caused decedent’s accident.  The court found that the expert failed to raise an issue of fact as there was no witness to link the claimed defect to decedent’s accident as there was no sworn statement or testimony by decedent claiming he fell due to riser height.

It is crucial to remember in trip and fall cases that a plaintiff’s cause of action hinges on the cause of the accident.  When plaintiffs are unable to conclusively determine what caused them to fall, there is no way for defendants to be on notice.  As a practice point, locking in inconclusive testimony as to proximate cause is fatal to a plaintiff’s negligence action.   Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Forman Decision Cited by First Department in Allowing Defendant’s Expert Access to Plaintiff’s Social Media (NY)

Last year, Wade Clark Mulcahy won a significant victory, both for our client and for the defense bar in general, in Forman v. Henkin In a unanimous reversal of the underlying First Department decision, the Court of Appeals held that a plaintiff’s social media posts are discoverable, so long as the defendant demonstrates some need for the materials therein.  The Court of Appeals held that social media relevancy trumps privacy interests, which thereby created new law in New York, and a new means for defendants to gauge plaintiffs’ damages claims.

Since the Forman decision in February 2018, we have been keeping tabs on how the various appellate divisions have been applying the new law.   Last week, the First Department not only followed Forman, but actually broadened a defendant’s rights, in Vasquez-Santos v Mathew.  The plaintiff in that case claimed an injury, and defense counsel became aware of photos of plaintiff playing basketball, which were posted on social media after the accident.  Plaintiff testified that even though the photos were posted after the accident, they had actually been taken before the accident, and therefore, were not relevant to damages.

Defense counsel wasn’t buying plaintiff’s account, and although counsel’s motion to compel was denied at the trial level, the First Department wasn’t buying it either.  The First. Department unanimously reversed the trial court, citing cited Forman in its decision.   The Court took the additional step of granting defendant access, through a third-party data-mining company, to plaintiff’s devices, email accounts, and social media accounts, to assist in defendant’s damages evaluation.

The fact that Forman is being followed and even broadened — particularly by the First Department — is welcome news for the defense bar, and illustrates the significance of WCM’s victory at the Court of Appeals last year.  Please call Mike Bono or Brian Gibbons with any questions about the Forman decision, and its impact on personal injury litigation.

Police Escort in Funeral Procession Does Not Trigger “Emergency Doctrine” Defense (NY)

In State Farm v. County of Nassau, State Farm sought recovery for property damage as part of a subrogation claim, where its insured driver, Licata was driving when he came to a full stop at a “T” intersection. There was bumper to bumper traffic on both his right and left due to a funeral procession. After looking in both directions he started to make a left hand turn. During his turn, he was struck by a police car. Mr. Licata said that the police car did not have its siren or lights on. The police officer contradicted this account. He stated that he had his lights and sirens on because he was proceeding from the back of the funeral line to the front to help escort the vehicles through the intersection.

The court was presented with the question of whether the negligence or reckless disregard standard applied. The court held that no emergency existed when the police officer was escorting the funeral procession. Therefore, the ordinary negligence standard applied. The court noted that the police officers testimony was extremely credible and that they believed him when he said he had his siren and lights on prior to the impact. Unfortunately, for him it did not matter.

The takeaway from this case is a simple one. Not every time an officer has his or her lights and sirens on will it automatically be considered an emergency situation. It is going to depend on the specific facts and circumstances of the occurrence. Here, the court made it clear, a police officer escorting a funeral procession is not considered an emergency.

This case also has a thorough and interesting analysis pertaining to issues of law (applicability of emergency doctrine) and issues of fact (apportionment of fault.)   Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

Howdya Like Them Apples? (NY)

What’s worse than finding a worm in your apple?  Finding half a worm in your apple.  (Wait for laughter.)

Speaking of apples, apple-picking has become a common autumn activity, when orchards convince people to pick their own apples while taking in the ambiance.  But legal principles still obviously apply to orchard-owners and invitees.

A landowner’s duty to maintain property does not include warning or protecting from “open and obvious” conditions that are not inherently dangerous. In the event that there is a concealed or dangerous condition, the landowner then is required to warn of that condition.

Recently, the First Department extended the scope of open and obvious and inherently dangerous in its decision on Mangiafridda v. Masker Fruit Farms, Inc., App. Division 1st Dept. (Jan. 3, 2019)(not yet reported). In Mangiafridda, plaintiff was apple picking at defendants apple orchard when she tripped and fell due to a sloped and rocky roadway on the premises. The defendant moved for summary judgment arguing that the condition of the roadway was open and obvious, inherent in the nature of an apple orchard and that plaintiff could have reasonably anticipated that the roadway would not be smooth.

The lower Court granted the defendants motion and the Appellate Division affirmed. The Court found that not only was the roadway open and obvious but the defendant also posted warning signs regarding the sloped and rocky roadway. The Court found that the defendants did not have a duty to warn or protect of the condition, but even if they did, they met that duty by posting warning signs.

This decision diverges from the typical caselaw on this topic in that the Court found that the condition was “inherent to an apple orchard” not that it was “not inherently dangerous” which the typical standard is when assessing a property owner’s duty as it pertains to an open and obvious condition. This distinction, while slight, opens the door for defendants to argue that a condition is not dangerous if it is one that is “inherent to the location” of the accident and could have been anticipated to be present by the plaintiff. This distinction could be helpful to defendants where accidents occur due to inherent conditions or in typically dangerous circumstances.

Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Eight (Years) is Enough — Plaintiff’s Delinquent Discovery Finally Prompts Dismissal (NY)

As every litigator is well aware, particularly in New York, the wheels of justice tends to turn slowly.  This concept was never more apparent than in the case of Harris v. Kay.  This 2019 First Department decision has a 2006 index number.  Plaintiff appealed from a 2017 order granting defendant’s motion to strike the complaint.  The Appellate Division found the trial court did not abuse its discretion in striking the complaint given plaintiff’s repeated, willful and contumacious refusals to provide discovery and comply with court orders over EIGHT years.

This decision goes to show the level of leniency courts grant plaintiffs before entertaining the sanction of dismissal.  Plaintiff’s response to defendants’ first set of interrogatories were served SIX years after the initial demands were made and the response failed to show a good-faith effort to address the requests meaningfully.  It is a point of great frustration for defendants when plaintiff’s initiate lawsuits and then fail to prosecute and it takes years of good faith letters and motion practice, only to get an inadequate response.  While this decision gives plaintiffs significant leeway, it is heartening to know there are limits to a court’s generosity.  Let’s hope more judges make the resolution to keep more stringent discovery schedules!

The salient point for defendants is simple — when plaintiffs fail to adhere to discovery orders, document those failures by publishing letters to the plaintiff.  The more failures documented, the more persuasive the eventual dismissal motion will be.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Bar Fight Liability: Taking it Outside (NY)

In Covelli v Silver Fist Ltd., 2018 NY Slip Op 08914 (2nd Dep’t December 26, 2018), the plaintiff, an administrator of a decedent’s estate, commenced an action against an individual, Roll, and bar defendants to recover damages for negligence and wrongful death.  Plaintiff’s decedent died from injuries sustained as a result of an altercation with Roll in the public street outside the bar.

The Second Department ruled that it is uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, where defendants had the opportunity to supervise intoxicated guests and that a landowner, not being insurers of a visitor’s safety, have no duty to protect visitors against unforeseeable and unexpected assaults.

Here, as the altercation was outside the premises and control of the bar defendants and was a sudden and unforeseeable event, the lower Court’s order granting the bar defendants motions for summary judgment dismissing the complaint was affirmed. There was no comment regarding the irony of the bar’s name.

This case is of particular interest in that it allows the bar defendants off the hook for liability even when the altercation occurred right outside the bar.  However, although a beneficial opinion towards the defense bar, experienced defense attorneys will be cautious when using this case in similar bar fight scenarios as this opinion appears to show no evidence of the altercation brewing inside the bar before stepping outside.  In cases where evidence is present where the altercation starts developing in the bar it may be more difficult to as clearly differentiate when the bar’s duty to prevent the altercation starts.

Thanks to Jonathan Pincus for his contribution to this post.