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.

Translation Dispute and Hearsay Testimony Precludes a Finding of a Question of Fact in Labor Law Case Resulting in Summary Judgment for Plaintiff (NY)

In Nava-Juarez v Mosholu Fieldston Realty, LLC, the Appellate Division reversed a Supreme Court decision and granted partial summary judgment to the plaintiff in a Labor Law case, and addressed the issue of hearsay testimony in opposition and translation disputes.

The plaintiff claimed he was injured when the ladder he was working on shifted suddenly.  In support of his summary judgment motion, the plaintiff provided an affidavit of a coworker who witnessed the accident and averred that plaintiff was painting the exterior facade of defendant’s tavern when his ladder shifted, causing plaintiff to fall from his position three-quarters of the way up the ladder.

In opposition, the defendants argued that a workers compensation form contained statements from the plaintiff with a different version of how he was injured.  The plaintiff’s workers compensation form stated the accident happened “while walking I fell down stairs.”

The Supreme Court Bronx County denied the plaintiff’s motion for partial summary judgment under Labor Law § 240(1).  On appeal, the Appellate Division reversed this ruling.  In its opinion, the Appellate Division held that the defendants failed to raise a triable issue of fact because hearsay, standing alone, is insufficient to defeat summary judgment.

Further, the Court noted that the workers compensation form was prepared by plaintiff’s worker’s compensation attorney with the aid of a translator.  Plaintiff testified that he told the translator “Mientras estaba trabajando me cai de una escalera,” and asserts that the statement should have been translated as “While working I fell off a ladder.”  The decision notes that the Spanish word “escalera” may be translated as either “stairs” or “ladder” and in this case, there were no “stairs” to speak of as the premises is a one-story building and did not have an exterior staircase.   The Appellate Division ruled that the plaintiff was incapable of discovering the error in the translation of the description of his accident because he could not read English and correct the statement.

The summary judgment denial was reversed because the defendants were obligated to show that plaintiff was the source of the information recorded in the workers compensation form indicating that he fell from “stairs,” and that the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand at trial.

Special thanks to George Parpas for his contribution to this post.

It’s Not Enough Just to Prove Negligence – Causation is Key (PA)

On December 7, 2018, the Superior Court of Pennsylvania reversed a grant of post-trial relief in favor of plaintiff in Koziar v. Rayner.  

The case stems from a slip-and-fall which occurred on the property of Neal and Andrea Rayner.  Koziar worked as a house cleaner for the Universal Group, and was assigned to clean the Rayner’s home. She and her co-workers finished cleaning between 7:00 pm and 7:15 pm and proceeded through the laundry room of the house into the attached three-car garage.  She testified she was unfamiliar with the area and that she fell and injured her ankle on a lip while exiting the garage.  However, she provided conflicting stories of her accident to her treating physician all of which was documented in his reports.

At trial, the Rayner’s argued that the alleged “lip” between the garage apron and garage floor was in good condition and that they were not negligent. After hearing testimony from both parties, the jury returned a verdict that the Rayner’s were negligent, but their negligence was not a factual cause of the harm to Koziar. 

Following the verdict, Koziar filed a motion for post-trial relief which was granted as the trial court determined that once the Rayner’s were deemed negligent and only Koziar’s uncontested medical evidence was presented, the jury’s finding thatthe Rayner’s were not the factual cause of Koziar’s injuries defied logic.

As such, the Rayner’s appealed arguing that, while theyconceded that Koziar suffered an injury based on the medical evidencepresented, they did not concede that their negligence was the factual cause ofKoziar’s injury.  In reversing the trial court’s grant of post-trial relief, the court indicated that the fact that there was uncontroverted medical evidence does not relieve the plaintiff from proving that the negligence of the Rayner’s caused Koziar’s injuries.  The court noted that Koziar provided multiple accounts of how she fell and the jury could have found one or more of them credible.  Therefore, the jury’s verdict did not defy logic, but the trial court’s grant of post-trial relief in this matter certainly did.  Every element of negligence must be proven and there’s no short-cuts if there’s negligence and damages but no causal connection.

Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Plaintiff’s Claim Dismissed After Counsel Ignores Court Order (NY)

In Soto v Chelsea W26, LLC (2018 NY Slip Op 08170), the Appellate Division sent a message that cursory excuses for disregarding Court Orders or opposing motions will not be tolerated.

The plaintiff, Missael Soto, filed a lawsuit alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence. In April 2015, the defendants served an Answer and initial discovery demands.  In November 2015, a preliminary conference was held in Queens County Supreme Court, with an Order issued, directing the plaintiff to serve a Bill of Particulars within 30 days.  The plaintiff did not comply, and six months later, in May 2016, two separate Court Orders required the plaintiff to serve a Bill of Particulars and responses to the initial discovery demands on the defendants.

In June 2016, the defendants moved pursuant to CPLR 3126(3) to strike the complaint based upon the plaintiff’s failure to produce a Bill of Particulars and responses to the combined discovery demands. The plaintiff did not file any opposition to this motion.  As such, by Order entered November 7, 2016, the Supreme Court granted the defendants’ unopposed motion pursuant to CPLR 3126(3) to strike the Complaint.

Then, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the Order striking the Complaint, arguing that a law office failure resulted in the per diem attorney hired to cover the motion appearance, failing to appear in Court. But the Supreme Court denied this motion, resulting in the plaintiff appealing this decision to the Appellate Division, Second Department.

The Appellate Division affirmed the denial.  To vacate an order, the plaintiff must 1) demonstrate both a reasonable excuse for the default and 2) a potentially meritorious opposition to the motion. The Appellate Division took issue with the first prong of this standard, the reasonable excuse.   Regardless of whether the firm’s per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff’s attorney made a conscious decision to send a per diem attorney on the motion’s return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition.  Plaintiff’s attorney’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse.  The Appellate Division affirmed the Supreme Court’s denial of plaintiff’s motion to vacate the Order striking the Complaint.  Thanks to George Parpas for his contribution to this post.  Please email Brian Gibbons with any questions.

Appellants’ Failure to Object at Trial Costs Them Appeal (PA)

The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the amount of damages awarded by the jury’s verdict.  In Showers v. Sam’s East, Inc., PA Superior Court No. 810 EDA 2018, appellants, who were plaintiffs in the underlying case, filed an appeal challenging the amount of damages awarded by the jury.

In the underlying case, Plaintiff Donyale Showers sued Sam’s East, Inc. after she slipped and fell on a wet floor at the Sam’s Club in Exton, PA.  Showers complained of right leg and knee pain, however she continued to shop.  A few days after the fall at Sam’s Club, Showers was walking with her husband when her right leg gave out causing her to fall and hit her right knee.  She underwent arthroscopic surgery for a torn meniscus.

At trial, her treating doctor testified that her torn meniscus was caused by both falls – the one at Sam’s Club and the subsequent fall following her walk.  Sam’s Club countered by putting forth defense expert testimony opining that Showers’ injuries were not causally related to her fall at Sam’s Club.  The jury found that both Sam’s Club and Showers were 50% negligent and awarded Showers $7,481.40 in damages; which equaled the total amount of medical costs claimed by Showers.

Showers appealed and argued that the court erred and abused its discretion by failing to submit to the jury a verdict slip that included separate damages categories for medical expenses, loss of consortium, and pain and suffering.  Showers argued that, at a charging conference prior to deliberation, they submitted a proposed verdict slip that delineated damages for both medical expenses and pain and suffering.  The court denied their request, and therefore Showers alleged that there was no way to determine whether the jury’s damage award is solely for medical expenses or also included an award for pain and suffering.

Upon review, the PA Superior court noted that Showers did not produce any record of the charging conference and therefore no evidence of any objection made regarding the final verdict sheet during the conference.  Additionally, Showers did not object to the final verdict sheet form during trial proceedings and also consented to the trial court’s jury instructions when they were given.  Thus, the first instance of Showers’ objection to the verdict sheet appeared in their post-trial motion.  Because there is no record of Showers objecting to the final verdict sheet either at the charging conference or during the trial proceedings, the PA Superior Court concluded that Showers had waived such objection.

It is often said that trial objections are like flags — they are either raised or “waived.”  Here, by failing to preserve her objection to the final verdict sheet, the plaintiff waived that objection, and the modest verdict stands.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

WCM Wins Rare Defense Verdict in Hit in the Rear Accident Trial

After a three day trial in Supreme Court, New York County, Wade Clark Mulcahy’s Michael Bono and Dana Purcaro obtain a rare defense verdict on liability in a hit in the rear accident case in Smyth v. Murphy, Index number 157795/2013.

Plaintiff testified to being involved in at least ten on the job accidents spanning over two decades. In each accident, plaintiff injured his cervical and lumbar spine and received medical treatment for those injuries, often filing related lawsuits.

Defendant Murphy testified that on the date of the accident, she tapped Smyth’s sanitation vehicle in the rear while he was stopped at a yellow light on the West Side highway during light snowfall. There was one scratch on Mrs. Murphy’s vehicle and no evidence of any damage to plaintiff’s vehicle. Despite the light impact, plaintiff called an ambulance and was taken to the hospital for treatment of his long standing cervical and lumbar spine injuries.  Sometime later, plaintiff underwent cervical and lumbar surgeries by Dr. Lattuga.

During the trial, the defense raised a number of credibility issues, including the apparent failure of plaintiff to inform his physicians about the number of prior accidents he had been involved in, including multiple accidents close in time to the 2013 accident at issue.  In addition, the defense presented proof that a prior MRI scan was the same as a scan taken shortly after this accident.  After brief deliberations, the jury returned a  verdict in favor of the defendants.  Please write to Mike Bono if you have any questions or wish to discuss this case further.

The Espinal Defense and Plaintiff’s Pleadings (NY)

When defending a contractor, understanding what plaintiff’s pleadings fail to allege can allow one to prove the contractor’s entitlement for summary judgment even when affirmative evidence that negates the contractor’s duty to a non-contracting plaintiff does not exist.  In Cayetano v. Port Authority of New York and New Jersey, 2018 WL 5624037, 2018 N.Y. Slip Op 07285 (2nd Dep’t October 31, 2018), the plaintiffs, employees of American Eagle Airlines, Inc., slipped and fell on ice that accumulated near Gate C5 at LaGuardia Airport.  The plaintiffs commenced an action against the snow removal company, CTE Incorporated, among others.  CTE moved for summary judgment, and was denied, upon which they appealed.

As CTE was a contractor who did not contract with the plaintiffs, CTE would normally not owe the plaintiffs a duty of care unless the three Espinal exceptions applied, which are (1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.

The Court ruled that CTE established its prima facie entitlement to summary judgment by showing evidence that plaintiffs were not parties of the on-call snow removal agreement, and that, therefore, they did not owe them a duty of care.  Importantly, the Court ruled that CTE were not required to affirmatively demonstrate that the Espinal exceptions do not apply when the plaintiffs failed to pled facts that would establish their applicability.

In opposition, plaintiff failed to raise a triable issue of fact regarding the instrument of harm exception, as CTE only plowed three days prior to the accident, and thus, claiming that they caused the thawing and refreezing of snow would be merely speculative.  Additionally, the plaintiffs failed to show that they detrimentally relied on CTE’s continued performance of their contractual duties.  As such, the Second Department reversed the lower court’s decision, ruling the CTE’s motion for summary judgment should have been granted.

This case shows how important it is to analyze the pleadings in contractor cases as plaintiffs’ own pleadings, by not including facts that establish the Espinal exceptions applicability, may make establishing the prima facie burden for entitlement to summary judgment easier.  This allows experienced counsel to move for and win summary judgment in cases where evidence may initially seem lacking.

Thanks to Jonathan Pincus for his contribution to this post.

Obscured Open and Obvious Condition May Be a Trap for the Unwary (NY)

Plaintiff tripped and fell on a “hump” on a baseball field in the Town of Smithtown and injured himself as he was attempting to move through the entrance of the field. This “hump” was caused by the Town’s installation of a drain, which was covered with asphalt. This hump extended to the area between the players’ benches and the entrance to the field on the third base side.

Plaintiff sued the Town of Smithtown in Suffolk County Supreme Court. Smithtown moved for summary judgment, contending that the condition of the hump was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiff appealed.

In Dillon v Town of Smithtown, the Appellate Division confirmed the duty of landowner is to maintain its premises in a reasonably safe condition.  And the Appellate Division confirmed that an exception to this duty exists when there is an open and obvious, and not inherently dangerous condition.  Further expanding on the “open and obvious” principle, the Appellate Division held that a condition that is ordinarily apparent to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Applying that distinction to the facts of this case, the appellate court found that the Town failed to prove that the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident.  In reversing the Supreme Court’s summary judgment decision the court highlighted plaintiff’s testimony that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump.

The case highlights the reality that certain defenses, such as the open and obvious defense and other issues of fact need to be resolved by appellate courts, rather than the trial courts. Litigators presented with such issues should be prepared at an early stage to be mindful of the possibility of appellate practice.

Thanks to George Parpas for his contribution to this post.

Supplemental Bill of Particulars Not an Unusual or Unanticipated Circumstance (NY)

In Drapper v Horan, 2018 WL 4623041, 2016 N.Y. Slip Op. 06330 (1st Dep’t September 27, 2018), the First Department affirmed a lower Court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff despite the service of a supplemental bill of particulars for new treatment relative to a traumatic brain injury.

Plaintiff in this matter stated that he suffered injuries, including a traumatic brain injury, when the car he was driving was rear-ended by the defendants.  Following plaintiff’s disclosures that he was suffering headaches and that an MRI of his head revealed traumatic injury, plaintiff filed a note of issue.  Defendants, thereafter failed to notice a physical examination, and then filed an untimely motion to vacate, which was denied.

Prior to trial, plaintiff filed a supplemental bill of particular that stated plaintiff received additional medical treatment for his traumatic brain injury.  Thereafter, defendants renewed their motion to vacate and compel plaintiff to appear for a medical examination.

The defendants failed to offer an excuse why they originally failed to notice a medical examination before the note of issue was filed, and also failed to demonstrate how the additional treatment was an “unusual or unanticipated circumstance” to warrant vacatur and a medical examination. As such, the 1st Department affirmed the lower court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff.

Although this case leaves open the possibility of further discovery after a supplemental bill of particulars is made prior to trial, this case is also an example of why experienced defense counsel do not rely on curing their missed deadlines based on later filings, but make sure to adhere to discovery and motion deadlines.  Both, failing to timely notice a medical examination and timely file a motion to vacate a note of issue can be detrimental to defending the case and difficult, if not impossible, to cure prior to trial.

Thanks to Jonathan J. Pincus for his contribution to this post.

Bronx Jury’s Verdict Underscores the Value of Independent Medical Examinations (NY)

In a recent decision by the First Department, the Appellate Division took up the issue of whether it was proper for a Bronx jury to have declined to award any pain and suffering damages in a motor vehicle accident case where the plaintiff had already been granted summary judgment on the issue damages.

In Stanford v. Rideway Corp, 2018 NY Slip Op 03453, plaintiff was a rear-seated passenger in a taxi which was involved in a two-car accident on Manhattan’s FDR Drive. Plaintiff thereafter commenced a lawsuit against the drivers of both vehicles, alleging serious injuries to her cervical and lumbar spine. Plaintiff ultimately moved for summary judgment on the issue of whether she sustained a serious injury under Insurance Law Section 5102. The Court granted plaintiff’s motion, and at the time of trial, the jury was instructed that as a matter of law, plaintiff had “sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.” In spite of that instruction, defendants claimed that plaintiff’s injuries were minimal and were unrelated to the accident, relying on the testimony of their expert orthopedic surgeon, who had performed an independent medical examination of the plaintiff. Contrary to the Court’s instruction, defendant’s expert had failed to find any objective evidence of injury to plaintiff’s neck or back, concluding that her lumbar and cervical spine were normal, and that she was not prevented from taking part in any activities.

After deliberating, the jury elected to award no damages at all for pain and suffering. That verdict was upheld by the Appellate Division, which determined that plaintiff’s evidence as to her pain and suffering was “not compelling,” and that a jury could reasonably have found that plaintiff’s claims were inconsistent with the objective medical findings of defendant’s expert orthopedic surgeon.

The court found that plaintiff’s counsel, apparently very creative at the summary judgment stage of the litigation, waived any argument that the jury’s verdict was inconsistent when counsel failed to object to the contents of the jury’s verdict sheet during the charge conference.  Had it not been for the defense’s expert presentation, the science would have gone unopposed and a pain and suffering award would have been awarded.

Thanks to Tyler Rossworn for his contribution to this post.