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Late Notice of Claim Allowed.

The Second Department allowed plaintiff to serve a late notice of claim against the defendant School District because: (1) the School District was made aware of the facts constituting the claim within the 90-day statutory period (shown by a medical claim completed by the school principal); (2) there was a reasonable excuse for the delay (mother was unaware of the severity of the child’s injury and had relied on the School District’s prior willingness to pay for the child’s medical treatment); (3) there was no prejudice to the School District’s ability to defend the action.  In the Matter of Funkhouser v Middle Country Central School District, et al, 2011-08142, Index No. 2333/11 Second Dept. 1-9-13.

 

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Assault in Medical Facility, Spoliation of Evidence.

Plaintiff, a patient at defendant medical center, was assaulted by another patient.  Shortly after the incident plaintiff’s attorney sent a letter to the medical center asking that it preserve all records of the incident, including videotape.  The letter was apparently never forwarded to the defendant’s risk management department and any videotape of the incident was overwritten in the ordinary course of business.  The trial court, pursuant to CPLR 3126, sanctioned the defendant by striking the defendant’s answer “to the extent of precluding the defendant from introducing evidence at trial that the alleged perpetrator was being supervised by its employees at the time of the incident.”  The Second Department discussed the sanctions available for spoliation of evidence and held that, because the plaintiff was not prevented from establishing her case by the spoliation, the imposed sanction was too harsh.  The appropriate sanction was an adverse inference charge to the jury.  Jennings v Orange Regional Medical Center, 2012-00209, Index No. 5601/10 Second Dept. 1-9-13

 

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Medical Malpractice Against Hospital, No Need to Name Individual Doctors.

In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital.  Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13

 

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Primary Assumption of Risk Jury Charge Required Reversal.

The Second Department reversed the trial court’s dismissal of a personal injury complaint after a “no cause” verdict.  The plaintiff’s daughter was a 14-year-old pitcher on a school softball team.  During practice, she was instructed to pitch from a position closer to the plate than the pitching mound.  A so-called “L-screen,” a protective pitching screen, was used.  But the screen was not properly supported and kept falling down. At some point, the pitcher was instructed by the coach to keep pitching even though the screen was down.  The pitcher was then struck and injured by a “line drive” hit by the batter.  The trial court submitted the “primary assumption of risk” charge to the jury which states that a participant in a sport consents to the usual risks associated with the sport.  The Second Department ruled that whether to apply the primary assumption of risk theory is an issue of law for the court, not the jury, and therefore the jury should not have been instructed on it. There is a substantive discussion of the doctrine of primary assumption of risk and the reasons the doctrine did not apply to the facts of the case.  The Second Department went on to say that the evidence raised a question of fact about whether the pitcher impliedly assumed the risk of pitching in the absence of the screen.  Therefore, at the new trial, the jury should be instructed on the implied assumption of risk, as well as comparative negligence.  Weinberger v Solomon Schechter School of Westchester, 2010-05992, 2010-10382, Index No. 10087/08 Second Dept. 1-9-13

 

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Waiver of Appeal Invalid, Sentence Excessive.

Defendant’s right to appeal was not knowingly, voluntarily, and intelligently waived—it was not established that defendant was aware the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty.  Defendant’s sentence was deemed excessive.  The sentence was reduced in the interest of justice in light of defendant’s age, the mitigating facts of the case and defendant’s lack of a juvenile record (youthful offender). People v Maria M. 8726 Ind. 1563/10 First Dept. 1-3-13

 

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Pat-Down Search Justified by the Objective Existence of Probable Cause to Arrest, Even Though the Officer Did Not Intend to Arrest at the Time of the Search.

In a full-fledged opinion by Justice Saxe, the First Department determined that a pat-down search was justified because probable cause for arrest existed (for DWI) even though the officer did not intend to arrest the defendant, whom he had just directed to step out of his car, at the time of the search.  The Court wrote:

This appeal addresses whether suppression should have been granted where the police stopped defendant’s car for a traffic infraction, and, based on what the arresting officer heard and observed, defendant was asked to exit the car and patted down; he was placed under arrest only after a knife was found in his pocket.  Because the arresting officer candidly admitted that he had not intended to arrest the driver before discovering the knife, defendant contends that the officer lacked the requisite predicate for the search and that therefore we must suppress the knife and other fruits of the search that followed.  We disagree.

The arresting officer’s factual testimony … established that the necessary predicate existed for each step taken by the officer.  Because … we find that at the time of the patdown the officer actually had probable cause to arrest defendant for driving while intoxicated, the search was permissible and the fruits of the search were admissible.  While we rely on the factual testimony of the arresting officer, we are not bound by his subjective assessment at the time regarding the nature and extent of his authority to act. *  *  *

…[W]e conclude that, even if the police are incorrect in their assessment of the particular crime that gives them grounds to conduct the search, or if they incorrectly assess the level of police activity that is justified by their knowledge, where the facts create probable cause to arrest, a search must be permissible.  People v Reid, 7360 Ind. 717/09 First Dept. 1-3-13.

 

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