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GOLFER ASSUMED THE RISK OF SLIPPING ON A WET RAILROAD TIE WHICH LINED A PATH ON THE GOLF COURSE.

The Second Department, reversing Supreme Court, determined plaintiff golfer assumed the risk of slipping on a wet railroad tie which lined a path on the golf course:

 

Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played … .

“[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . Moreover, “[i]t is not necessary to the application of assumption of risk that the injured plaintiff [had] foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . While participants are not deemed to have assumed the risks of concealed or unreasonably increased risks … , if “the risks are fully comprehended or obvious and the plaintiff has consented to them, the defendant has satisfied its only duty of care which is to make the conditions as safe as they appear to be” … . Bryant v Town of Brookhaven, 2016 NY Slip Op 00323, 2nd Dept 1-20-16

 

NEGLIGENCE (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURSE PATH)/ASSUMPTION OF RISK (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURS PATH)

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JURY CONFUSION, STEMMING FROM THE WORDING OF THE SPECIAL VERDICT SHEET, MANDATED A NEW TRIAL.

The First Department, in three, two-justice concurring opinions, determined plaintiff’s motion to set aside the jury verdict should have granted on “jury confusion” grounds. Plaintiff had a kidney removed for his father’s transplant procedure. A “knot pusher device” was left inside plaintiff, and he underwent a second surgery to remove it. The jury, based on the special verdict sheet, indicated leaving the “knot pusher device” inside plaintiff was not the proximate cause of his injury, but the jury sent out a note stating the plaintiff should be awarded $50,000 for having to undergo the second procedure:

 

An examination of the record reveals that the special verdict sheet was “unclear and confusing” …, because it did not provide for an award of damages caused by the need to undergo a second surgery. The confusing and ambiguous wording of the verdict sheet caused the jurors to experience substantial confusion in reaching their verdict … . While “[t]he ambiguity had been brought to the attention of the trial Justice before the jury was discharged and could have been corrected or at least clarified at that time” …, the court did not do so and a new trial  … is required to prevent a miscarriage of justice. Srikishun v Edye, 2016 NY Slip Op 00315, 1st Dept 1-19-16

 

NEGLIGENCE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/MEDICAL MALPRACTICE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT BECAUSE OF JURY CONFUSION STEMMING FROM THE VERDICT SHEET SHOULD HAVE BEEN GRANTED)/JURIES (NEW TRIAL SHOULD HAVE BEEN GRANTED DUE TO CONFUSION STEMMING FROM THE SPECIAL VERDICT SHEET)/VERDICT SHEET (CONFUSING SPECIAL VERDICT SHEET WARRANTED A NEW TRIAL)

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QUESTION OF FACT WHETHER HOTEL DEFENDANTS WERE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF A SNOWMOBILE TOUR GUIDE UNDER AN APPARENT AGENCY THEORY.

The Third Department affirmed the denial of the hotel defendants’ motion for summary judgment. Plaintiff was severely injured and her husband was killed when the snowmobile they were using was struck by a car. The hotel promoted snowmobile tours. All the arrangements for the tour were made by the plaintiffs and hotel personnel. The actual tour was conducted by Adirondack Snowmobile Rental (ASR). The tour guide, driving the lead snowmobile, crossed a road without waiting for plaintiff and plaintiff’s decedent, who were following. Plaintiff and plaintiff’s decedent were struck by a car when they attempted to cross the road. The Third Department determined plaintiff had stated a cause of action in negligence against the hotel defendants, alleging the hotel defendants were vicariously liable for the negligence of ASR under an apparent agency theory:

 

… “[I]t is fundamental to the principal/agent relationship that [a principal] is liable to a third person for the wrongful or negligent acts . . . of its agent when made within the general or apparent scope of the agent’s authority” … . To establish a negligence claim based upon an apparent agency theory, a plaintiff must show evidence of “words or conduct of the principal . . . communicated to a third party, which give rise to a reasonable belief and appearance that the agent possesses authority to [act on the principal’s behalf]” … .

Here, the evidence includes a screenshot of the resort’s website that can be read to suggest that snowmobiling is a service provided by defendants’ agents or employees, as it is listed among the winter activities available on the premises. … [P]laintiff stated that she and decedent only dealt with the resort staff in organizing the tour and had never heard of ASR prior to the tour’s commencement. Viewing this evidence in a light most favorable to plaintiff as the nonmoving party, we find that Supreme Court properly denied the portion of defendants’ motion seeking dismissal of plaintiff’s negligence claim based upon the doctrine of apparent agency. In our view, defendants’ promotional materials, together with the testimony regarding the overall experience that defendants and their staff strive to provide for guests of the resort, create a question of fact as to whether plaintiff could have reasonably believed that ASR possessed the authority to conduct the snowmobile tour as defendants’ agent … . Taylor v The Point at Saranac Lake, Inc., 2016 NY Slip Op 00247, 3rd Dept 1-14-16

 

NEGLGENCE (TORT LIABILITY ARISING FROM CONTRACT, AND INTERVENING, SUPERSEDING CAUSE OF INJURY EXPLAINED)/CONTRACT LAW (TORT LIABILITY TO THIRD PERSONS EXPLAINED)/INTERVENING, SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)/SUPERSEDING CAUSE OF INJURY (CRITERIA EXPLAINED)

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DEFENDANT, WHICH OPERATED A STUDY-ABROAD PROGRAM, OWED A DUTY OF CARE TO INJURED STUDENT; BECAUSE DEFENDANT PRESENTED NO AFFIRMATIVE PROOF ON CAUSATION IN SUPPORT OF ITS SUMMARY JUDGMENT MOTION, THE BURDEN OF PROOF ON THAT ISSUE NEVER SHIFTED TO PLAINTIFF.

The First Department, over a two-justice dissent, determined defendant synagogue’s motion for summary judgment was properly denied. Plaintiff was a participant in a study-abroad program run by defendant in Israel. She injured her knee and alleged she was prescribed physical therapy but defendant refused to provide it (delaying and compromising recovery). The First Department held defendant owed a duty of care to plaintiff because it had agreed to provide medical care and was in the best position to protect plaintiff from injury. The court noted that defendant’s attempt to place the burden on plaintiff to demonstrate a causal link between her injury and the failure to provide physical therapy must fail in the context of a defense summary judgment motion. The burden never shifted to plaintiff on that issue because the defendant did not demonstrate, through an expert affidavit, the absence of causation. [Yet another example of the need for a defendant to present affirmative proof on every relevant issue when seeking summary judgment. Without affirmative proof on a necessary issue, the burden never shifts to plaintiff.]:

 

The existence of a duty depends on the circumstances, and the issue is one of law for the court; “the court is to apply a broad range of societal and policy factors” … .

In determining the threshold question of whether a defendant owes a plaintiff a duty of care, courts must balance relevant factors, “including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” … . The parties’ relationship may create a duty where it “places the defendant in the best position to protect against the risk of harm [] and [] the specter of limitless liability is not present” … . Thus, where a defendant exercises a sufficient degree of control over an event, a duty of care to plaintiff may arise … .

Here, the parties’ relationship created a duty to provide plaintiff with the necessary medical care because not only did defendant agree to do so, it was in the “best position to protect against the risk of harm” and “the specter of limitless liability [was] not present” … . The program was not an ordinary college or study-abroad program. Indeed, the second “semester” did not take place in a university environment. Rather, it took place in Yerucham, a small town in the Negev desert, involved volunteering, and was supervised by counselors who did “[p]retty much everything,” including responding to medical issues. Under the circumstances, defendant exercised a sufficient degree of control over the program to create a duty of care to plaintiff … . Katz v United Synagogue of Conservative Judaism, 2016 NY Slip Op 00094, 1st Dept 1-12-16

 

NEGLIGENCE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/DUTY OF CARE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/EVIDENCE (DEFENDANT DID NOT PROVIDE AFFIRMATIVE EVIDENCE OF ABSENCE OF CAUSATION IN ITS SUMMARY JUDGMENT MOTION, BURDEN ON THAT ISSUE NEVER SHIFTED TO PLAINTIFF)/SUMMARY JUDGMENT (DEFENSE MOTION FOR SUMMARY JUDGMENT MUST SUBMIT AFFIRMATIVE PROOF ON ISSUE OF CAUSATION OF INJURY, ABSENT AFFIRMATIVE PROOF BURDEN NEVER SHIFTED TO PLAINTIFF ON THAT ISSUE)

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SUIT ALLEGING TOWN AND COUNTY NEGLIGENTLY ISSUED PERMITS FOR A FESTIVAL WITHOUT MAKING SURE EMERGENCY MEDICAL SERVICES WERE ADEQUATE DISMISSED ON GOVERNMENTAL-IMMUNITY GROUNDS.

The Third Department, reversing Supreme Court, determined the town’s and county’s motions for summary judgment should have been granted on governmental-immunity grounds. Plaintiff’s daughter, Bynum, ingested a harmful substance at a music festival. Plaintiff sued the town and county alleging they negligently issued the permits for the festival without making sure there were adequate emergency medical services to accommodate the crowd. The Third Department held the town and county were immune from suit because the issuance of permits is a governmental function and plaintiff did not demonstrate a special relationship between Bynum and the town or county:

 

Where, as here, a municipality engages in a quintessential governmental function such as the issuance of permits, even if it does so negligently, the municipality is immune from liability unless it owed “a special duty to the injured person, in contrast to a general duty owed to the public” … . As relevant here, to prove a special duty to Bynum, plaintiff must establish “[t]he elements of a special relationship includ[ing] . . . direct contact between the municipality’s agents and [Bynum], and [Bynum’s] justifiable reliance . . . on the municipality’s affirmative promise to act” … .

Viewing the pleadings and submissions in the light most favorable to plaintiff and providing her with every favorable inference … , we must agree with defendants that plaintiff’s complaint and bill of particulars are devoid of factual allegations that Bynum had any direct contact with defendants, or that she relied upon any affirmative promise that defendants’ agents would keep her safe while she attended [the festival]. Bynum v Camp Bisco, LLC, 2016 NY Slip Op 00091, 3rd Dept 1-7-16

 

NEGLIGENCE (TOWN AND COUNTY IMMUNE FROM SUIT, NO SPECIAL RELATIONSHIP)/MUNICIPAL LAW (TOWN AND COUNTY IMMUNE FROM SUIT, NO SPECIAL RELATIONSHIP)/GOVERNMENTAL IMMUNITY (TOWN AND COUNTY IMMUNE FROM SUIT, NO SPECIAL RELATIONSHIP)

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THEORIES OF LIABILITY NOT FAIRLY IMPLIED FROM THE NOTICE OF CLAIM CAN NOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS.

The First Department determined Supreme Court properly refused to allow the supplementing of a bill of particulars because the new theories of liability could not be implied from the notice of claim. This was a slip and fall case. The notice of claim alleged the fall was caused by liquid on a stair. The supplemental bill sought to allege the stair was defective and a building employee was not properly trained:

 

Contrary to plaintiff’s contention, he may not rely on his testimony at his General Municipal Law § 50-H hearing to rectify any deficiencies in the notice of claim, because he never testified that there was an issue with the step itself and traditionally such testimony has only been “permitted to clarify the location of an accident or the nature of injuries, [it] may not be used to amend the theory of liability set forth in the notice of claim where, as here, amendment would change the nature of the claim'” … .

Accordingly, the motion court properly struck the allegations from the supplemental bill of particulars, as new theories of liability that cannot be fairly implied from the notice of claim, and precluded plaintiff’s expert from testifying with regard to them … . Lewis v New York City Hous. Auth., 2016 NY Slip Op 00040, 1st Dept 1-7-16

 

NEGLIGENCE (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/NOTICE OF CLAIM (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/BILL OF PARTICULARS (CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)/MUNICIPAL LAW (BILL OF PARTICULARS CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)

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QUESTION OF FACT WHETHER DEFENDANT-CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM AND WHETHER THERE WAS AN INTERVENING, SUPERSEDING CAUSE OF THE INJURY, CRITERIA FOR BOTH EXPLAINED.

The Third Department, reversing Supreme Court, determined defendant-contractor’s motion for summary judgment should not have been granted. Defendant contracted with the NYS Department of Transportation (DOT) to do roadwork. Plaintiff alleged the roadwork caused the car in which he was a passenger to go airborne. The Third Department found that the alleged excessive speed attributed to the driver of the car was not unforeseeable as a matter of law. Therefore, there was a question of fact whether the speed was the superseding cause of the accident. The court explained the law re: tort liability to third persons arising from contract, and an intervening, superseding cause of injury:

 

… “[A] party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches 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 general rule is that ‘[a] builder or contractor is justified in relying upon the plans and specifications which he [or she] has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury'” * * *

… “[W]here the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus” … . Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law … . Dunham v Ketco, Inc., 2016 NY Slip Op 00082, 3rd Dept 1-7-16

 

 

 

 

 

 

NEGLIGENCE (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/NOTICE OF CLAIM (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/BILL OF PARTICULARS (CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)/MUNICIPAL LAW (BILL OF PARTICULARS CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)

CAUSES OF ACTION ALLEGING PROMOTERS OF A MUSIC FESTIVAL NEGLIGENTLY FAILED TO CURTAIL THE USE OF DRUGS AT THE FESTIVAL AND NEGLIGENTLY FAILED TO PROVIDE ADEQUATE EMERGENCY MEDICAL FACILITIES AT THE FESTIVAL PROPERLY SURVIVED MOTIONS TO DISMISS.

The Third Department determined plaintiff stated causes of action sounding in negligence against the promoters of a music festival, called Camp Bisco. Plaintiff’s daughter, Bynum, ingested a harmful substance at the festival. The complaint alleged defendants failed to take adequate measures to prevent the use of drugs at the festival and failed to make sure there were adequate emergency medical facilities at the festival:

 

Mass gathering permittees, such as defendants, “have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties” … . “The scope of that duty is defined according to the likelihood that such behavior will occur and endanger [attendees] based on past experience” … . Accepting as true plaintiff’s allegations that defendants knew or should have known of the widespread presence and use of illegal drugs at this annual festival, known as Camp Bisco, we find that plaintiff has adequately stated a cause of action for negligence based on defendants’ alleged failure to exercise reasonable care in curtailing the use of illegal drugs on the festival grounds.

As for plaintiff’s separate cause of action for negligence based upon defendants’ alleged failure to provide adequate onsite emergency medical services, defendants, as mass gathering permittees, had a clear duty to provide such services pursuant to the State Sanitary Code (see 10 NYCRR 7-4.3 [n]; 18.3 [b]; 18.4 [a]). According to plaintiff’s allegations, defendants knew that Camp Bisco had increased in size every year and that, in 2011, over 26,000 people were in attendance. Plaintiff further asserts that, despite their apparent knowledge, defendants circumvented their duty to provide the proper level of medical services at the festival by misrepresenting to the relevant permitting authorities that the maximum attendance for the 2012 edition of Camp Bisco attended by Bynum would be just 12,000 people (see 10 NYCRR 18.4 [a] [1], [2]). Accepting plaintiff’s further statement that defendants’ provision of inadequate medical services was a proximate cause of Bynum’s injuries, we find that these allegations state a cognizable theory of negligence as well … . Bynum v Keber, 2016 NY Slip Op 00093, 3rd Dept 1-7-16

 

NEGLIGENCE (CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/MUSIC FESTIVALS (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/DRUG USE (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/MEDICAL FACILITIES (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)

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PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENDANT’S VOCATIONAL REHABILITATION EXPERT.

The Third Department, overruling its own precedent, determined plaintiff, in this Labor Law 200, 240(1) and 241(6) action, could properly be compelled to submit to an examination by defendant's vocational rehabilitation expert:

CPLR 3101 “broadly mandates full disclosure of all matter material and necessary in the prosecution and defense of an action” … . “The words 'material and necessary' as used in [CPLR] 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'” … . To properly exercise such discretion, a trial court must balance the need for discovery “against any special burden to be borne by the opposing party” … . If the trial court has engaged in such balancing, its determination will not be disturbed in the absence of an abuse of discretion … .

… While we previously held that there is “no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist” … , the Court of Appeals has since confirmed that the mandate for broad disclosure is not necessarily limited by the more specific provision of the CPLR that allows a defendant to demand that a plaintiff submit to a physical or mental examination “by a designated physician” (CPLR 3121 [a]) where his or her medical condition is at issue … . Accordingly, the circumstances of a case may allow such a demand even in the absence of express statutory authority … . We agree with the conclusion reached by the other Departments that such circumstances are not limited to those cases where a plaintiff has retained a vocational rehabilitation expert to establish damages, although, generally, such testing “might well be unduly burdensome”… .

… [Plaintiff] placed his ability to work in controversy by claiming that, as a result of his injuries, he suffered loss of future wages and reduced earning capacity and by testifying at his examination before trial that his future career opportunities were limited … . Hayes v Bette & Cring, LLC, 2016 NY Slip Op 00090, 3rd Dept 1-7-16

LABOR LAW (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/NEGLIGENCE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPDERT)/CIVIL PROCEDURE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/VOCATIONAL REHABILITATION EXPERT (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/DISCLOSURE (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)

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EXPERT EVIDENCE OF A RECALL AND EVIDENCE OF CUSTOMER COMPLAINTS ABOUT DEFENDANTS’ MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN.

The Fourth Department, eliminating restrictions on the evidence imposed by Supreme Court, determined evidence from plaintiffs’ electrical expert and evidence of customer complaints were relevant to defendants’ duty to warn. Plaintiffs alleged an electrical defect in their motorcycle (manufactured by defendants) caused the accident. Plaintiffs sought to introduce evidence of a recall made prior to the accident and evidence of customer complaints:

… [W]e conclude that the court erred in granting that part of defendants’ motion seeking to preclude the testimony of plaintiffs’ electrical engineer expert and the customer complaints to the extent that such evidence is relevant to defendants’ continuing duty to warn. We therefore modify the order accordingly. “A manufacturer or retailer may . . . incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale . . . through being made aware of later accidents involving dangers in the product of which warning should be given to users . . . Although a product [may] be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn” … . “What notice . . . will trigger [this] postdelivery duty to warn appears to be a function of the degree of danger which the problem involves and the number of instances reported . . . [Whether] a prima facie case on that issue has been made will, of course, depend on the facts of each case” … .

Defendant’s recall was first issued in March 2004, prior to plaintiffs’ accident on April 30, 2004. A determination that plaintiffs’ motorcycle should have been included in the recall would be relevant to defendants’ duty to warn plaintiffs of the defect that, plaintiffs allege, caused a “quit while riding” event in their motorcycle and thereby caused or contributed to their accident. Plaintiffs’ expert, an electrical engineer, expects to testify in part that plaintiffs’ motorcycle does not differ in any material respect from those included in the 2004 recall, despite the fact that plaintiffs’ motorcycle did not have the same stator as the motorcycles affected by the recall. In our view, the expert’s qualifications as an electrical engineer qualify him to opine whether the motorcycles “were the same in all significant respects” … , and the fact that the expert has done no testing goes to the weight to be given to his testimony, not its admissibility … . Smalley v Harley-Davidson Motor Co. Group LLC, 2015 NY Slip Op 09712, 4th Dept 12-31-15

NEGLIGENCE (PRODUCTS LIABILITY, EVIDENDE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/PRODUCTS LIABILITY (EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/DUTY TO WARN (PRODUCTS LIABILITY, EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)

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