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No Interlocutory Appeal Lies from a Pre-Trial Ruling on the Admissibility of Evidence Which Did Not Limit the Scope of the Issues or Theories of Liability to Be Tried

Defendant was intoxicated when her vehicle collided with plaintiff’s decedent’s vehicle.  Plaintiff, the administrator of decedent’s estate, sought to introduce expert testimony demonstrating that, based upon defendant’s blood-alcohol content six hours after the accident, she would have been visibly intoxicated and had a higher blood-alcohol content when she was served at defendant tavern.  The tavern moved to preclude the expert testimony and, after a Frye hearing, the court granted the motion.  The Third Department determined the court’s ruling on the evidentiary issue did not limit the scope of the issues or theories of liability to be tried and was not, therefore, appealable as of right or by permission. Appeal would have to wait until the trial is concluded:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Supreme Court precluded plaintiff from offering an expert opinion as to “the extrapolated blood alcohol content [and] the physiological condition” of [defendant] while she was at the tavern, crediting the testimony of [the tavern’s] expert that such an opinion could not be reliably drawn from the available proof. Regardless of whether Supreme Court abused its discretion in making that determination, it was plainly an evidentiary ruling that did not “limit[] the scope of the issues or the theories of liability to be tried” … . Indeed, counsel for plaintiff acknowledged at oral argument that the preclusion of the proffered expert evidence is not fatal to his claims and that a trial will occur even if the evidence is not allowed. Appellate review thus must wait until after trial, when the relevance of the evidence and the effect of the evidentiary ruling may be properly assessed … . Hurtado v Williams, 2015 NY Slip Op 04912, 3rd Dept 6-11-15

 

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Plaintiff Not Competent When Release Was Signed/Statute of Limitations Tolled by Plaintiff’s Mental Disability

The Third Department determined Supreme Court properly concluded the release signed by the plaintiff was not enforceable, because the plaintiff was not competent at the time it was signed, and the statute of limitations was tolled by plaintiff’s mental disability. Plaintiff suffered a brain injury when he was struck by a car in 1991. A few months later plaintiff signed a release provided by an insurance adjuster in return for $5000.  The case languished for years and Supreme Court denied defendant’s motion for summary judgment dismissing the case in 2014. The court explained the relevant law:

With respect to the release signed by plaintiff, “the burden of proving incompetence rests upon the party asserting incapacity to enter into an agreement [and], to prevail, plaintiff was required to establish that [his] ‘mind was so affected as to render [him] wholly and absolutely incompetent to comprehend and understand the nature of the transaction'” … . The incapacity must be shown to exist at the time the pertinent document was executed … . Regarding the statute of limitations issue, the toll for “insanity” provided by CPLR 208 is narrowly interpreted, the concept of insanity is “equated with unsoundness of mind” … and encompasses “only those individuals who are unable to protect their legal rights because of an over-all inability to function in society” … . The mental incapacity must exist at or be caused by the accident and continue during the relevant time … . Lynch v Carlozzi, 2015 NY Slip Op 04893, 3rd Dept 6-11-15

 

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The County Was Negligent Per Se Due to Its Violation of the Provision of the Vehicle and Traffic Law Requiring Loads in Open Trucks be Covered—Plaintiff Was Struck by Debris Which Came Off an Uncovered Load—The Governmental Immunity Conferred by the Executive Law During a Response to an Emergency (the Truck Was Carrying Debris from the Clean-Up After Hurricane Irene) Did Not Extend to this Situation (Purpose and Scope of the Government’s “Emergency” Immunity Under the Executive Law Explained)

Plaintiff was injured when a piece of lumber fell off an open truck owned by the county.  Plaintiff was driving her vehicle when the debris came off the county truck and struck her in the head. The county truck was being used to transport debris in the aftermath of Hurricane Irene. The Third Department determined that, by transporting unsecured debris in an open truck, the county had violated Vehicle and Traffic Law 380-a (1) and, therefore, the county was negligent per se.  The court interpreted Vehicle and Traffic Law 380-a to mean that a prima facie case of a violation of the statute is made out by proof a load in an open truck was not covered. Once that showing is made, the owner of the truck will not be deemed to have violated the statute, despite the lack of a cover, if the owner can show the load was secure such that no cover was required. No such showing was possible here.  The court rejected the county’s argument that the emergency-related immunity conferred by the Executive Law applied here. The court noted the purpose of the Executive-Law immunity is to allow the government to make decisions during an emergency—which roads to clear first, for instance—without fear of liability, but the “emergency” immunity did not insulate the county from liability for its negligence in every context:

Executive Law § 25 (1) provides that, “[u]pon the threat or occurrence of a disaster, the chief executive of any political subdivision is hereby authorized and empowered to and shall use any and all facilities, equipment, supplies, personnel and other resources of his [or her] political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.” To be sure, this statute, which vests a political subdivision’s chief executive “with the power to respond to a local disaster or the immediate threat of a disaster, . . . reflects an awareness by the . . . Legislature that in emergency situations prompt and immediate unilateral action is necessary to preserve and protect life and property” … . Consistent with that awareness, the statute further provides, as noted previously, that “[a] political subdivision shall not be liable for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of any officer or employee in carrying out the provisions of this section” (Executive Law § 25 [5]).

In our view, the scope of the immunity conferred by Executive Law § 25 is clear. When faced with a disaster, a political subdivision’s chief executive may, for example, decide where to set up a makeshift hospital or aid station, prioritize and determine which streets to clear or allocate supplies and personnel as he or she sees fit, and such discretionary determinations, in turn, will not serve as a basis upon which to expose the political subdivision to liability. In other words, a disgruntled homeowner who is confronted with a flooded basement and is living on an impassable residential street cannot seek to hold a locality liable for damages simply because its chief executive deemed it more important to first clear a path to the local hospital or to pump out the holding cells in the local police station. That said, the immunity conferred by Executive Law § 25 (5) does not, to our analysis, grant a political subdivision carte blanche to perform a discretionary function in any manner that it sees fit — particularly in a manner that poses a danger to the traveling public. Here, a valid — and discretionary — determination may well have been made that the removal of storm debris from, among other locations, the DPW garage was a priority and, further, that transporting such debris in open containers was the most efficient and expeditious way to do so. The discretionary nature of these broad, resource-based decisions, however, did not obviate the need for defendants to comply with the provisions of Vehicle and Traffic Law § 380-a (1) in terms of the actual transport of such debris. As the immunity conferred by Executive Law § 25 (5) does not, in our view, extend to the particular facts of this case, Supreme Court properly denied defendants’ cross motion for summary judgment dismissing plaintiff’s complaint. …

Vehicle and Traffic Law § 380-a (1), which provides that “[i]t shall be unlawful to operate on any public highway any open truck or trailer being utilized for the transportation of any loose substances, unless said truck or trailer has a cover, tarpaulin or other device of a type and specification . . . which completely closes in the opening on. . . said truck or trailer while said truck or trailer shall be so operated, so as to prevent the falling of any such substances therefrom. However, if the load is arranged so that no loose substance can fall from or blow out of such truck, the covering is not necessary.” * * *

In our view, in order to discharge her initial burden on her motion for summary judgment, plaintiff need only have shown that defendants failed to utilize a cover; at that point, the burden shifted to defendants to demonstrate that no statutory violation actually occurred because the load was arranged in such a manner that no cover was necessary. To hold otherwise would place a nearly insurmountable burden upon plaintiff, as the manner in which the container was loaded and the contents were arranged inevitably lies within the exclusive knowledge of defendants… . Pierce v Hickey, 2015 NY Slip Op 04914, 3rd Dept 6-11-15

 

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Presumption Vehicle Was Being Driven with the Owner’s Consent (Vehicle & Traffic Law 388) Was Not Overcome by Testimony of Vehicle Owner and Her Daughter—Summary Judgment Should Not Have Been Awarded on that Ground

The Second Department noted, in the context of a summary judgment motion, the testimony of the vehicle owner, Varela, and her daughter, an interested witness, was not sufficient to rebut the presumption that another was driving the vehicle with Verela’s consent (Vehicle and Traffic Law 388):

The Supreme Court should have denied that branch of Varela’s motion which was for summary judgment dismissing the complaint insofar as asserted against her. “Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s express or implied permission” … . ” The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use'” … . The question of consent is ordinarily one for the jury … . Blassberger v Varela, 2015 NY Slip Op 04796, 2nd Dept 6-10-15

 

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Catheter, Although Deliberately Inserted During Surgery for Temporary Monitoring Purposes, Was a “Foreign Object” Within the Meaning of CPLR 214-a—Action Brought Within One Year of the Discovery of the Catheter (22 Years after Insertion) Was Timely

The Court of Appeals, in a comprehensive opinion by Judge Read, determined a catheter left in plaintiff’s heart after surgery in 1986 (when plaintiff was three years old) was a “foreign object.”  Therefore the statute of limitations did not start to run until the presence of the catheter was “discovered” in 2008.  Plaintiff’s complaint, brought within one year of discovery, was therefore timely.  The issue was whether the catheter could be considered a “fixation device” because it was intentionally inserted. If so, the one-year-from-discovery “foreign object” statute of limitations (see CPLR 214-a) would not have applied and the complaint would have been untimely. The Court of Appeals held that the catheter (which was to temporarily monitor heart function after surgery) was not a “fixation device” because, although it was intentionally inserted, it was not inserted to serve a “postsurgery healing function” and it was to be removed a few days after insertion. Thus the catheter was different in kind from a “fixation device,” such as a “stent” or a “suture,” deliberately inserted to serve a “healing function:”

Here, the catheter inserted in the left atrium of plaintiff’s heart performed no securing or supporting role during or after surgery. As explained by plaintiff’s expert, and uncontroverted by defendants, the catheters functioned like a sentinel, allowing medical personnel to monitor atrial pressure so that they might take corrective measures as required; the catheters were, in the words of plaintiff’s expert, “a conduit for information from [plaintiff’s] cardiovascular system.” Because the catheters under the facts of this case are therefore not fixation devices (or chemical compounds or prosthetic aids or devices), they are not categorically excluded from the foreign object exception in CPLR 214-a.

The question then becomes whether the catheters are analogous to tangible items like … clamps … or other surgical paraphernalia (e.g., scalpels, sponges, drains) likewise introduced into a patient’s body solely to carry out or facilitate a surgical procedure. We conclude that they are … .  Walton v Strong Mem. Hosp., 2015 NY Slip Op 04786, CtApp 6-10-15

 

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Conflicting Interests Prevented Attorney from Representing Both the Driver and Passenger in a Stopped Car Which Was Rear-Ended

The Second Department determined, once a counterclaim was made against the driver of the car which was stopped and rear-ended, a conflict of interest arose prohibiting an attorney from representing both the driver and the passenger (Earl):

The general rule is that an attorney is not entitled to a fee in a personal injury action if the attorney violated the Rules of Professional Conduct (12 NYCRR 1200.0) by representing both the driver of an automobile involved in a collision and a passenger in that vehicle … provides, in pertinent part, with respect to conflicts of interests involving current clients, that a lawyer shall not represent a client if a reasonable lawyer would conclude that “the representation will involve the lawyer in representing differing interests” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1]) . Pursuant to rule 1.7(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) the potential conflict may be waived if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against the other in the same litigation, and each affected client gives informed consent, confirmed in writing. In the instant case, there was no written confirmation of informed consent to the potential conflict.

[The attorney] contends that since Earl was a passenger in a stopped vehicle which was struck in the rear, the driver of the stopped vehicle was clearly not at fault, and there was no conflict of interest … . However, once the defendant asserted a counterclaim, the pecuniary interests of the driver conflicted with those of the passenger… . Shelby v Blakes, 2015 NY Slip Op 04839, 2nd Dept 6-10-15

 

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Management Agreement Did Not Give Rise to Tort Liability for Slip and Fall

In determining the management agreement with a hospital did not give rise to tort liability for a slip and fall on the hospital premises, the Second Department explained the relevant law:

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . However, there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (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 … . “As part of its prima facie showing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff’s bill of particulars” … .

Here, the plaintiffs alleged that Sodexo [the building manager] maintained and controlled the premises. Sodexo established its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs were not parties to the management agreement and thus, it owed the injured plaintiff no duty of care …; that the management agreement was not so comprehensive and exclusive as to displace the Hospital’s duty to maintain the premises safely …; and that it did not create the allegedly hazardous condition … . In opposition, the plaintiffs failed to raise a triable issue of fact. Sperling v Wyckoff Hgts. Hosp., 2015 NY Slip Op 04840, 2nd Dept 6-10-15

 

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Question of Fact Whether a Building Manager Owed a Duty to Plaintiff—Plaintiff, a Sidewalk Pedestrian, Was Struck by Window-Washing Equipment—The Window Washing Service Was an Independent Contractor Hired by the Building Manager—Question of Fact Raised Whether a Duty to the Plaintiff Ran from the Building Manager Because of the Inherently Dangerous Work the Independent Contractor Was Hired to Do and Because of the Nature of the Contract Between the Building Manager and the Building Owner—The Court Noted that the Property Owners Were Not Liable Because Ownership and Control of the Building on the Property Had Been Transferred (to the Building Owner)

The Second Department determined there was a question of fact whether a building manager (Milford) who hired a window washing service (Red Cap) could be liable for injury to a pedestrian (plaintiff) struck by a piece of window-washing equipment which fell. Although Red Cap was an independent contractor, plaintiff raised a question of fact about whether Milford owed a nondelegable duty to plaintiff because the work it hired Red Cap to do was inherently dangerous (in the absence of warning signs and pedestrian barriers) and whether the building management services contract between Milford and the building-owner (S & P) was sufficiently comprehensive and exclusive to create a duty running to plaintiff. The court noted that the property owners were not liable because ownership and control of the building (on the property) had been transferred (to the building-owner):

Milford established its prima facie entitlement to judgment as a matter of law by submitting proof that Red Cap was an independent contractor and, thus, it could not be held liable for Red Cap’s negligent acts …, and that, as S & P’s contractual managing agent, it owed no duty to the plaintiff … . However, in opposition, the plaintiff raised triable issues of fact as to whether Milford owed a nondelegable duty to the plaintiff because it knew or had reason to know that the work it hired Red Cap to perform was inherently dangerous to pedestrians in the absence of warning signs or barriers on the sidewalk below the window-washing apparatus …, and whether the property management services agreement with S & P was sufficiently comprehensive and exclusive so as support a duty running to the plaintiff … . Baek v Red Cap Servs., Ltd., 2015 NY Slip Op 04794, 2nd Dept 6-10-15

 

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Dismantling, Salvaging or Demolishing a Product Is Not a Foreseeable Use of the Product

The First Department determined the dismantling, salvaging and demolishing of valves containing asbestos did not constitute a foreseeable use of the valves.  The complaint against the manufacturer of the valves, sounding in strict products liability and negligence, was dismissed.

“A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose” (Lugo v LJN Toys, 75 NY2d 850, 852 1990] [citations omitted]; see also New Holland at 53-54). The issue, which has not been squarely addressed by the courts of this State, is whether dismantling constitutes a reasonably foreseeable use of a product.  * * *

“To recover for injuries caused by a defective product, the defect must have been a substantial factor in causing the injury, and the product must have been used for the purpose and in the manner normally intended or in a manner reasonably foreseeable'” … . As plaintiff did not use [defendant’s] manufactured product in a reasonably foreseeable manner and his salvage work was not an intended use of the product, the complaint should have been dismissed. Hockler v William Powell Co., 2015 NY Slip Op 04765, 1st Dept 6-9-15

 

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“Reckless Disregard” Standard of Care Applies to Operators of Street Sweepers in New York City—Standard Explained

The Court of Appeals determined the “reckless disregard” standard in Vehicle and Traffic Law 1103, not the ordinary negligence standard, applied to the operator of a New York City street sweeper who was in the process of cleaning the street when the sweeper struck plaintiff’s car.  A question of fact had been raised whether the applicable standard of care was violated:

… [U]nder VTL § 1642, the City of New York is authorized to establish additional rules, including rules that supercede those of the State (see VTL § 1642 [a] [“the legislative body of any city having a population in excess of one million, may by local law . . . restrict or regulate traffic on or pedestrian use of any highway . . .]). At the time of the accident, 34 RCNY [Rules of the City of New York] § 4-02 (d) (1)(v) provided that VTL § 1103 applies “to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway” and that “such persons are not relieved from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions of this subparagraph protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others” (34 RCNY § 4-02 [d] [1] [iv]).

In Riley [95 NY2d 455], this Court held that the unambiguous language of VTL § 1103 (b), as further supported by its legislative history, made clear that the statute exempts from the rules of the road all vehicles, including sanitation sweepers, which are “actually engaged in work on a highway” (95 NY2d at 460), and imposes on such vehicles a recklessness standard of care (see id. at 466). The Court further concluded that liability under that standard is established upon a showing that the covered vehicle’s operator “‘has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id. at 466… ). Deleon v New York City Sanitation Dept., 2015 NY Slip Op 04788, CtApp 6-9-15

 

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