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Circumstances When Hospital May Be Liable for Actions of Non-Employee Doctor Explained

The Second Department determined the defendant hospital was not liable for the alleged negligence of a doctor (Berlingieri) who was not a hospital employee.  In the course of the decision, the court explained when a hospital may be liable for the actions of a non-employee doctor:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . An exception to this general rule exists where a plaintiff seeks to hold a hospital vicariously liable for the alleged malpractice of an attending physician who is not its employee where “a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . Thus, in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice “was an independent contractor and not a hospital employee” …, and that “the exception to the general rule did not apply” … . In this case, the hospital met that burden by demonstrating that Berlingieri was not a hospital employee, and that [plaintiff] sought treatment from a particular physician, Joanow, went to the hospital at Joanow’s direction, and was in fact treated by Joanow and a medical team that he assembled shortly after her admission … .

A plaintiff may rebut a hospital’s prima facie showing by raising a triable issue of fact as to whether the hospital can be held vicariously liable for the malpractice of an attending physician who is not under its employ pursuant to a theory of “apparent or ostensible agency” … . To support a viable claim based upon ostensible agency, a plaintiff must set forth facts sufficient to support the conclusion that the hospital engaged in some misleading conduct upon which the plaintiff reasonably relied when the plaintiff decided to accept medical services from the hospital … . There is no evidence that [plaintiff] was misled by the hospital into believing that Berlingieri was a member of its staff, and the record does not reflect any other allegation by [plaintiff] that she believed there to be an employment relationship between Berlingieri and the hospital, and that she thereupon accepted his services in reliance upon such a relationship … . Muslim v Horizon Med Group PC, 2014 NY Slip Op 03991, 2nd Dept 6-4-14

 

Question of Fact Whether It Was Foreseeable that Overbooking a Theater Could Cause Crowd-Related Injury (Plaintiff Alleged Injury in a “Stampede”)

The First Department determined there was a question of fact whether it was foreseeable that overbooking a movie theater would result in crowd-related problems. Here plaintiff alleged she was injured in a “stampede” which occurred when she and the group she was with were told to turn around and go back downstairs:

… [T]he motion court properly concluded that defendants did not establish entitlement to judgment as a matter of law. It is well settled that landowners and permittees owe those “on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition,” and “to minimize foreseeable dangers on their property” … . Under the circumstances presented, involving the deliberate overbooking of a theater for a free film screening, defendants were required to show that they took adequate crowd control measures to address the foreseeable risks to those attending in order to meet their prima facie burden of demonstrating entitlement to summary judgment … . Here, defendants knew that the screening was deliberately overbooked, and it was, therefore, foreseeable that overcrowding could be a problem … . Deposition testimony from both plaintiff and Regal’s manager demonstrated that the staircase on which plaintiff fell was crowded, and that the crowd had formed a “stampede” after being redirected downstairs to find available seats in the crowded theater. Since defendants failed to present evidence that adequate crowd control measures were in place, the motions for summary judgment were properly denied. Sachar v Columbia Pictures Indus., Inc., 2015 NY Slip Op 04717, 1st Dept 6-4-15

 

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Absence of Privity Between Beneficiary of an Estate and the Attorneys Who Represented the Estate in Medical Malpractice and Wrongful Death Actions Precluded Legal Malpractice Action by Beneficiary

The Third Department determined the plaintiff-beneficiary of an estate represented by defendants-attorneys in medical malpractice and wrongful death actions could not bring a legal malpractice action against the attorneys (based upon the medical malpractice and wrongful death actions) because no attorney-client relationship existed. Absent fraud or collusion, the absence of privity between the beneficiary and the attorneys precluded the legal malpractice action:

There is no question that a legal malpractice claim requires — in the first instance — “the existence of an attorney-client relationship” … . Plaintiff does not contend, and the record does not otherwise reflect, that he had a contractual relationship with defendants. Rather, plaintiff argues that because defendants represented [plaintiff’s mother] in her capacity as the administrator of decedent’s estate in both the medical malpractice and wrongful death actions and plaintiff, in turn, is a beneficiary of decedent’s estate, it necessarily follows that defendants were duty bound to represent plaintiff’s best interests in the context of those two actions. The flaw in plaintiff’s argument on this point is that “[i]n New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances” … . Although a limited exception has been carved out with respect to an action brought by the personal representative of an estate, “strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances” … . Sutch v Sutch-Lenz, 2015 NY Slip Op 04692, 3rd Dept 6-4-15

 

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Elements of a Defective Design Cause of Action Described

The Third Department determined questions of fact had been raised about whether a machine was defectively designed. Plaintiff was injured when he attempted to make adjustments while the machine was running.  There was evidence the adjustments could have been made safely using another access point. The court provided a good explanation of the elements of a defective-design cause of action:

Liability for a defectively designed product “attaches when the product, as designed, presents an unreasonable risk of harm to the user” … . A successful cause of action for defective design exists where a plaintiff is able to establish “that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” … . To demonstrate a product was not “reasonably safe,” the injured party must demonstrate both that there was a substantial likelihood of harm and that “it was feasible to design the product in a safer manner” .. . A claim may be defeated where a defendant demonstrates that the product’s “utility outweighs its risks [because] the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product’s inherent usefulness at an acceptable cost” … . This “risk-utility analysis” requires consideration of “‘(1) the product’s utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product’s potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer’s ability to spread the cost of any safety-related design changes'” … . Generally, the risk/utility analysis presents a factual question for a jury … . Barclay v Techno-Design, Inc., 2015 NY Slip Op 04708, 3rd Dept 6-4-15

 

Plaintiff Assumed the Risk of Stepping on Running Treadmill

The Second Department determined plaintiff had assumed the risk of injury from stepping on a treadmill the prior user had left running:

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation … . This encompasses risks associated with the construction of the playing field, the activity engaged in, and the surface and any open and obvious conditions on it … . The doctrine has been applied in cases involving injuries sustained in gyms and fitness centers … . Awareness of the risk of engaging in a particular activity is “to be assessed against the background of the skill and experience of the particular plaintiff” … . The doctrine, however, does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased … . * * *

As the risks of using a treadmill were obvious and apparent to the plaintiff, she consented to them, and the defendant discharged its duty of care by making the conditions as safe as they appeared to be … . DiBenedetto Town Sports Intl LLC, 2014 NY Slip Op 03974, 2nd Dept 6-4-14

 

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Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment

The Second Department determined summary judgment should have been granted in an intersection collision case.  The plaintiff had the right of way and defendants’ vehicle failed to yield.  No question of fact was raised about plaintiff’s comparative fault:

The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield … . However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection, including keeping a proper lookout and to see what can be seen through the proper use of his or her senses … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . Bennett v Granata, 2014 NY Slip Op 03968, 2nd Dept 6-4-14

 

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Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial—No Prejudice to Defendant

The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer’s specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs’ motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” … . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial … . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” … .

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice …, failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner … . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15

 

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Doctor Did Not Have a Duty to Disclose an Email from a Non-Physician Representative of the Implant Manufacturer Which Indicated Plaintiff Might Not Be a Good Candidate for the Implants

The First Department, over a dissent, determined summary judgment had been properly granted to the defendants in a medical malpractice action.  The court found that the doctor was not required to provide the plaintiff with an email from a non-physician representative of the implant manufacturer stating that plaintiff might not be an ideal candidate for the implant because the implants require “good tissue support:”

Plaintiff … failed to rebut defendants’ showing that she was properly informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits, by tendering expert testimony proving the insufficiency of the information … disclosed to her … .

There is no basis in the law for the dissent’s conclusion that [the doctor] had a duty to disclose to plaintiff the email from the manufacturer’s representative in response to her general query. The dissent mistakenly equates that representative’s conclusory email with a product’s written manufacturer warning or a consulting doctor’s opinion. Ramos v Weber, 2014 NY Slip Op 03943, 1st Dept 5-3-14

 

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To Succeed In a Legal Malpractice Action Stemming from Representation in a Criminal Matter, the Plaintiff Must Have a Colorable Claim of Actual Innocence—Elements of Legal Malpractice in this Context Explained

The Second Department determined defendant-attorney’s motion for summary judgment dismissing the legal malpractice complaint should have been granted.  Plaintiff, when represented by defendant-attorney, was convicted of sex offenses. The conviction was overturned on “ineffective assistance of counsel” grounds.  Plaintiff was acquitted upon retrial. In the legal malpractice action, the plaintiff was unable to prove the element of causation.  Defendant-attorney demonstrated plaintiff’s conviction was not due solely to defendant-attorney’s conduct, but was based in part on plaintiff’s “guilt,” in that her children provided graphic testimony alleging sexual abuse. To succeed in a legal malpractice action stemming from a criminal matter, the plaintiff must at least have a colorable claim of actual innocence.  In addition, the nonpecuniary damages sought by the plaintiff (psychological injury due to her incarceration) are not recoverable in a legal malpractice action.  The Second Department explained the elements of legal malpractice in this context (stemming from representation in a criminal case):

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . In the civil context, this Court has held that a plaintiff in a legal malpractice action “need prove only that the defendant-attorney’s negligence was a proximate cause of damages” … . However, in a legal malpractice action such as this one, arising from representation in a criminal matter, the “plaintiff must have at least a colorable claim of actual innocence” …, and the plaintiff ultimately bears the unique burden to plead and prove that his or her “conviction was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” … . ” To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements'” … . Dawson v Schoenberg, 2015 NY Slip Op 04603, 2nd Dept 6-3-15

 

Slippery Dock Was an Open and Obvious Condition—Landowner Had No Duty to Protect Against the Condition

Plaintiff was injured when he stepped on a dock from a boat.  Plaintiff alleged the dock was slippery. The Second Department determined Supreme Court should have granted defendant’s motion for summary judgment because a landowner has no duty to protect against an open and obvious condition:

A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . Here, the defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law … . “[A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incident to the nature of the property, and that could be reasonably anticipated by those using it” … . A slippery condition on a dock is necessarily incidental to its nature and location near a body of water … . Mossberg v Crow’s Nest Mar. of Oceanside, 2015 NY Slip Op 04618, 2nd Dept 6-3-15

 

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