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Negligence Suit Based Upon Shooting at Shopping Mall Dismissed

The Third Department affirmed the grant of summary judgment to the defendant shopping mall in a negligence suit based upon a shooting at the mall in which plaintiffs were injured.  The Court determined the shooting was not foreseeable and explained the relevant legal principles as follows:

Landowners have a duty to take reasonable precautions to secure their premises from foreseeable harm, including the foreseeable criminal acts of third parties on the premises….    Criminal conduct is foreseeable if it was “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location”….   While the prior criminal activity need not have been “at the exact location where [the] plaintiff was harmed or . . . of the same type of criminal conduct to which [the] plaintiff was subjected,” the inquiry of foreseeability depends upon “the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question”… Haire v Bonelli …, 515494, 3rd Dept, 6-13-13

THIRD PARTY ASSAULT

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Supreme Court’s Grant of Defendants’ Motion to Set Aside Verdict Reversed

The First Department, over a substantial dissent, reversed Supreme Court’s grant of defendants’ motion to set aside the verdict in a medical malpractice action:

“The question of whether a verdict is against the weight of the evidence is discretion-laden, and the critical inquiry is whether the verdict rested on a fair interpretation of the evidence”…. On this record, we conclude that the Supreme Court erred in setting aside the verdict as against the weight of the evidence, because it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence…. The jury was entitled to resolve in plaintiff’s favor the conflict between the decedent’s and Dr. Conte’s testimony as to the nature and timing of her complaints and whether he later made referrals for CT scans that she declined.  Rose v Conte, 2013 NY Slip Op 04297, 1st Dept, 6-11-13

 

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Plaintiffs Should Have Been Allowed to File Late Notice of Claim

The First Department determined plaintiff, who was eleven at the time of the accident, should have been allowed to file an amended notice of claim. The original notice described the wrong address.  At the 50-h hearing the plaintiff identified the correct location after seeing photographs of the incorrect location.  The defendant did not meet its burden of demonstrating prejudice.  Gonzalez v NYC Hous Auth, 2013 NY Slip Op 04287, 1st Dept, 6-11-13

 

Question of Fact Raised in Rear-End Collision Case

Over a dissent by two justices, the Fourth Department ruled a question of fact had been raised which precluded summary judgment to a defendant in a rear-end collision case:

Although defendant met his initial burden of establishing a prima facie case of negligence on the part of plaintiff inasmuch as it is undisputed that plaintiff’s vehicle rear-ended defendant’s stopped vehicle, we conclude that plaintiff submitted evidence of an adequate nonnegligent explanation for the collision… .

While other cases have held that a party’s testimony that he or she did not “see” the other vehicle’s brake lights illuminated before rear-ending that vehicle does not alone establish the requisite nonnegligent explanation for the collision…, those cases are distinguishable from this case. Here, plaintiff testified at his deposition that he was unable to discern whether defendant’s vehicle was stopped because defendant’s brake lights were not activated. Plaintiff, however, also submitted the deposition testimony of McCulloch [the driver of the vehicle in front of defendant] and defendant in which they both described traffic conditions on the date of the accident as “congested” and “stop and go.” Additionally, plaintiff submitted evidence that defendant stopped suddenly. Indeed, plaintiff testified at his deposition that defendant apologized to plaintiff for the accident, explaining that McCulloch had stopped suddenly and that defendant “couldn’t help it.” That evidence, when viewed in the light most favorable to the nonmoving party …, establishes a sufficient nonnegligent explanation for the collision.  Borowski v Ptak …, 1315, 4th Dept, 6-7-13

TRAFFIC ACCIDENTS

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Past Psychological Records Deemed Relevant in Lead-Paint Injury Case Where Psychological Injury Alleged

In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint.  The Court ordered an in camera inspection of the records to weed out irrelevant information.  Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13

 

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“Substantial Factor in Producing the Injury” Jury Instruction (Re: Causation) Did Not Reduce Plaintiff’s Burden of Proof

In attempting to intubate an 83-year-old woman who was unresponsive, a doctor perforated her esophagus making it necessary that she be fed through a tube for the remaining three years of her life.  In affirming the plaintiffs’ verdict, the Court of Appeals determined that the trial court’s jury charge did not improperly reduce plaintiffs’ burden of proof on the issue of causation in this medical malpractice action. The jury was told defendant’s negligence caused the injury if it was a substantial factor in producing the injury:

It is well settled that a “plaintiff must generally show that the defendant’s negligence was a substantial factor in producing the injury” to satisfy “the burden of proving a prima facie case” in a medical malpractice action…. Here, the trial court recited the proximate cause charge directly from the PJI and explicitly instructed the jury as to plaintiffs’ burden of proof in the case. The court charged the jury using the language from PJI 2:70, as follows: “An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.” Further, at the outset of the charge, the court instructed the jury that “the burden of the proof in this case rests with the plaintiffs,” and made clear that the plaintiffs had to establish by a preponderance of the evidence defendants’ negligence. Taking this jury charge as a whole, we do not find support for defendants’ contention of an improper alteration of the causation standard or plaintiffs’ burden of proof ….  Wild v Catholic Health System…, No 97, CtApp, 6-6-13

 

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“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer

In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):

The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .

The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….

A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .

To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13

 

½ Inch Differential Was Trivial and Could Not Be Basis of Liability

The First Department affirmed the dismissal of a slip and fall complaint finding the one-half-inch differential between the level of the sidewalk and the frame of the cellar door was trivial and could not serve as the basis of liability.  Boynton v Haru Sake Bar, 2013 NY Slip Op 04113, 1st Dept, 6-6-13

 

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In Court of Claims Case, Inability to Prove State Was Served with Notice of Claim Required Dismissal

In affirming the Court of Claims’ dismissal of a claim because claimant was unable to demonstrate the state was properly served, the Third Department explained the relevant law as follows:

“A claimant seeking to recover damages  for personal injuries caused by  the negligence . . . of an  officer or employee  of [defendant] must  file and  serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof”….  Both filing with the court and service upon the Attorney General must take place within the relevant statutory period … and, as suits against defendant are permitted only by virtue of its waiver of sovereign immunity and  are in derogation of the common law, “the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction”….   Notably, “a defect in subject matter jurisdiction may be raised at any time, even for the first time  on appeal, because it relates to the competence of the court to consider [the] matter”… .and, therefore, such defect “cannot be overlooked or remedied by either waiver or estoppel” … .  Caci v State of New York, 515844, 3rd Dept, 6-6-13

BICYCLES

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Notice of Claim (Pursuant to Court of Claims Act) Not Specific Enough

The Third Department upheld the Court of Claims’ dismissal of a claim because the notice of claim was not specific enough.  In describing the statutory criteria, the Third Department wrote:

Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and  the total sum  claimed. “Because suits against [defendant] are allowed only by [defendant’s] waiver of sovereign immunity and  in derogation of the common law, statutory requirements conditioning suit must be strictly construed”….   Although “absolute exactness” is not required…, the claim must “‘provide a  sufficiently detailed  description  of  the  particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and  extent of its liability'” … .  Morra v State of New York, 515751, 3rd Dept, 6-6-13

NEGLIGENT SUPERVISION, EMPLOYEE

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