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Criteria for Non-Negligent Explanation for Striking Vehicle from Behind Described​​​​

In finding the defendant failed to demonstrate a non-negligent reason for his striking the plaintiff’s vehicle from behind (in defendant’s motion for summary judgment), the Fourth Department explained:

A rear-end collision with a vehicle that is stopped or is in the process of stopping ‘creates a prima facie case of liability with respect to the [driver] of the rearmost vehicle, thereby requiring that [driver] to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ ” …. We agree with plaintiff that defendant failed to establish as a matter of law that the accident was the result of unanticipated brake failure, a nonnegligent explanation alleged by defendant in support of his cross motion… “Where, as here, .. . defendant[] intend[s] ‘to lay the blame for the accident on brake failure, it [is] incumbent upon [him] to show that the problem with the brakes was unanticipated, and that [he] had exercised reasonable care to keep them in good working order’ ” … .  Lyons v Zeman, CA 12-02074, 479, 4th Dept, 5-3-13

TRAFFIC ACCIDENTS

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“Speaking Authorizations” Re Non-Party Healthcare Providers in Lead-Paint Injury Case Okay/But Not Okay for Non-Party Educators

In a lead-paint injury case, the Fourth Department determined Supreme Court properly granted a motion to preclude evidence of plaintiff’s mental or physical condition unless plaintiff provided defendant with so-called “speaking authorizations” allowing defendant to communicate with non-party healthcare providers about the plaintiff’s injuries.  However, the Fourth Department did not agree with Supreme Court’s grant of the same motion with respect to non-party educators (two justices dissented on that issue):

In Arons v Jutkowitz …, the Court of Appeals provided the framework for conducting discovery with regard to nonparty healthcare providers, which includes the use of speaking authorizations. Arons, however, does not authorize defendant to obtain speaking authorizations for plaintiff’s educators. We decline to extend Arons to require production of speaking authorizations to anyone other than nonparty healthcare providers. The Arons decision is narrow in scope and provides a framework as to how parties must procedurally comply with the Health Insurance Portability and Accountability Act of 1996 when attempting to speak with an adverse party’s treating physician. Defendant made no showing that the discovery devices available under the CPLR and the Uniform Rules for the New York State Trial Courts were inadequate to obtain the necessary discovery. McCarter v Woods, CA 12-00678, 1117, 4th Dept, 5-3-13

 

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Okay to Compel Plaintiff to Produce Medical Reports Linking Injury to Lead Paint or Be Precluded from Introducing Such Evidence

In a lead-paint injury action, defendants moved to compel plaintiff to produce medical reports linking the injuries to lead and to provide an amended bill of particulars to reflect those injuries. In the alternative the defendants moved to preclude proof of plaintiff’s injuries in the absence of such medical reports.  Supreme Court granted the defendant’s motion and the Fourth Department affirmed.  In addition, the Fourth Department noted that Supreme Court was not required to take judicial notice of the federal Residential Lead-Based Paint Hazard Reduction Act (42 USC 4851), which provides a private right of action for lead-related damages, because plaintiff was not “relying” on the statute.  Hamilton v Miller…, CA 12-01574, 355, 4th Dept, 5-3-13

 

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Normal Negligence Theories Apply to Injury Resulting from Animal Wandering Off (Cow Struck By Car)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the line of strict liability “knowledge-of-an-animal’s-vicious-propensities” cases did not apply to this case, where a cow was negligently allowed to wander off, causing injury to the plaintiff who struck the cow with her car.  In a case like this, normal negligence theories apply:

[Here the claim] … is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard — that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 NY3d at 599) — in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.  We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal — i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) — is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.  Hastings v Sauve, et al, No 78, CtApp, 5-2-13

 

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Limitation of Liability Clause in House-Design Contract Valid

he defendant designed plaintiffs’ residence and the first floor was built two feet below what the regulations required resulting in increased flood insurance premiums.  In the contract between the parties, it was agreed to limit defendant’s liability to the amount of the fees paid by plaintiffs.  After noting that contractual liability-limit clauses are valid and enforced except in cases of “gross negligence,” the Third Department determined “gross negligence” had not been demonstrated:  In describing “gross negligence,” the Third Department wrote:

In this context, it is settled  that  “gross negligence differs in kind, not only in degree, from claims of ordinary negligence.  It is conduct  that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing” … .  Soja v Keystone Tozze, LLC, 515422, 3rd Dept 5-2-13

 

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Contract-Based Duty Owed to Non-Party Explained

In this case a stove that was not secured to the wall with a bracket tipped over as children either stood or jumped on the oven door. One of the children was killed.  One of the many issues in the case was whether the contractor who installed the stove without the bracket was liable to the surviving child.  In upholding the denial of the contractor’s motion for summary judgment, the Third Department explained when a contractual relationship can give rise to tort liability to a third party:

Defendant contends that, since he performed work as a contractor for the rental agent, he owed no duty to the surviving child and, thus, his motion for summary judgment in this regard should have been granted. “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” …. The  three limited exceptions to this general rule include: “(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” …. Care must be taken in the application of the exceptions so that they do not “swallow up the general rule” …, and determining whether a duty exists is “a question of law for the courts” ….  Kelley…v Schneck…, 515645, 3rd Dept, 5-2-13

ESPINAL

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Plaintiff Was Unable to Demonstrate Landlord Had Knowledge of Presence of Lead Paint​

Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified the dismissal of the lead-paint-injury complaint.  The Third Department explained:

“[I]n order for a landlord to be  held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” ….To  establish constructive notice in the context of a lead paint case, the plaintiff must show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned,  (3) was aware  that paint was  peeling on  the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Hines v Double D and S Realty Management Corp, 515635, 3rd Dept, 5-2-13

 

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Criteria for Negligence on Part of Out-of-Possession Landlord with Limited Right of Reentry​

In dismissing a personal injury action stemming from plaintiff’s fall down a two-step interior stairway, the First Department explained the liability criteria for an out-of-possession landlord with limited right to reenter:

As out-of-possession landlords, with a limited right to reenter, they could only be liable for negligence “based on a significant structural or design defect that is contrary to a specific statutory safety provision” …. The only condition alleged on appeal to serve as a predicate for [defendant’s] potential liability involves the riser heights of the steps. Even if the alleged Building Code provision, which concerns uniformity, were applicable and had been violated, the same would not constitute a significant structural or design defect and could not serve as a basis for liability against [defendant]. Drotar v Sweet Thing, Inc, 2013 NY Slip Op 03180, 1st Dept, 5-2-13

SLIP AND FALL

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Duty to Defend Versus Duty to Indemnify—Question of Fact About Whether Intentional Conduct Policy Exclusion Applies

The plaintiff’s vehicle had been struck from behind by one Schwartz.  Plaintiff drove his vehicle into Schwartz and left the scene. Plaintiff was charged criminally for those actions.  In the personal injury action brought by Schwartz against plaintiff, the defendant insurance company defended plaintiff.  A $25,000 judgment was entered against plaintiff. Plaintiff then sued defendant insurance company for indemnification ($25,000).  Plaintiff moved for summary judgment, which was granted.  The Second Department reversed finding a question of fact had been raised by the insurer about whether plaintiff’s injuries were the result of his intentional conduct, a policy exclusion. In explaining the relevant law, the 1st Department wrote:

“While the duty to defend is measured against the possibility of a recovery, the duty to pay is determined by the actual basis for the insured’s liability to a third person” … . The burden to establish coverage and a duty to indemnify lies with the insured … . However, the insurer has the burden of proving facts establishing that the loss falls within an exclusionary clause of the insurance policy … .  * * *  [Here] …the insurer submitted evidence from the criminal prosecution and the underlying personal injury action, including Schwartz’s deposition testimony, which raised a triable issue of fact whether the loss fell within a policy exclusion for bodily injury “intentionally” caused by the insured…Dryer v New York Cent Mut Fire Co, 2013 NY Slip Op 03056, 2nd Dept, 5-1-13

TRAFFIC ACCIDENT, REAR-END COLLISIONS

Emergency Doctrine Warranted Summary Judgment to Defendant Bus Company

The plaintiff, a bus passenger, was injured when the bus stopped quickly and she fell to the floor.  The Transit Authority moved for summary judgment under the emergency doctrine, submitting evidence the bus driver stopped to avoid a collision with a car that cut in front of the bus.  In granting summary judgment, the Second Department described the emergency doctrine as follows:

Through the emergency doctrine, the law recognizes ” that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency’ … .

“Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact for purposes of application of the emergency doctrine …, those issues may in appropriate circumstances be determined as a matter of law” …. Marri v New York City Tr Auth, 2013 NY Slip Op 03065, 2nd Dept, 5-1-13

TRAFFIC ACCIDENTS

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