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Absent Landowners Not Liable for Injuries at Party Hosted on their Property.

The Fourth Department reversed the trial court and granted a summary judgment motion brought by the owners of a golf course.  At a party that was not hosted by the landowners (and at which the landowners were not present), plaintiff was injured by another party-goer.  In determining the landowners had demonstrated they were not liable, the Fourth Department explained:

In general, “[landowners] are under a common-law duty to ‘control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control’ ” …Thus, landowners who are not present when a guest engages in harmful conduct and who have neither notice of nor control over such conduct are under no duty to protect others from such conduct …, unless the nature of the relationship between the landowners and the party host is such that the landowners, even if absent, are deemed to share in the duty imposed upon the host …. Pettit v Green, et al, 80, CA 12-01293, Fourth Dept. 3-15-13

third party assault

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Failure to Instruct Jury that Medical Practice Guidelines Did Not Set Forth the Applicable Standard of Care Required Reversal

The case turned on whether the defendant failed to recommend and perform a timely colonoscopy (the plaintiff, who had a history of colon polyps, contracted colon cancer).  At trial the defendant doctor was allowed to introduce in evidence guidelines published by the American Gastroenterological Association which included the recommended frequency of colonoscopies.  The plaintiff objected and requested a limiting instruction informing the jury that the guidelines “did not set forth the standards of care with regard to the diagnosis and treatment of plaintiff’s colon cancer.” The trial court gave a cursory limiting instruction at the time the guidelines were admitted, and told the jury another instruction would be forthcoming.  The trial court subsequently declined to give any further instructions on the issue.  In reversing the judgment for the defendant and ordering a new trial, the First Department wrote:

The court erred in failing to give the instruction that plaintiff requested. Although the trial court’s instruction informed the jury that it was to make its determination based on “all the evidence,” this instruction was not sufficient to guide the jury on how to apply the Guidelines to the facts before it. The court’s instruction as rendered failed to make clear to the jury that the Guidelines were simply recommendations regarding treatment, and thus, that compliance with the Guidelines did not, in and of itself, constitute good and accepted medical practice … . The trial court should have given the jury an instruction specifically stating that the Guidelines were not the same as standards of care and that the jury was to make its determination based on the particular circumstances of the case, not on the Guidelines alone. Introducing the Guidelines into evidence without the appropriate limiting instruction allowed the jury to infer that a physician need not exercise professional judgment with regard to individual patients, but could simply abide by the recommendations promulgated in the Guidelines.  Hall v Kiyici, 2013 NY Slip Op 01616, 9067, 23531/05, 1st Dept. 3-14-13

 

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Res Ipsa Loquitur Is Rarely a Basis for Summary Judgment/Questions of Fact About Defendant’s Control of the Instrumentality Causing Injury Precluded Summary Judgment.

A homeowner was sued by a utility employee who was injured when a staircase leading to the homeowner’s basement collapsed.  At the deposition the homeowner testified the house was new when he bought it and he had made no alterations to the stairway.  The plaintiff was granted summary judgment pursuant to the doctrine of res ipsa loquitur.  The Second Department reversed because it could not be ruled out that the builder of the home, and not the defendant, was negligent.  It was not demonstrated, therefore, that the accident was caused by an instrumentality in the exclusive control of the defendant.  The Court wrote:

The plaintiff’s reliance on the doctrine of res ipsa loquitur was insufficient to establish his prima facie entitlement to judgment as a matter of law. A plaintiff must establish the following in order for the doctrine to apply: “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Only in the rarest cases will a plaintiff be awarded summary judgment or judgment as a matter of law in the course of a trial by relying upon the doctrine of res ipsa loquitur … .  Bunting v Haynes, 2013 NY Slip Op 01521, 2012-01717, Index No 25382/10, Second Dept. 3-13-13

 

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Medical Malpractice—Expert Opinion Can Be Based Entirely on Experience.

In affirming the denial of defendants’ motion for summary judgment, the First Department noted that an expert’s affidavit can be sufficient to raise a triable issue of fact even where the opinion is based entirely on the expert’s professional experience: “While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience …”.  Mitrovic v Silverman, 9282, 304369/09, First Dept. 3-7-13

 

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Spoliation of Evidence.

Plaintiff was injured in a fall from a chair.  Plaintiff’s notice of claim specifically requested preservation of the chair.  The defendant failed to preserve it.  Plaintiff testified the chair was not broken. In reversing summary judgment granted to the defendant, the First Department determined that an expert could have found a latent defect in the chair if it had been preserved.  Therefore the defendant was sanctioned by the preclusion of any testimony about the condition of the chair and an adverse inference charge to the jury at trial.  Gilchrist v City of New York, 8804, 103400/08, First Dept. 3-7-13

 

Res Ipsa Loquitur Need Not Be Pled and Should Have Been Applied.

Plaintiff received an electric shock when he stepped on a metal manhole cover while crossing a street.  Defendant was under contract with the city and was doing electrical work in the vicinity of the manhole.  In reversing the trial court’s grant of summary judgment to the defendant, the First Department discussed the concept of res ipsa loquitur:

“Res ipsa loquitur is not a separate theory of liability but merely ‘a common-sense application of the probative value of circumstantial evidence’ … . A plaintiff’s failure to specifically plead res ipsa loquitur does not constitute a bar to the invocation of res ipsa loquitur where the facts warrant its application … . The plaintiff’s failure here to plead the doctrine in his complaint does not render it unavailable to him … . …  To apply res ipsa loquitur, a plaintiff must establish that (1) the accident [is] of a kind that ordinarily does not occur in the absence of negligence; (2) the instrumentality or agency causing the accident [is] in the exclusive control of the defendants; and (3) the accident must not be due to any voluntary action or contribution by plaintiff ….’ .”  Smith v Consolidated Edison …, 9201, 110504/06, First Dept. 3-7-13

 

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Defective Handrail Could Have Been Factor in Plaintiff’s Injuries.

In reversing the trial court’s grant of a motion to set aside the verdict, the Second Department determined that the violation of an Administrative Code concerning stairway handrails could have been a factor in the injuries to the plaintiff. The plaintiff tried to stop his fall down a stairway but could not grab the handrail which was flush with the wall.  Expert testimony established that a handrail flush to the wall was dangerous and defective.  Cusumano v City of New York, 2012-00015, Index No 4207/01, Second Dept. 3-6-13

 

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Prior Written Notice Law Protects City from Liability for Dangerous Road Condition.

“Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies…  .  The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality…” .  Because the City established it had not received prior written notification of the condition which caused plaintiff’s injuries it was entitled to judgment as a matter of law.  Connor v City of New York, 2012-02970, Index No 30407/05, Second Dept. 3-6-13

 

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Hospital Generally Not Liable for Negligence of Private Attending Physician.

“ ‘[I]n general, a hospital cannot be held vicariously liable for the negligence of a private attending physician’ … . Further, a hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice…’ “.  Aronov v Soukkary, 2012-00155, Index No 2061/09, Second Dept. 3-6-13

 

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10-Year-Old Plaintiff’s Testimony Should Have Been Considered—No Need for Hearing to Determine Testimonial Capacity

The trial court’s determination the testimony of the 10-year-old plaintiff at a 50-h hearing should not be considered because there was no hearing to determine the infant plaintiff’s testimonial capacity was reversed by the Second Department.  “None of the parties challenged the infant plaintiff’s capacity to testify.  Under the circumstances, neither the infant plaintiff’s age nor his responses to the questioning necessitated a hearing.”  Perez v City of New York, 2012-03711, Index No 3451/10, 2nd Dept. 3-6-13

 

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