Negligence Update February 2019

Negligence Update February 2019

Course #TRT0838 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for February 27, 2020, through February 26, 2021

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 1.0 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between February 1, 2019 and February 28, 2019 which address issues in “Negligence.” Similar CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.  Each monthly CLE course will be posted on the New York Appellate Digest website as it is approved by the NYS CLE Board.

The “Negligence” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly “Update Pamphlets” which are accessed in the “Update Service.” The monthly “Update Pamphlets” posted in the “Update Service” comprise the written materials for each of these monthly 1/2-to-1-credit-hour CLE courses.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 1.0 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Revised Negligence Update Pamphlet February 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

Revised Negligence Update Pamphlet February 2019

Negligence Update February 2019 Attorney Affirmation

Negligence Update February 2019 Evaluation Form

Topics Covered in the “Negligence Update February 2019” Course Are Described Below (the podcast does not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Revised Negligence Update Pamphlet February 2019”

ASSUMPTION OF THE RISK, OPEN AND OBVIOUS.

PLAINTIFF ASSUMED THE RISK OF INJURY CAUSED BY AN OPEN AND OBVIOUS CRACK IN A BASKETBALL COURT (FIRST DEPT). 6

BOATING ACCIDENT, MUNICIPAL LAW.

IN THESE MARITIME LAW ACTIONS STEMMING FROM A FATAL BOATING ACCIDENT, THE TOWN DID NOT DEMONSTRATE ITS ENTITLEMENT TO SUMMARY JUDGMENT, THE COMPLAINTS ALLEGED NEGLIGENT PLACEMENT OF BUOYS (SECOND DEPT). 6

EDUCATION-SCHOOL LAW, COLLEGE STUDENTS.

COLLEGE DID NOT OWE A DUTY OF CARE TO TWO STUDENTS WHO DIED IN A FIRE IN THE OFF-CAMPUS HOUSE THEY WERE RENTING (SECOND DEPT). 7

EDUCATION-SCHOOL LAW, MUNICIPAL LAW.

ALTHOUGH THE CITY OWED A SPECIAL DUTY TO A STUDENT WHO WAS STRUCK BY A CAR ATTEMPTING TO CROSS THE ROAD, THAT DUTY WAS FULFILLED WHEN THE CROSSING GUARD TOLD THE STUDENT TO WALK TO THE NEXT AVAILABLE CROSSWALK, THE STUDENT, HOWEVER, THEN ATTEMPTED TO CROSS WHERE THERE WAS NO CROSSWALK (SECOND DEPT). 8

EDUCATION-SCHOOL LAW, PLAYGROUNDS.

EVIDENCE SUBMITTED WITH REPLY PAPERS SHOULD HAVE BEEN CONSIDERED, NEGLIGENT MAINTENANCE CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS PLAYGROUND INJURY CASE (SECOND DEPT). 9

EDUCATION-SCHOOL LAW, SUPERVISION.

QUESTIONS OF FACT ABOUT THE TYPE OF STICKS AND BALLS USED IN THE LACROSSE GAME AND WHETHER THE FAILURE TO PROVIDE GOGGLES WAS THE PROXIMATE CAUSE OF PLAINTIFF-STUDENT’S EYE INJURY (THIRD DEPT). 10

MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE.

QUESTIONS OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS MEDICAL MALPRACTICE ACTION, REQUESTING MEDICAL RECORDS AND MEETING WITH AN ATTORNEY TO EXPLORE A MALPRACTICE ACTION DID NOT NECESSARILY INDICATE THE TERMINATION OF TREATMENT (FOURTH DEPT). 10

MEDICAL MALPRACTICE, EXPERT OPINION.

PLAINTIFF’S EXPERT DID NOT LAY A FOUNDATION FOR AN OPINION ABOUT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 11

MEDICAL MALPRACTICE, MUNICIPAL LAW.

LATE NOTICE OF CLAIM SHOULD HAVE BEEN DEEMED TIMELY SERVED, MEDICAL RECORDS PROVIDED TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM (SECOND DEPT). 12

MUNICIPAL LAW, POLICE DOGS, DOG-BITE.

POLICE DOG RELEASED TO TRACK SUSPECTS WENT OUT OF THE HANDLER’S SIGHT AND BIT PLAINTIFF, 42 USC 1983, NEGLIGENCE AND BATTERY ACTIONS SURVIVED SUMMARY JUDGMENT, QUESTION OF FACT WHETHER POLICE OFFICER ENTITLED TO QUALIFIED IMMUNITY, CITY ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE PROFESSIONAL JUDGMENT RULE (THIRD DEPT). 13

MUNCIPAL LAW, WEIGHT-LIFTING EQUIPMENT.

APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE ABSENCE OF A REASONABLE EXCUSE (FIRST DEPT). 14

NEGLIGENT PLACEMENT, FOSTER CARE.

COMPLAINT AGAINST A FOSTER CARE AGENCY STATED CAUSES OF ACTION FOR NEGLIGENT PLACEMENT, LOSS OF THE CHILDREN’S SERVICES AND EXPENSES FOR THE CHILDREN’S CARE AND TREATMENT (SECOND DEPT). 15

OPEN AND OBVIOUS, DANGEROUS CONDITION.

LOCK BOX ON THE OUTSIDE OF A BUILDING ON WHICH PLAINTIFF STRUCK HIS HEAD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT). 15

SLIP AND FALL, MUNICIPAL LAW, WRITTEN NOTICE.

VILLAGE CODE PROVISION WHICH REQUIRES WRITTEN NOTICE OF A SIDEWALK DEFECT BEFORE MUNICIPAL LIABILITY CAN BE IMPOSED APPLIES TO A STAIRWAY FROM A PUBLIC ROAD TO A MUNICIPAL PARKING LOT, STAIRWAY SLIP AND FALL ACTION PROPERLY DISMISSED (CT APP). 16

SLIP AND FALL, SPOLIATION.

SANCTIONS FOR SPOLIATION OF VIDEOTAPE IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT). 17

SLIP AND FALL

DEFENDANT DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE STAIRWAY WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL, HOWEVER DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT). 17

SLIP AND FALL.

DEFENDANTS DID NOT DEMONSTRATE THEY LACKED CONSTRUCTIVE NOTICE OF CRUMBLING ASPHALT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 18

SLIP AND FALL.

JUDGE SHOULD NOT HAVE GRANTED RELIEF WHICH WAS NOT REQUESTED IN THE MOTION PAPERS, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON SOME ISSUES IN THIS SLIP AND FALL CASE (FOURTH DEPT). 19

SLIP AND FALL.

ONE INCH GAP AT THE TOP OF EXTERIOR STEPS ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT). 20

SLIP AND FALL.

PLAINTIFF WAS INJURED WHEN HE FELL THROUGH A FLOOR OPENING IN A HOUSE UNDER CONSTRUCTION, DEFENDANT HAD PLACED CARDBOARD OVER THE OPENING, THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 20

THIRD-PARTY ASSAULT.

MANAGER OF COOPERATIVE DID NOT HAVE A DUTY TO PROVIDE SECURITY IN EXTERIOR PUBLIC AREAS IN THIS THIRD PARTY ASSAULT CASE (FIRST DEPT). 21

THIRD-PARTY ASSAULT.

MOTION TO DISMISS THE NEGLIGENCE ACTION AGAINST DEFENDANT SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED, THE EVIDENCE SUBMITTED BY THE DEFENDANT DID NOT RULE OUT LIABILITY BASED UPON THE RELATIONSHIP BETWEEN THE DEFENDANT SECURITY COMPANY AND THE COMPANY PROVIDING SECURITY AT THE TIME OF THE ASSAULT (SECOND DEPT). 22

THIRD-PARTY ASSAULT.

OWNERS OF A RESTAURANT-BAR NOT LIABLE FOR AN ATTACK ON PLAINTIFF IN THE ADJACENT PARKING LOT IN THIS THIRD-PARTY ASSAULT CASE, THE ATTACK WAS NOT FORESEEABLE (SECOND DEPT). 23

TOXIC TORTS.

RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 DID NOT ENTITLE CHEVRON TO SUMMARY JUDGMENT IN THIS ASBESTOS-MESOTHELIOMA CASE (CT APP). 23

TRAFFIC ACCIDENTS, GRAVES AMENDMENT.

NISSAN, AS THE LESSOR OF THE VEHICLE, WAS ENTITLED TO DISMISSAL OF THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE PURSUANT TO THE GRAVES AMENDMENT, THE COMPLAINT ALLEGED NEGLIGENT MAINTENANCE OR MECHANICAL MALFUNCTION, NISSAN DEFENDANTS DEMONSTRATED THEY DO NOT INSPECT, REPAIR, MAINTAIN OR SERVICE THE VEHICLES THEY LEASE (SECOND DEPT). 24

TRAFFIC ACCIDENTS, INCREDIBLE AS A MATTER OF LAW.

PLAINTIFF’S DEPOSITION TESTIMONY DEEMED INCREDIBLE AS A MATTER OF LAW IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). 25

TRAFFIC ACCIDENTS, MOTORCYCLE, GRAVES AMENDMENT.

PLAINTIFF, A PASSENGER ON A MOTORCYCLE, WAS ENTITLED TO SUMMARY JUDGMENT AGAINST THE VAN DRIVER AND THE EMPLOYER OF THE VAN DRIVER WHO MADE A LEFT TURN INTO THE MOTORCYCLE’S PATH, THE GRAVES AMENDMENT MAY APPLY TO THE LESSOR OF THE VAN, PLAINTIFF DID NOT HAVE TO DEMONSTRATE SERIOUS INJURY AS SHE WAS NOT A COVERED PERSON UNDER THE NO-FAULT INSURANCE LAW (SECOND DEPT). 26

TRAFFIC ACCIDENTS, MUNICIPAL LAW, EMERGENCY VEHICLES.

QUESTION OF FACT WHETHER THE RECKLESS STANDARD APPLIED IN THIS PEDESTRIAN-POLICE CAR ACCIDENT CASE (FIRST DEPT). 26

TRAFFIC ACCIDENTS, MUNICIPAL LAW, EMERGENCY VEHICLES.

SNOWPLOW DRIVER WAS EXEMPT FROM STANDARD NEGLIGENCE AND DID NOT ACT RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE, COURT OF CLAIMS REVERSED (THIRD DEPT). 27

TRAFFIC ACCIDENTS, REAR-END COLLISIONS.

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, ALTHOUGH SUPREME COURT DIDN’T REACH THE LIABILITY ISSUE, THE MERITS WERE LITIGATED AND BRIEFED ALLOWING APPELLATE REVIEW (SECOND DEPT). 28