Negligence Update January 2020

Negligence Update January 2020

Course #TRT0864 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for September 2, 2020, through December 31, 2021

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 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 January 1, 2020 and January 31, 2020 which address issues in “Negligence.” Similar 1/2-to 1-hour 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.

The “Negligence” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Negligence Update Pamphlet January 2020”) is provided below.

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” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 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 (“Negligence Update Pamphlet January 2020”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Negligence Update Pamphlet January 2020

Negligence Update January 2020 Attorney Affirmation

Negligence Update January 2020 Evaluation Survey

Topics Covered in the “Negligence Update January 2020” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Negligence Update Pamphlet January 2020”

ATTORNEYS, STIPULATIONS.

DEFENDANTS’ ATTORNEYS HAD APPARENT AUTHORITY TO BIND DEFENDANTS TO THE OPEN-COURT STIPULATED SETTLEMENT OF $8,875,000; IN ADDITION, DEFENDANTS RATIFIED THE STIPULATION BY FAILING TO TIMELY OBJECT TO IT (FIRST DEPT). 6

ATTORNEYS.

PLAINTIFF’S COUNSEL’S REMARKS DURING SUMMATION DEPRIVED DEFENDANT RESIDENTIAL HEALTH CARE FACILITY OF A FAIR TRIAL; OVER $1 MILLION JUDGMENT IN THIS NEGLIGENCE/PUBLIC-HEALTH-LAW ACTION REVERSED (SECOND DEPT). 7

ESPINAL.

DEFENDANT CLEANING SERVICE CONTRACTOR SUBMITTED EVIDENCE WHICH CREATED A QUESTION OF FACT WHETHER, PURSUANT TO THE ESPINAL CRITERIA, IT LAUNCHED AN INSTRUMENT OF HARM WHICH CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 8

HEALTH CLUBS.

NO ONE AT THE DEFENDANT HEALTH CLUB WHEN PLAINTIFF’S DECEDENT SUFFERED A HEART ATTACK WAS CERTIFIED TO PROVIDE EMERGENCY AID AND THE EMPLOYEE DELAYED CALLING 911; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 9

INSURANCE LAW.

IT WAS ALLEGED ONE MAN INTENDED TO DOUSE ANOTHER WITH LIQUID IN A CUP BUT UNINTENTIONALLY THREW THE CUP ITSELF CAUSING INJURY; THERE WAS A QUESTION OF FACT WHETHER THE INJURY WAS CAUSED BY INTENTIONAL CONDUCT OR AN ACCIDENT (SECOND DEPT). 9

INSURANCE LAW.

THE CARRIER WHICH HAD ISSUED A BUSINESS AUTOMOBILE INSURANCE POLICY COVERING THE INSURED’S FLATBED TRUCK WAS OBLIGATED TO DEFEND THIS ACTION STEMMING FROM AN INJURY INCURRED WHILE UNLOADING A TRACTOR FROM THE FLATBED TRUCK; UNLOADING A TRUCK IS CONSIDERED OPERATION OF THE TRUCK UNDER VEHICLE AND TRAFFIC LAW 388 (THIRD DEPT). 10

MEDICAL MALPRACTICE, OUT-OF-STATE EXPERT.

STATEMENT FROM PLAINTIFF’S OUT-OF-STATE EXPERT IN THIS DENTAL MALPRACTICE ACTION NOT IN ADMISSIBLE FORM; CPLR 2106 REQUIRES A SWORN AFFIDAVIT FROM A DENTIST LICENSED IN ANOTHER STATE (SECOND DEPT). 11

MEDICAL MALPRACTICE.

AFTER JURISDICTIONAL DISCOVERY, PLAINTIFF DID NOT DEMONSTRATE NEW YORK HAD JURISDICTION OVER THREE OF FOUR NEW JERSEY DEFENDANTS IN THIS MEDICAL MALPRACTICE CASE; WITH RESPECT TO ONE NEW JERSEY DEFENDANT, THE JURISDICTION ISSUE MUST BE DECIDED BY THE JURY (FIRST DEPT). 12

MEDICAL MALPRACTICE.

DEFENDANT PHYSICIAN MAY BE LIABLE FOR FAILURE TO ADVISE DECEDENT AND THE NURSE MIDWIFE AGAINST HOME BIRTH; SUCH FAILURE COULD CONSTITUTE A PROXIMATE CAUSE OF DEATH; JUDGE SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT BASED IN PART ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT). 13

MEDICAL MALPRACTICE.

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED; PLAINTIFF’S EXPERT DID NOT DEMONSTRATE THE NECESSARY EXPERTISE AND THE EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE; THE COURT NOTED THAT A THEORY RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT SHOULD NOT BE CONSIDERED (SECOND DEPT). 14

MEDICAL MALPRACTICE.

MEDICAL MALPRACTICE ACTIONS REINSTATED AGAINST SEVERAL DEFENDANTS; TWO JUSTICE DISSENT ARGUED THE ACTIONS WERE REINSTATED BASED UPON A NEW THEORY WHICH SHOULD NOT HAVE BEEN CONSIDERED (FOURTH DEPT). 15

MEDICAL MALPRACTICE.

PLAINTIFFS CAN NOT RAISE A NEW THEORY OF LIABILITY IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, SUPREME COURT REVERSED (SECOND DEPT). 16

MEDICAL MALPRACTICE.

QUESTION OF FACT WHETHER HOSPITAL MAY BE VICARIOUSLY LIABLE FOR TREATMENT PROVIDED BY A NON-EMPLOYEE IN THE HOSPITAL EMERGENCY ROOM (SECOND DEPT). 16

MEDICAL MALPRACTICE.

THE COURT OF CLAIMS IN THIS MEDICAL MALPRACTICE ACTION CREDITED BOTH EXPERTS, ONE OF WHOM OPINED DEFENDANT WAS AT RISK FOR FUTURE HEART PROBLEMS; THEREFORE THE AWARD OF ZERO DAMAGES FOR FUTURE PAIN AND SUFFERING WAS ERROR; AWARD INCREASED BY $10,000 (THIRD DEPT). 17

NOTICE, LANDLORD-TENANT.

DEFENDANT PROPERTY OWNER/MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF ANY PROBLEMS WITH A DOOR WHICH ALLEGEDLY MALFUNCTIONED CAUSING PLAINTIFF’S DECEDENT TO FALL OUT OF A WHEELCHAIR LIFT (FIRST DEPT). 18

NOTICE.

DEFENDANT SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PROTRUDING SCREW WHICH LACERATED PLAINTIFF-STUDENT’S LEG; THE SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 19

NOTICE.

THE TIP OF PLAINTIFF THIRD-GRADER’S FINGER WAS SEVERED WHEN A DOOR IN THE SCHOOL BUILDING SLAMMED SHUT; THE DEFENDANT-SCHOOL’S (DEPARTMENT OF EDUCATION’S [DOE’S]) MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED; THE DOOR WAS NOT DEFECTIVE, THE SCHOOL HAD NO NOTICE OF A PROBLEM WITH THE DOOR, SUPERVISION COULD NOT HAVE PREVENTED THE ACCIDENT, AND NYC IS NOT LIABLE FOR AN ACCIDENT ON SCHOOL (DOE) PROPERTY (SECOND DEPT). 20

OPEN AND OBVIOUS.

WOOD WHICH HAD FALLEN TO THE GROUND FROM A SPLIT RAIL FENCE IS AN OPEN AND OBVIOUS CONDITION WHICH IS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (SECOND DEPT). 21

PROXIMATE CAUSE.

PLAINTIFF ALLEGEDLY INJURED HIS HAND WHEN HE SAW HIS DAUGHTER START TO SLIP OUT OF A SWING ON A SCHOOL PLAYGROUND AND STOPPED THE SWING; THE ALLEGEDLY DEFECTIVE SWING WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY; THE COURT NOTED THAT THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY TO THIS SCENARIO (SECOND DEPT). 21

PROXIMATE CAUSE.

VERDICT FINDING THE SCHOOL DISTRICT WAS NEGLIGENT BUT FURTHER FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE STUDENT’S SUICIDE WAS NOT AGAINST THE WEIGHT OF EVIDENCE; PLAINTIFFS ALLEGED BULLYING AT SCHOOL CAUSED THEIR SON’S SUICIDE (THIRD DEPT). 22

RES IPSA LOQUITUR.

THE JURY WAS PROPERLY INSTRUCTED ON THE DOCTRINE OF RES IPSA LOQUITUR; PLAINTIFF WAS INJURED WHEN AN AUDITORIUM RISER COLLAPSED WHEN SHE WAS WALKING ON IT (THIRD DEPT). 23

RESPONDEAT SUPERIOR.

DEFENDANT’S EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ARM-WRESTLED WITH PLAINTIFF; THEREFORE THE EMPLOYER WAS NOT LIABLE FOR THE ALLEGED INJURY TO PLAINTIFF UNDER A RESPONDEAT SUPERIOR THEORY (FOURTH DEPT). 24

RESPONDEAT SUPERIOR.

PLAINTIFF ALLEGED DEFENDANT’S EMPLOYEE, A SECURITY GUARD, ATTACKED HER; DEFENDANT’S EMPLOYEE ALLEGED PLAINTIFF ATTACKED HIM AND HE ACTED IN SELF DEFENSE; THE EMPLOYER WOULD NOT BE LIABLE UNDER EITHER SCENARIO; THE EMPLOYER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). 25

SLIP AND FALL, LANDLORD-TENANT, MUNICIPAL LAW.

TENANT IN THE BUILDING ABUTTING A DEFECTIVE SIDEWALK WAS NOT LIABLE FOR A SLIP AND FALL; RELEVANT LAW CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT). 26

SLIP AND FALL, MUNICIPAL LAW.

ALTHOUGH THE CITY GAVE A PERMIT TO A BUS COMPANY TO USE A PARKING LOT, THE CITY DID NOT DEMONSTRATE IT RELINQUISHED ALL CONTROL OVER THE MAINTENANCE OF THE PARKING LOT SUCH THAT IT COULD NOT BE HELD LIABLE IN THIS SLIP AND FALL CASE (SECOND DEPT). 26

SMOKE DETECTORS, LANDLORD-TENANT.

BUILDING OWNER NOT LIABLE FOR ALLEGED FAILURE TO ENSURE A SMOKE DETECTOR WAS FUNCTIONAL, DESPITE THE ALLEGATION THE OWNER REGULARLY INSPECTED THE SMOKE DETECTORS (FIRST DEPT). 27

THIRD-PARTY ASSAULT, LANDLORD-TENANT.

QUESTIONS OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER AND WHETHER THE LANDLORD HAD NOTICE OF THE DEFECTIVE DOOR LOCK IN THIS THIRD-PARTY ASSAULT CASE; LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 28

TRAFFIC ACCIDENTS.

DEFENDANT DRIVER HAD THE BURDEN TO PROVE FREEDOM FROM COMPARATIVE NEGLIGENCE IN THIS TRAFFIC ACCIDENT CASE; DEFENDANT FAILED TO ELIMINATE QUESTIONS OF FACT ABOUT WHETHER HE WAS TRAVELLING TOO FAST AND WHETHER HE KEPT A PROPER LOOKOUT FOR PLAINTIFF BICYCLIST; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 29

TRAFFIC ACCIDENTS.

DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE; DEFENDANT MADE A LEFT TURN IN FRONT OF PLAINTIFF’S MOTORCYCLE (FOURTH DEPT). 30

TRUSTS AND ESTATES, TRUSTEES.

THE TRUST-ASSET-SUBSTITUTION AGREEMENT, SUBSTITUTING LIFE INSURANCE FOR CERTAIN ASSETS, WAS SUBJECT TO EPTL 11-1.7(a)(1); THEREFORE THE PROVISION OF THE AGREEMENT RELEASING THE TRUSTEE FROM LIABILITY WAS AGAINST PUBLIC POLICY AND THE TRUSTEE IS LIABLE FOR FAILING TO ENSURE THE LIFE INSURANCE PREMIUMS WERE PAID (SECOND DEPT). 30