Negligence Update March 2019

Negligence Update March 2019

Course #TRT0854 (Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

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

This Course Is Appropriate 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 March 1, 2019 and March 31, 2019 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 March 2019”) 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 March 2019”), 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 March 2019

Negligence Update March 2019 Attorney Affirmation

Negligence Update March 2019 Evaluation Survey

Topics Covered in the “Negligence Update March 2019” 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 March 2019”

ARCHITECTURAL MALPRACTICE.

ARCHITECT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, THE FACT THAT ANOTHER PARTY PLACED THE ANGLE IRON WHICH INJURED PLAINTIFF IN AN EFFORT TO FIX AN ALLEGED DEFECT IN THE DESIGN OF THE SUBJECT BOILER SYSTEM DID NOT CONSTITUTE A SUPERSEDING CAUSE OF PLAINTIFF’S INJURY AS A MATTER OF LAW (FIRST DEPT). 7

DAMAGES.

DAMAGES AWARDED 69-YEAR-OLD PLAINTIFF FOR PAST AND FUTURE PAIN AND SUFFERING DEEMED EXCESSIVE (FIRST DEPT). 8

EDUCATION-SCHOOL LAW, SUPERVISION.

LACK OF SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF STUDENT’S FALL, PLAINTIFF WAS ENGAGING IN AGE-APPROPRIATE BEHAVIOR TAKING TURNS JUMPING OVER A KNEE-HIGH FENCE WHEN SHE FELL AND WAS INJURED, SCHOOL DISTRICT’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT). 8

EDUCATION-SCHOOL LAW, THIRD-PARTY ASSAULT.

QUESTION OF FACT WHETHER SCHOOL BUS DRIVER AND MONITOR TOOK APPROPRIATE STEPS AFTER THE FIGHT IN WHICH PLAINTIFF STUDENT WAS INJURED BROKE OUT ON THE BUS (SECOND DEPT). 9

EDUCATION-SCHOOL LAW, THIRD-PARTY ASSAULT.

STUDENT ON STUDENT ASSAULT WAS NOT FORESEEABLE, THEORIES IN THE PLEADINGS WHICH WERE NOT MENTIONED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT). 10

GROSS NEGLIGENCE, CONTRACT, LOW BID FOR HIGHWAY PROJECT.

QUESTION OF FACT WHETHER GROSS NEGLIGENCE MIGHT OVERCOME A CONTRACTUAL LIMITATION ON LIABILITY (FIRST DEPT). 11

HIGHWAYS, DANGEROUS CONDITION.

QUESTIONS OF FACT WHETHER STATE HAD CONSTRUCTIVE NOTICE OF THE CONDITION OF THE ROAD WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT (THIRD DEPT). 11

INDEPENDENT MEDICAL EXAMINATION, PRIVILEGE.

NOTES TAKEN BY AN OBSERVER HIRED BY PLAINTIFF’S ATTORNEY TO WITNESS AN INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BY DEFENDANTS’ DOCTOR ARE PRIVILEGED AS MATERIAL PREPARED FOR TRIAL, THE OBSERVER WAS ACTING AS AN AGENT OF PLAINTIFF’S ATTORNEY (FIRST DEPT). 12

MEDICAL MALPRACTICE, DEAD MAN’S STATUTE.

DECEDENT’S CONSENT TO SURGERY SUBMITTED IN SUPPORT OF SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT VIOLATE THE DEAD MAN’S STATUTE, THE CONSENT WAS AUTHENTICATED BY THE MEDICAL RECORDS (SECOND DEPT). 13

MEDICAL MALPRACTICE, EXPORT OPINION.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND IMPROPERLY RAISED AN ISSUE NOT DISCERNABLE FROM THE PLAINTIFF’S BILL OF PARTICULARS (SECOND DEPT). 14

MEDICAL MALPRACTICE, MUNICIPAL LAW.

LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION, SERVED THREE YEARS AFTER THE DEVELOPMENTALLY DELAYED CHILD’S BIRTH, SHOULD HAVE BEEN DEEMED TIMELY SERVED (SECOND DEPT). 15

MEDICAL MALPRACTICE, SUPERVISION.

ACTION BASED UPON FAILURE TO SUPERVISE PLAINTIFF’S USE OF A HOSPITAL REST ROOM SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, THE ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT). 16

MEDICAL MALPRACTICE.

AUDIT TRAIL, I.E., METADATA SHOWING WHO ACCESSED PLAINTIFF’S MEDICAL RECORDS, WHERE AND WHEN THEY WERE ACCESSED, AND ANY CHANGES TO THE RECORDS, WAS DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION ALLEGING IMPROPER TREATMENT AFTER SURGERY (SECOND DEPT). 16

MEDICAL MALPRACTICE.

DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AWARDING NO DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING OR FUTURE LOST WAGES SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED HER CHILD WAS INJURED IN UTERO (SECOND DEPT). 17

MUNICIPAL LAW.

ALTHOUGH PLAINTIFFS APPEARED FOR THE 50-h HEARING, PLAINTIFFS’ ATTORNEY REFUSED TO LET THE PLAINTIFFS TESTIFY UNLESS EACH PLAINTIFF COULD HEAR THE OTHER’S TESTIMONY, BECAUSE THE 50-h HEARING IS A CONDITION PRECEDENT TO BRINGING SUIT, PLAINTIFFS’ LAWSUIT WAS PROPERLY PRECLUDED (SECOND DEPT). 18

MUNICIPAL LAW.

ELDERLY PLAINTIFF’S HEALTH PROBLEMS EXCUSED HER FAILURE TO APPEAR FOR A 50-h HEARING, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). 19

MUNICIPAL LAW.

UNEXCUSED FAILURE TO APPEAR AT A SCHEDULED 50-h HEARING REQUIRED DISMISSAL OF THE COMPLAINT (FOURTH DEPT). 20

PLAYGROUND, DANGEROUS CONDITION.

PLAYGROUND EQUIPMENT ON WHICH PLAINTIFF’S SON WAS INJURED, ACCORDING TO EXPERT EVIDENCE, WAS IN COMPLIANCE WITH APPLICABLE GUIDELINES AND STANDARDS, WAS PROPERLY MAINTAINED AND WAS NONHAZARDOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 20

PRODUCTS LIABILITY.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS FARM EQUIPMENT PRODUCTS LIABILITY ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 21

RES IPSA LOQUITUR.

PLAINTIFF WAS STRUCK BY A FACE PLATE WHICH FELL OFF AN AIR CONDITIONER, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE UNDER THE DOCTRINE OF RES IPSA LOQUITUR, DEFENDANTS RAISED QUESTIONS OF FACT ABOUT THE CAUSE AND EXCLUSIVE CONTROL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SEOND DEPT). 22

SLIP AND FALL, ESCALATOR.

DEFENDANT DID NOT ELIMINATE QUESTIONS OF FACT CONCERNING WHETHER IT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS ESCALATOR SLIP AND FALL CASE, ANY CONFLICT IN PLAINTIFF’S TESTIMONY DID NOT RENDER IT INCREDIBLE AS A MATTER OF LAW, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 23

SLIP AND FALL, OPEN AND OBVIOUS.

PLAINTIFF FELL INTO A THREE-FEET-DEEP HOLE, QUESTION OF FACT WHETHER THE HOLE WAS AN OPEN AND OBVIOUS CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT 23

SLIP AND FALL, STORM IN PROGRESS.

DEFENDANTS’ PROOF DEMONSTRATED THE SNOW STORM WAS OVER 12 HOURS BEFORE PLAINTIFF’S SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 24

SLIP AND FALL.

CAUSE OF THE SLIP AND FALL WAS NOT BASED UPON PURE SPECULATION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 25

SLIP AND FALL.

DEFENDANT DID NOT SHOW A LACK OF CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 26

SLIP AND FALL.

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WET CONDITION ON THE STAIRS IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). 26

SLIP AND FALL.

DEFENDANTS DID NOT DEMONSTRATE THRESHOLD STRIP WHICH ALLEGEDLY CAUSE PLAINTIFF TO SLIP AND FALL WAS NOT INHERENTLY DANGEROUS AND TRIVIAL AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 27

SLIP AND FALL.

DEFENDANTS DID NOT SUBMIT EVIDENCE SHOWING WHEN THE SIDEWALK WAS LAST INSPECTED IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 28

SLIP AND FALL.

EVEN WHERE A CAUSE OF ACTION HAS NOT BEEN PROPERLY PLED THE COURT WILL SEARCH THE RECORD TO DETERMINE WHETHER THERE IS AN ACTIONABLE CLAIM IN RESPONSE TO A DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, HERE IN THIS SLIP AND FALL CASE THERE WAS NO EVIDENTIARY SUPPORT FOR CERTAIN CAUSES OF ACTION AGAINST THE BUILDING OWNER (FIRST DEPT). 28

SLIP AND FALL.

MERELY QUESTIONING THE CREDIBILITY OF PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER STAIRWAY SLIP AND FALL DID NOT RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 29

SLIP AND FALL.

QUESTION OF FACT WHETHER DEFENDANT IN THIS SLIP AND FALL CASE HAD CONSTRUCTIVE KNOWLEDGE OF MELTED ICE CREAM ON THE STAIRS, THERE WAS EVIDENCE THE ICE CREAM HAD BEEN THERE FOR AT LEAST THREE HOURS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 30

SLIP AND FALL.

QUESTION OF FACT WHETHER DEFENDANTS HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ELEVATED WHEEL STOP IN THIS SLIP AND FALL CASE (SECOND DEPT). 30

SLIP AND FALL.

THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL CALL COULD NOT BE IDENTIFIED, THE LIGHTER BURDEN OF PROOF PURSUANT TO THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT). 31

SLIP AND FALL.

SUPREME COURT SHOULD NOT HAVE SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO THE CITY IN THIS SIDEWALK SLIP AND FALL CASE, NO SUCH MOTION WAS BEFORE THE COURT (SECOND DEPT). 31

THIRD-PARTY ASSAULT, LANDLORD-TENANT.

PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT’S BUILDING, DID NOT RAISE A QUESTION OF FACT ON WHETHER THE ASSAILANT WAS AN INTRUDER OR A TENANT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). 32

TOXIC TORTS.

IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW TRIAL ORDERED (THIRD DEPT). 33

TRAFFIC ACCIDENTS, MEDICAL RECORDS.

DEFENDANTS’ DECEDENT’S PHARMACY RECORDS IN THIS BICYCLE-VEHICLE COLLISION CASE ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE AND MUST BE DISCLOSED SUBJECT TO TIME LIMITATIONS AND IN CAMERA REVIEW (FOURTH DEPT). 34

TRAFFIC ACCIDENTS.

DEFENDANT DRIVER HAD ONLY TWO SECONDS TO REACT TO FORKLIFT WHICH ENTERED THE ROADWAY BLOCKING THE RIGHT-OF-WAY, DRIVER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, NO COMPARATIVE NEGLIGENCE (SECOND DEPT). 35

TRAFFIC ACCIDENTS.

FAILURE TO PROVIDE SEATBELTS IN A TAXICAB VIOLATES THE VEHICLE AND TRAFFIC LAW AND IS NEGLIGENCE AS A MATTER OF LAW (FIRST DEPT). 36

TRAFFIC ACCIDENTS.

PLAINTIFF MADE A LEFT TURN IN FRONT OF DEFENDANT’S ONCOMING CAR WHEN DEFENDANT WAS FOUR CAR LENGTHS AWAY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ALLEGATION THE TRAFFIC LIGHT WAS YELLOW DID NOT RAISE A QUESTION OF FACT (FOURTH DEPT) 36

TRAFFIC ACCIDENTS.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NO LONGER NEED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT (FIRST DEPT). 37