Negligence Update March 2020

Negligence Update March 2020

Course #TRT0866 (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 March 1, 2020 and March 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 March 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.

Note: This course was submitted to the CLE Board for accreditation on July 21, 2020. Because the award of credit must await accreditation by the CLE Board, which has taken six months in the past, you may not receive your CLE Certificate of Attendance awarding credit for this course until approximately January 2021. The date on your CLE Certificate of Attendance will be the date you took the course.

Click on the links below for the written materials (“Negligence Update Pamphlet March 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 March 2020

Negligence Update March 2020 Attorney Affirmation

Negligence Update March 2020 Evaluation Survey

Topics Covered in the “Negligence Update March 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 March 2020”

MEDICAL MALPRACTICE.

CONFLICTING EXPERT OPINIONS PRECLUDED SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT). 4

PRODUCTS LIABILITY.

IN THIS DESIGN DEFECT PRODUCTS LIABILITY CASE, THE LOSS OF THE SPECIFIC PRODUCT WHICH CAUSED THE INJURY DID NOT PREVENT DEFENDANT-MANUFACTURER FROM PRESENTING A DEFENSE; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON SPOLIATION GROUNDS (FIRST DEPT). 4

PRODUCTS LIABILITY.

PLAINTIFF’S EXPERT DID NOT PRESENT ANY EVIDENCE DEMONSTRATING THE REMOTELY OPERATED CRANE COULD FEASIBLY BE MADE SAFER; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY CASE WAS PROPERLY GRANTED (THIRD DEPT). 5

SLIP AND FALL, LANDLORD-TENANT.

DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT ON THE DUTY OF CARE AND KNOWLEDGE ELEMENTS OF A SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 6

SLIP AND FALL.

A WORN MARBLE STEP IS NOT AN ACTIONABLE DEFECT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT). 7

SLIP AND FALL.

ABUTTING PROPERTY OWNER IS NOT RESPONSIBLE FOR TREE WELLS IN CITY SIDEWALKS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 7

SLIP AND FALL.

DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 8

SLIP AND FALL.

ICE ON SIDEWALK MAY HAVE PRE-EXISTED RECENT SNOW; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 9

SLIP AND FALL.

NON-MANDATORY STANDARDS FOR THE GAP BETWEEN A SUBWAY TRAIN AND THE PLATFORM PROPERLY ADMITTED IN THIS SLIP AND FALL CASE; HOWEVER THE EVIDENCE OF PRIOR GAP-RELATED ACCIDENTS SHOULD NOT HAVE BEEN ADMITTED; NEW TRIAL ORDERED (CT APP). 9

SLIP AND FALL.

PLAINTIFF ALLEGED THE LANDLORD’S FAILURE TO REPAIR SHOWER-CURTAIN BRACKETS CREATED THE DANGEROUS WATER-ON-THE-FLOOR CONDITION WHICH CAUSED THE SLIP AND FALL; AN OPEN AND OBVIOUS CONDITION CAN STILL BE A DANGEROUS CONDITION; LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 10

SLIP AND FALL.

PLAINTIFF APPARENTLY SLIPPED AND FELL BECAUSE OF LEAVES ON THE STAIRWAY; THE CONDITION WAS NOT BOTH “OPEN AND OBVIOUS” AND “NOT INHERENTLY DANGEROUS” AS A MATTER OF LAW; PLAINTIFF’S NEGLIGENCE IN DESCENDING THE STAIRWAY FURNISHED THE OCCASION FOR THE ACCIDENT, BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT (SECOND DEPT). 11

SLIP AND FALL.

WATER CAP IN A SIDEWALK WAS A TRIVIAL DEFECT, SLIP AND FALL ACTION PROPERLY DISMISSED (FIRST DEPT). 12

SPOLIATION.

CITY DEFENDANTS SHOULD HAVE BEEN SANCTIONED FOR FAILURE TO PRESERVE PRE-ACCIDENT POLICE COMMUNICATIONS IN THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE BECAUSE THE CITY DEFENDANTS WERE AWARE THEY WOULD PROBABLY ASSERT AN EMERGENCY DEFENSE (FIRST DEPT). 12

TOXIC TORTS, LEAD PAINT.

DEFENDANT, WHO CO-OWNED THE PROPERTY FOR A TWO-YEAR PERIOD, DEMONSTRATED HE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE HAZARDOUS LEAD PAINT CONDITION (FOURTH DEPT). 13

TRAFFIC ACCIDENTS.

$10.5 MILLION VERDICT FOR CONSCIOUS PAIN AND SUFFERING DEEMED EXCESSIVE IN THIS PEDESTRIAN TRAFFIC ACCIDENT CASE; PLAINTIFF ASKED TO STIPULATE TO $3 MILLION (FIRST DEPT). 14

TRAFFIC ACCIDENTS.

DRIVER/OWNER OF THE MIDDLE VEHICLE IN THIS CHAIN-REACTION REAR-END TRAFFIC ACCIDENT CASE IS NOT LIABLE (SECOND DEPT). 14

TRAFFIC ACCIDENTS.

SCHOOL BUS DRIVER ALLEGEDLY GESTURED TO PLAINTIFF TO MAKE A TURN AND PLAINTIFF’S VEHICLE WAS THEN STRUCK BY ANOTHER VEHICLE; THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (SECOND DEPT). 15

VEHICLE AND TRAFFIC LAW, NEGLIGENCE PER SE.

THE BUS DRIVER VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS NEGLIGENT AS A MATTER OF LAW; DEFENSE VERDICT SET ASIDE (THIRD DEPT). 16

WORKERS’ COMPENSATION.

PLAINTIFF’S SOLE REMEDY FOR HIS ON THE JOB INJURY IS WORKERS’ COMPENSATION; PLAINTIFF WAS NOT GRAVELY INJURED AND THERE WAS NO AGREEMENT WITH HIS EMPLOYER TO CONTRIBUTE, INDEMNIFY OR INSURE; THE EMPLOYER’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 17