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Don't You Hate it When a Witness Does That?

The following is proof that despite all of your preparation before trial, you just never know what a witness will say once they're on the stand.

From today's post at Say What? comes the following transcript of the testimony of a character witness for one of the defendants during a drug trial:

Q. Are you familiar with the defendant's reputation in his community (Ft. Worth) for truth and veracity?

A. I guess that I am ...

Q. Just answer "yes" or "no."

A. Well, yes.

Q. Okay. Is his reputation good or bad?

A. It's about medium - sometimes he tells the truth and sometimes he don't.


Were Injuries Resulting From a Replacement Wheelchair Foreseeable?

Campbell v. Central N. Y. Regional Transp. Auth., 2006 NY Slip Op 03193, is a very interesting case in which the Fourth Department considered whether the injuries of a wheelchair-bound plaintiff that was hit by a bus were foreseeable.

The plaintiff suffered from "profound deformities" and as a result, used a highly customized wheelchair which was destroyed when hit by the bus owned by the defendant.  The plaintiff was forced to use a wheelchair on loan from a local medical facility that was not customized.  As a result, he developed "skin necrosis and abscess formation which required multiple surgical procedures to repair ...." and subsequently sued seeking recovery for those injuries and the replacement cost of his wheelchair.

The Court first noted that liability for negligence turns upon the foreseeability of any harm, not a particular harm and that once a prima facie case has been established, it is the province of the finder of fact to determine the legal cause of the injuries.

The Court further elaborated:

In order to establish a prima facie case, a plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury. Although there are times when [a]n interruption of the nexus between a defendant's negligence and the plaintiff's injury by the act of a third party may affect defendant's liability, the intervening act must be extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct.  When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist...Invariably, summary judgment is appropriate where only one conclusion may be drawn from the established facts.  (Internal citations and quotations omitted.)

Accordingly, the Fourth Department held that the trial court improperly dismissed the Complaint.

The dissent disagreed and stated that:

The record establishes, however, that plaintiff sustained only minor soft tissue injuries that do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d) and § 5104 (a). The record further establishes that the skin necrosis and abscess, which did not appear until approximately two months after the accident, were not related to any injury plaintiff sustained in the accident, but rather were caused by an ill-fitting replacement wheelchair. We must therefore conclude that, although the issue of proximate cause is ordinarily "for the fact finder to resolve," here the ill-fitting replacement wheelchair constituted an "independent intervening [occurrence] which operate[d] upon but [did] not flow from the original negligence".

I think that the majority is correct in regard to the foreseeability issue in this case.  But for the accident, the plaintiff's customized wheelchair would not have been destroyed, and he would not have ended up with abcesses, etc. due to the replacement wheelchair.  And, the injuries resulting from the inadequate replacement were not so outside the realm of possibility as to be unforeseeable.

However, the dissent touches upon an interesting issue regarding  whether the plaintiff's injuries (either directly resulting from the accident or from the non-customized wheelchair) constitute a serious injury.  I'm not sure of the answer, but my inclination would be that they don't.  Anyone else have an opinion either way?


Define That Term #103

Friday's term was quantum meruit, which is defined as:

(kwahn-tuhm mare-ooh-it) n. Latin for "as much as he deserved," the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. This may include a physician's emergency aid, legal work when there was no contract, or evaluating the amount due when outside forces cause a job to be terminated unexpectedly. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on quantum meruit by implying a contract existed.

Slickdpdx got it right.

Today's term is:

derivative action.

No dictionaries, please.


The Monday NY Blawg Round Up

Here's the second edition of the New York blawg round up:

Indignant Indigent:

Second Circuit Blog:

Second Opinions:

  • Unreviewable discretion--Discusses the recent 2d Circuit decision, Avendano-Espejo v. Department of Homeland Security

The Blatantly Political

For those of you who aren't all that thrilled with the current administration, I highly recommend that you check out the following video links, which have been making the rounds throughout the blogosphere over the last few weeks:

  • Pink singing "Dear Mr. President"
  • Al Gore's recent opening monologue for SNL
  • Stephen Colbert's speech at the White House Correspondents' Dinner

The NY Court of Appeals Takes the Bull by the Horns

The New York Court of Appeals recently decided a case with a great set of facts, wherein the plaintiff, a handyman, unwittingly wandered into the pen of Fred, a hornless dairy bull.  The plaintiff was accosted by the bull, and as a result, suffered from fractured ribs, a lacerated liver, and the exacerbation of a preexisting cervical spine condition.  I can only imagine what would have happened if Fred had horns.

In Bard v. Jahnke, 2006 NY Slip Op 03440, the Court considered the issue of whether a plaintiff is entitled to recover for injuries inflicted by a domestic animal, where the animal has shown no vicious propensities.  The Appellate Departments had reached differing conclusions when answering this question.  The Court of Appeals agreed with the Third Department and upheld its prior ruling in Collier v. Zambito, 1 NY3d 144, and concluded that once the criteria established in Collier is established, strict liability applies to injuries caused by a domestic animal.

In Collier, the Court set forth the following rule:

(T)he owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.

The Court noted that factors to be considered in making this determination include whether the owner had prior notice of vicious propensities, including whether the owner was aware that the animal had growled in the past, had acted in an otherwise threatening manner, or required restraint.

While I follow the logic of the Court's opinion, I have a hard time with the idea that a bull is considered to be a docile animal unless it has exhibited hostile tendencies in the past.  I'm inclined to follow the reasoning set forth in this quote from the dissent:

The comments to this Restatement section, quoted in the majority opinion (p 8-9), point out the application of this rule specifically to bulls: "[T]he keeper of a bull or stallion is required to take greater precautions . . . than . . . the keeper of a cow or gelding" (Restatement [Second] of Torts § 518, cmt g); "the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects . . . " (id., cmt h).

This decision is also discussed here, in an article from the New York Law Journal.


Define That Term #102

Wednesday's term was demurrer, which is defined as:

n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted sustained. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer. See also: motion pleading.

No one guessed.

Today's term is:

quantum meruit.

As always, no dictionaries, please.


NY Court of Appeals--Is a Single Charge of Attempted Murder Duplicitous When Identity of Victim Not Identified?

In People v. Wells, 2006 NY Slip Op 03639, the Court of Appeals considered a number of issues, including the defendant's contention that the indictment charging him with Attempted Murder in the First Degree for shooting at two police detectives was duplicitous since the evidence at trial failed to establish which detective he intended to kill.

In reaching its conclusion, the Court first analyzed the legal basis for the charges against Mr. Wells and set forth the relevant law regarding duplicitous charges:

A count of an indictment is duplicitous and, hence, defective if it charges more than one offense (see CPL 200.30 [1]; People v Keindl, 68 NY2d 410, 417-418 [1986]). If the commission of a single act constitutes a crime, "that act must be the only offense alleged in the count" and "acts which separately and individually make out distinct crimes must be charged in separate and distinct counts" (People v Keindl, 68 NY2d at 417) 

The Court then analyzed two prior relevant decisions:

As we explained in People v Fernandez (88 NY2d 777 [1996]), "actual death is not an element" of attempted murder and, therefore, the "identity of the person whose death" was intended is not relevant in determining whether the crime has been committed (id. at 783). The defendant in Fernandez was charged with attempted murder for firing a gun at a group of individuals and shooting a person named Correa. We ruled that it was proper to instruct the jury that it could convict the defendant of attempted murder if it found that he intended to cause the death of Correa or another person in the group (see id. at 783). And, in People v Cabassa (79 NY2d 722, 728 [1992], cert denied sub nom. Lind v New York, 506 US 1011 [1992]), we concluded that there was sufficient evidence to support an attempted first-degree murder conviction where a gun was fired indiscriminately toward two pursuing police officers who were in the same patrol car and at a police officer standing on the street next to a roadblock.

Accordingly, the Court concluded that it was not necessary for the prosecution to prove which officer the defendant was shooting at, and thus the count was not duplicitous:

The trial court's refusal to instruct the jury that it had to [*5]unanimously determine which detective defendant intended to kill did not render the attempted murder counts duplicitous because each charged a single crime based on a single incident — engaging in conduct (the shooting at Detectives Molina and Weston) that tended to effect the crime of murder while acting with the intent to cause the death of a police officer or another person.

While this decision seems to be in keeping with the Court's precedent on this issue, I'm not sure that I agree with it, since the premise seems illogical to me.  I think that the count is duplicitous since it arguably alleges that the defendant attempted to kill two people.  He fired two shots, and each bullet could have hit its target, thus resulting in the death of two people.  Thus, there should have been two counts of attempted murder charged, since the defendant's actions could have conceivably resulted in two deaths.

And, as far as I can see, it's a relatively simple fix--the prosecution simply has to charge the defendant with two counts of attempted murder, as opposed to only one count.  I'm not sure why the Court seems to be following an illogical line of thought, when the burden on the prosecution to prevent this issue from occurring is minimal.

But, perhaps there's an aspect to this issue that I've not thought of.  Do any current or ex-prosecutors (or criminal defense attorneys) out there care to clue me in if it appears that I'm totally off base?


Second Department Holds That Plaintiff Failed To Prove Serious Injury

In Cerisier v Thibiu, 2006 NY Slip Op 03526, the defendant moved for summary judgment on the basis that the plaintiff had failed to establish that he had suffered from a serious injury as a result of a motor vehicle accident. 

In opposition to the motion, the plaintiff submitted an MRI which showed a bulging disc and affirmations from the plaintiff's treating physician and neurologist which were not based upon recent examinations.

The Second Department concluded that the plaintiff had failed to establish that he had sustained a serious injury within the meaning of Insurance Law s. 5102(d).  The Court stated that:

The magnetic resonance images of the plaintiff's cervical and lumbar spine which showed bulging discs, did not, alone, establish a serious injury (see Kearse v New York City Tr. Auth., supra; Diaz v Turner, 306 AD2d 241; see also Hernandez v Taub, [*2]19 AD3d 368). The mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.

Accordingly, the Court granted the defendant's motion for summary judgment and dismissed the first cause of action. 

I wish that the Court had set forth the content of the physicians' affirmations.  It's unclear to me whether the affirmations contained no conclusions regarding the alleged physical limitations, or whether the Court is holding that any conclusions as to that issue are irrelevant since they're based on outdated physical examinations.


Comedic Break

Here's a to (hopefully) brighten your day:

At the start of an important trial, a small town attorney called his first witness to the stand. She seemed like a sweet, elderly woman. He approached her and asked, "Mrs. Jones, do you know me?"

She responded, "Why, yes, I do know you Mr. Williams. I've known you since you were a young boy. You've become a huge disappointment to me. You lie, you cheat on your wife, you manipulate people and talk about them behind their backs. You think you're a hot shot lawyer, when you haven't the brains to realize you never will amount to anything more than a two-bit paper pusher. Yes, I know you."

The lawyer was stunned. Not knowing what else to do he pointed across the room and asked, "Mrs. Jones, do you know the defense attorney?" She replied, "Why, of course I do. I've known Mr. Bradley since he was a youngster, too. I used to baby-sit him for his parents. And he, also, is a real disappointment. He's lazy, bigoted, never has a nice word to say about anybody, and he drinks like a fish. He's been divorced five times, and everybody knows that his law practice is one of the shoddiest in the entire state. Yes, I know him."

The judge rapped his gavel, to quiet the tittering among the spectators in the courtroom. Once the room was silent, he called both attorneys to his bench. In a quiet, menacing voice, he warned, "If either of you asks her if she knows me, you'll be jailed for contempt!"