Fourth Department

Fourth Department Issues Another Decision Regarding Labor Law 240(1) Claim Based on Fall From Truck Bed

In Amantia v Barden & Robeson Corp., 2007 NY Slip Op 02159, at issue was whether Labor Law s. 240(1)applied to the plaintiff's injuries which were sustained when the plaintiff fell from the bed of a cargo truck.  The Court explained the manner in which the accident occurred as follows:

The truck's cargo floor was 48 inches above the ground. In order to enter the cargo area of the truck, plaintiff leaned one of the (3 feet high and 4 foot wide aluminum) forms against the rear bumper of the truck and climbed up the form. When plaintiff wanted to exit the cargo area of the truck for his lunch break, he again leaned a form against the rear bumper and began to step down from the truck onto the form. On his second step, "the form tilted to the right" and plaintiff fell. Plaintiff does not know what caused the form to tilt to the right.

The Fourth Department concluded that summary judgment dismissing this claim was properly granted:

Contrary to the contention of plaintiff, his work n unloading the cargo truck, including entering and exiting the truck, does not trigger the protections of section 240 (1) "because there was no exceptionally dangerous condition posed by the elevation differential between the [cargo floor] of the truck and the ground, and there was no significant risk inherent in the particular task plaintiff was performing because of the relative elevation at which he was performing that task" (Tillman v Triou's Custom Homes, 253 AD2d 254, 257; see Toefer v Long Is. R.R., 4 NY3d 399, 408; Piccolo v St. John's Home for Aging, 11 AD3d 884, 885; Santoro v New York City Tr. Auth., 302 AD2d 581, 582; Plump v Wyoming County, 298 AD2d 886, 886-887).

It appears that this decision is in line with the recent Court of Appeal's decision in Keavey v. New York State Dormitory Auth., 2006 NY Slip Op 0344 that was previously discussed here.  In that post, I'd noted that in my opinion, the Fourth Department had issued conflicting decisions in regard to falls from truck beds that pre-dated the Court of Appeal's decision in Keavey. 

I think that despite its prior holding to the contrary in Worden v. Solvay Paperboard, LLC , the Court's decision in Amantia makes it clear that injuries sustained as a result of a fall from a truck bed will no longer form the basis for a successful Labor Law s. 240(1)in the Fourth Department.

Fourth Department Considers Whether Labor Law 240(1) Applicable

In a recent Fourth Department decision, Brown v Concord Nurseries, Inc., 2007 NY Slip Op 00795, The plaintiff was injured when he fell from a ladder.  At issue was whether the work being performed by the plaintiff at the time of his fall constituted a repair of the building, thus falling within the ambit of Labor Law s. 240(1), or was instead excludable as routine maintenance.  At the time of his injury, the plaintiff was clamping a broken torsion spring of an overhead door.

The Fourth Department concluded that trial court properly denied the defendant's motion for summary judge on the Labor Law s. 240(1) claim:

The court properly determined that the work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented the proper functioning of the overhead door of a storage building at defendant's nursery complex, constituted the repair of a building rather than routine maintenance and thus constituted "an activity protected under the statute" (Shapiro v ACG Equity Assoc., 233 AD2d 857, 857; see Bruce v Fashion Sq. Assoc., 8 AD3d 1053; Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 972-973; cf. Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53).

This holding isn't particularly surprising since the Court concluded that that the overhead door was not functioning properly as a result of the broken spring.   Last November the Third Department also considered the issue of whether the work being performed by the plaintiff when he was injured constituted routine maintenance.  That case is discussed here.

Fourth Department Concludes Continuous Care Doctrine Inapplicable

In Trimper v Jones, 2007 NY Slip Op 00905, the plaintiff commenced a medical malpractice claim on behalf of her deceased husband alleging that her physicians failed to timely diagnose his skin cancer.  The plaintiff contended that the continuous treatment doctrine applied to toll the applicable statute of limitations period. 

The applicable timeline for the treatment rendered to the decedent is as follows:

  1. October 1999--Dr. Jones excises and biopsies non-malignant mole
  2. January 2001--Visit to Dr. Jones for eczema flare up
  3. March 2002--Visit to Dr. Jones for eczema flare up--informs Dr. Jones that he has lump under arm and is referred to internist, who removes lump and determines it is metastatic melanoma
  4. Decedent never sees Dr. Jones again

The Court disagreed with the plaintiff and concluded that the continuous care doctrine was inapplicable:

It is well established that the continuous treatment doctrine does not apply unless there has been a course of treatment established with respect to the condition that gives rise to the lawsuit...The failure to make a timely diagnosis and establish a course of treatment does not toll the statute of limitations because "omissions . . . do not amount to a course of treatment' "...Here, there was no treatment for skin cancer by Dr. Jones. Indeed, according to the results of the biopsy of the mole excised by her, the mole was benign...Plaintiff failed to present any evidence demonstrating that Dr. Jones undertook a course of treatment for skin cancer, and thus the court properly granted defendants' motion.  (Internal citations omitted)

While I tend to have a slight pro-plaintiff bias (even in med-mal cases, despite the fact that I come from a family of physicians and health care providers), I agree with the Court on this one.  I don't see the basis for the application of the continuous care doctrine.  Perhaps an examination of the record on appeal would shed some light on this issue, but based on the facts as set forth in the opinion I simply don't see support for the contentioin that there was a course of treatment by Dr. Jones for the cancer that caused the decedent's death.

Fourth Department Decisions of Interest

As I mentioned a few days ago, the Fourth Department recently handed down a number of decisions that caught my eye.   Here is a round up of a few of the shorter, but still interesting, holdings for the civil litigators out there:

Moore v Gawel, 2007 NY Slip Op 00911--Upon a motion for summary judgment on the issue of serious injury, the Court ruled:

(P)laintiff alleges that he sustained a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system.  Defendant met his initial burden with respect to those categories by submitting the affirmation of his expert orthopedic surgeon asserting that plaintiff suffered no injury in the accident, the bulging discs at L4-L5 and L5-S1 are a result of degenerative changes rather than acute trauma, and the bulging discs do not...Plaintiff, however, raised triable issues of fact with respect to those categories by submitting the expert opinion of his treating chiropractor who relied upon objective proof of plaintiff's injury, provided quantifications of plaintiff's loss of range of motion along with qualitative assessments of plaintiff's condition, and concluded that "plaintiff's injury was significant, permanent, and causally related to the accident"...

Yardley v Aaserud, 2007 NY Slip Op 00895--Appeal dimissed due to incomplete record on appeal in case alleging personal injuries resulting from a motorcycle accident:

We conclude that the appeal must be dismissed because defendant failed to include in the record on appeal documents that were submitted in support of the motions...In support of his motion for summary judgment, plaintiff submitted an affidavit from a claims adjuster. Although the affidavit states that transcripts of two interviews with eyewitnesses are attached, the attachments are not in the record on appeal. That affidavit, as well as the attached exhibits, was incorporated by reference into plaintiffs' motion for partial summary judgment. In the absence of those exhibits, we cannot review defendant's contentions.

Kimpland v Camillus Mall Assoc., L.P. 2007 NY Slip Op 00865--Defendant failed to meet its burden of proof on summary judgment motion in a slip and fall case:

Defendant failed to meet its burden of establishing that it did not create or have actual or constructive notice of the allegedly defective condition...In support of its motion, defendant submitted only the pleadings and the deposition testimony of plaintiff, where plaintiff testified that he slipped on black ice in defendant's parking lot. Defendant submitted no evidence to establish "that the ice formed so close in time to the accident that [it] could not reasonably have been expected to notice and remedy the condition"...

Fourth Department Considers Intersection of Foreseeability and Duty

Haymon v Pettit, 2007 NY Slip Op 00943, arises from an interesting set of facts.  The defendant owned and operated a stadium and had a policy in which two free tickets to a baseball game were given to anyone that returned a foul ball.  The plaintiff in this case was a mother who brought suit on behalf of her son, a young boy that had been standing outside the stadium waiting for foul balls and was hit by a vehicle when he ran into the street after a foul ball.

The Fourth Department concluded that the defendant owed no duty to the injured boy: 

Defendant, as an adjoining landowner, owed no legal duty to plaintiff's son under the circumstances of this case... Although it may have been foreseeable that a person would run into the street to pursue a foul ball, it is well established that foreseeability of harm does not define duty... (Internal citations and quotations omitted)

The dissenting justices disagreed stating that:

(W)e conclude that defendant Auburn Community Non-Profit Baseball Association, Inc. played a significant role in creating the danger that resulted in the injuries to plaintiff's son by providing an incentive for retrieving and returning foul balls hit out of the stadium onto a public street...

It's a thorny issue and one that is not easily determined.  Exactly what is foreseeable and how does foreseeability relate to duty? 

It's always instructive in cases involving foreseeability to re-visit the landmark decision Palsgraf v. Long Island R.R. Co., 248 NY 339, 162 N.E. 99 (1928).  The following language from that decision tends to make me side with the dissent:

The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension...This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye"...

In this case, the possibility of an accident should have been clear to the defendant.  The risk of a child running into the street after a foul ball was reasonably perceived and thus a duty to the child was readily apparent.  At least, that's the way I see it.

But, as we all know, reasonable minds can differ.  Foreseeability, like reasonableness, is in the eye of the beholder and you never really know where the court will fall on this issue.  I don't think that the Fourth Department was necessarily wrong on this one--I just tend to agree with the dissent.

Did Police Officer Act Recklessly When He Entered Intersection?

The Fourth Department handed down a number of interesting decisions yesterday, and I'll be posting about a few of them over the next few days.

Today, let's consider this case:  Ham v City of Syracuse, 2007 NY Slip Op 00759.  At issue in Ham was whether the actions of a police officer responding to an emergency call were reckless.  The police officer was driving his police cruiser when he approached a red light at a blind intersection.  As he reached the intersection, he either stopped for a second or two and then inched into the intersection (his deposition testimony), or he slowed down to a "creep" as he entered the intersection (his partner's deposition testimony).  It was undisputed that he did not use his siren or activate his lights prior to entering the intersection.  And,of course, a collision occurred as he entered the intersection, which resulted in this lawsuit.

The Fourth Department first noted the legal standards that apply to emergency vehicles on official business--that is that ordinary negligence does not apply and liability may attach only if the operator of the vehicle was acting recklessly:

"The manner in which a police officer operates his or her vehicle in responding to an emergency call may not form the basis for civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others" (Badalamenti v City of New York, 30 AD3d 452, 452; see Vehicle and Traffic Law § 1104 [e]; Saarinen v Kerr, 84 NY2d 494, 501-502). "The officer's conduct will violate this standard if the officer has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" (Palmer v City of Syracuse, 13 AD3d 1229, 1230 [internal quotation marks omitted]; see Szczerbiak v Pilat, 90 NY2d 553, 557; Lupole v Romano, 307 AD2d 697, 698).

The Court then concluded that although the defense had met its burden as the party moving for summary judgment by establishing that the officer's actions were reasonable, the plaintiffs had successfully created an issue of fact as to whether "defendant acted in reckless disregard for the safety of others by entering a blind intersection against the red traffic light at a questionable speed without first activating his emergency lights and siren." 

I wholeheartedly agree with the Court's decision in this case.  There was definitely an issue of fact as to whether the failure to activate the lights and siren was reckless.  Had the siren and/or lights been activated, it might have been a different story.

Pataki Appoints 3 Judges to Appellate Division, 4th Department

As reported in Buffalo Business First, Governor Pataki designated three Western New York Justices to fill the vacancies in the Fourth Department:  Eugene Fahey, Robert Lunn, and Erin Peradotto (hat tip:  Outside Counsel).

From the article:

Fahey, has been a state Supreme Court justice since 1997. He was previously a Buffalo City Court justice from 1995 to 1997 and a former Buffalo councilman and mayoral candidate.

Lunn is a former Monroe County assistant district attorney and Town of Penfield Town Justice. He has been a state Supreme Court Justice in the Seventh Judicial District since 1995. In August 2005, he was tapped to serve on the Appellate Division, Second Division.

Peradotto has served as a state Supreme Court Justice in the Eighth Judicial District since 2004. Peradotto was an assistant attorney general for the state Attorney General's Office and has an extensive private practice, focusing on personal injury litigation.

Patricia Fell Down and Broke Her Crown And I Guess We'll Never Actually Know If She Boosted

Baumeister v. Town of Cheektowaga, 2006 NY Slip Op 08358, is an interesting Fourth Department decision.  The plaintiff, who was apparently disabled in some fashion, was accused of shoplifting at a grocery store and was taken in to custody by store security.  Shortly thereafter, the police for the Town of Cheektowaga showed up and took custody of her, at which point she fell and was injured.  She filed suit, seeking to recover for her injuries, subsequently died for reasons unrelated to her fall, and her estate continued to pursue the claim on her behalf.

The Court concluded that the store owed no duty to the plaintiff at the time of the accident since its security officers had relinquished custody of her to the police prior to the accident occurring.  The Court also rejected the claim that the store had a duty to warn the police of her mental and physical disabilities since it  " submitted evidence establishing that it did not know, and had no reason to know, of decedent's alleged disabilities."

The Court also held that the Town was entitled to summary judgment since the manner in which the plaintiff was injured was not reasonably foreseeable and thus no duty of care was breached.

That's all fine and dandy, and legally, I can see where the Court's coming from.  But, I'm not a happy camper.   The Court totally left me hanging.

What I really want--nay--need to know is: Did she boost from the store or not?  Was the plaintiff the victim of a horrible misunderstanding or was it a valid arrest gone bad?

The Court ignored the first rule of storytelling and completely ignored the reader:  "Patricia, (who was somehow disabled but we're not elaborating any further) fell down and broke her crown while in police custody after being accused of shoplifting.  She later died of unrelated causes.  Case dismissed.  The End."   

It's the equivalent of sending Jack and Jill up the hill for no apparent reason, thus causing you to lose sleep at night wondering why they trudged up the hill in the first place.  Mother Goose is probably rolling over in her grave. 

I can't say that I blame her.

Pass me an Ambien, will you?

What's More Fun Than Beef Jerky?

Schirmer v Board of Educ. of Spencerport Cent. School Dist., 2006 NY Slip Op 08574, a recent Fourth Department case, brought back a flood of unwelcome memories of torturous hours spent in study halls in high school, while at the same time inexplicably reminding me of the innumerous hours that I spent as a teenager laughing until my sides hurt while listening to the Jerky Boys (my all-time favorite line being "Right. And I'll bring all my shoes and my glasses with me so I have them.")

Oh, those were the days.  But, I digress.

You're probably wondering why this case sent me on a long, strange trip down memory lane.  Well, wonder no more, my good readers.  Sit right down and I'll tell you a tale about an infant plaintiff that sustained an eye injury during an unsupervised study hall when he was hit by a wayward piece of beef jerky that was being thrown back and forth between the infant defendants.  One of the infant defendants, Mannix, was supposed to be in the study hall, while the other was not.

And, why, you might ask, were they flinging beef jerky across the room?    As explained by the Court in my favorite line from the opinion:  "It is undisputed that the two students were throwing the beef jerky for fun..."  Yep, that's right, for fun.  I mean, what could possibly be more fun than beef jerky?  These kids sure know how to partaaaay.  Life of the party, I tell you.

Perhaps you're curious about the legal issues and the Court's holding in this case.  Ask and ye shall receive:

We conclude that the activity engaged in by the two students was not "so inherently dangerous that mere participation therein [was] negligence" ...Thus, Supreme Court properly granted the motion of Mannix seeking summary judgment dismissing the amended complaint against him.

The evidence submitted by defendant in support of its motion established that there were at times 50 or more students attending the honors study hall; the study hall was not supervised by an adult; the study hall was only periodically monitored by an adult to determine whether there were students present who did not have the requisite "honors" pass; defendant had notice of three prior incidents wherein objects were thrown by students attending the study hall without the requisite "honors" pass; and defendant had notice of one prior incident wherein a student was injured by another student while attending the unsupervised study hall. That evidence raises triable issues of fact whether defendant adequately supervised the students attending the study hall and whether the injuries sustained by plaintiff's son were a foreseeable result of the "absence of adequate supervision"...