Personal Injury

New York Court of Appeals Leaves Question of Fact to the Jury

Gavel2 The title of this post might seem to state the obvious, but in my experience, trial level and appellate courts seem all too eager to conclude that summary judgment is appropriate even where arguable issues of fact exist.

In Frutchey v Felicita  2008 NY Slip Op 06745, however, the New York Court of Appeals got it right in my opinion.  At issue was whether the defendant's motion for summary judgment was properly denied by the trial court.

The underlying facts of this personal injury lawsuit were set forth in the Third Department's decision:

This action arises out of a three-car accident that occurred on Route 427 in the Town of Ashland, Chemung County. At the time of the accident, it was snowing and the roadway was covered with two to three inches of slush. Defendant Jacqueline Felicita was traveling eastbound when she lost control of her vehicle and entered the westbound lane of travel where she collided with a westbound vehicle operated by Linda Nichols. Defendant Michael V. DeLosa was operating a westbound vehicle owned by defendant Allen's Plumbing, Heating and Air Conditioning, Inc. (hereinafter collectively referred to as defendants) behind Nichols and, when he observed Felicita cross over into his lane of travel, he immediately turned into the eastbound lane in an effort to avoid the collision. Unfortunately, Felicita's vehicle caromed off Nichols' vehicle back into the eastbound lane and collided with the vehicle driven by DeLosa...At the time of the accident, plaintiff Damon Frutchey, an infant, was a passenger in the Felicita vehicle and was seriously injured.

The Third Department concluded that the reaction of the operator of the vehicle owned by Allen's Plumbing was reasonable as a matter of law:

While it ordinarily is a question of fact as to whether a driver's response to an emergency is reasonable, where, as here, the evidence establishes the reasonableness of the driver's response, summary judgment is appropriate.

However, the New York Court of Appeals held that there were issues of fact regarding that driver's potential negligence,.  Specifically, the court noted that issues remained as to whether:

(1) defendant DeLosa acted negligently in traveling at an excessive speed and in following too  closely to Nichols's vehicle, given the road and weather conditions and, (2) if so, such negligence was a proximate cause of the accident (see Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994]...

There were absolutely issues of fact regarding DeLosa'a negligence, and to grant summary judgment in DeLosa's favor effectively decided those factual issues rather than letting the trier of fact make that determination.  Fortunately, the Court of Appeals corrected this error, and these factual issues will now be resolved by the appropriate party.

Statute of Limitations and Emotional Distress Claims

Gavel2 Statute of limitations cases always interest me, since they present unique issues, and Schultes v Kane 2008 NY Slip Op 03271 is just such a case.

Schultes offers an unusual factual scenario, and clarity on the issue of when the statute of limitations begins to run on emotional distress claims.

In this case, 30 years after the plaintiff and defendant divorced, the defendant, without the plaintiff's knowledge, had their children's bodies disinterred from a burial plot owned jointly by the parties and had the bodies placed elsewhere.

The plaintiff learned of this fact a few years later in 2005, and shortly thereafter filed a lawsuit alleging, inter alia, intentional and negligent infliction of emotional distress.  The husband alleged that her claims were precluded by the statute of limitations.

The Third Department disagreed:

The statutes of limitations do not bar plaintiff's causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress. "[A]s a general proposition, a tort cause of action cannot accrue until an injury is sustained. That, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual"...Because extreme emotional distress is an element of each of these causes of action, and plaintiff could not truthfully allege all of the elements until she suffered this element of injury, these causes of action did not accrue until she suffered distress as a result of learning that her children's bodies had been disinterred...As plaintiff commenced the action within two months after these causes of action accrued, the statutes of limitations had not expired...

Sounds about right to me. 

The NY Court of Appeals Considers the Issue of Grave Injury Yet Again

Gavel2 On Thursday, the New York Court of Appeals handed down Fleming v Graham, 2008 NY Slip Op 02502.  At issue was whether the plaintiff suffered from a "permanent and severe facial disfigurement" thus constituting a "grave injury" under Workers Compensation law s. 11. 

In reaching its decision, the Court noted that the legislative intent behind the enactment of WCL s. 11 was "to protect employers by limiting third-party actions against them 'except in extremely limited, defined circumstances.'"

The Court then turned to the task of determining whether a facial injury is a "permanant and severe...disfigurement" and concluded that:

While no conceivable standard can capture in toto the highly limited class of "severe" facial disfigurements contemplated by section 11, we nonetheless conclude that an injury disfigures the face when it detrimentally alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurement is severe, plaintiff's injury must greatly alter the appearance of the face from its appearance before the accident. The foregoing standard, ordinarily one for the court as a matter of law, removes the inquiry from plaintiff's subjective self-assessment and most closely approximates what the Legislature contemplated.

Applying that standard, the Court held that the plaintiff's injuries did not rise to that level in this case:

The photographs in the record show numerous scars. However, they demonstrate a steady progression from the initial injuries to scarring, to significant recovery...While in some cases that question is one properly for the jury, we determine that, on the facts of this case, Fleming's injuries do not rise to the level of a "severe" disfigurement. Although there are cases where a reasonable person might view multiple scarring as satisfying the standard we articulate here, this is not one of them.

Likely a frustrating decision for the third-party plaintiff (thanks to Louis Schepp's comment for pointing out the error in my original post) in this case since his case appears to be an exception to the general rule that the issue of grave injury is one for the jury.  Also frustrating is that it's a decision purporting to offer guidance that, in my opinion, offers very little and gives trial courts great leeway in deciding summary judgment motions on this "issue of fact" that can sometimes, apparently, be an issue of law, should a court be so inclined to interpret it as such. 

How Much of Your Finger Must Be Missing to Constitute a "Grave Injury"?

Gavel2 In Castillo v 711 Group, Inc., 2008 NY Slip Op 01255, the Third-Party Appellant apparently believed that although Workers' Compensation Law § 11 expressly defined "grave injury" as including the loss of one's index finger, the plaintiff did not suffer a grave injury since an "amputation stump" remained on his injured index finger.

Specifically, "the plaintiff demonstrated that he lost both interphalangeal joints of his left index finger, leaving a 'painful amputation stump" that required two corrective surgeries to desensitize.'"

Not surprisingly, the New York Court of Appeals rejected the Third-Party Appellant's argument and denied its motion for summary judgment, concluding that:

(The) plaintiff established that he suffered the "loss of an index finger" within the meaning of Workers' Compensation Law § 11 (cf. Mentesana v Bernard Janowitz Constr. Corp., 36 AD3d 769, 770 [2d Dept 2007]; Blackburn v Wysong & Miles Co., 11 AD3d 421, 422 [2d Dept 2004]; McCoy v Queens Hydraulic Co., 286 AD2d 425, 425 [2d Dept 2001]).

Thank goodness.  I don't know about you, but I'd have been both concerned and disconcerted had the court accepted the hyper-technical argument that no grave injury existed since a "stump" remained.

Flashback to Law School

Lawsuit_2The Daily Record was not published yesterday due to the holiday, so tune in next Tuesday for the next installment of my Legal Currents column.

In the meantime, let's take a brief jaunt back to law school, shall we? 

Hey!  Come back here!  Don't walk away.  It'll be fun this time around.  I promise.

My thoughts were drawn to law school a few days ago as I sat in the airport during our layover in Atlanta. I came up with a most-excellent law school exam question while watching the seemingly chaotic interplay of activity amongst the luggage handlers, traffic controllers, and airplanes.  I commented to my husband that the multiple parties and entities engaged in these endeavors was mind boggling, and as I began to expound on the possibilities of complex litigation should an accident occur, my decidedly non-lawyer husband's eyes began to glaze over.

I was still pondering this issue the next day when I ran into a lawyer that I know while out and about on important business.  We engaged in a brief discussion and he seemed far more interested in this topic than my husband had been, however we were unable to engage in a lengthy analysis of the issues presented  since we were required to mediate repeated disputes amongst those in attendance.

But, dear readers, I knew that you would appreciate the opportunity to analyze the scenario that I dreamed up while awaiting our flight.  It's more than a bit Palsgraf-like, which makes it all the more fun!

The scenario began to take shape when I noticed a luggage handler driving a baggage trolley with a  wayward piece of unsecured luggage sitting on top of the car. 

I wondered what would happen if the luggage fell off and onto the runway that the trolley was traveling across just before a plane departed...

Imagine if you will--Airline Bankrupt's employee forgot to place the loose piece of luggage in the trolley.  That very same piece of luggage was not properly screened by TSA (just as most cargo is not yet screened) and thus a number of butane lighters enclosed therein are overlooked.

The luggage falls onto the runway as the trolley crosses it.  The plane waiting for clearance to take off receives it from the federally employed air traffic controllers and begins to taxi down the runway.  The plane runs over the luggage at speeds of 60 mph and careens off the runway.  The butane in the luggage explodes (don't ask me how that occurred--we won't know the answer until we hire an expert).

The explosion startles a passenger on the plane with pre-existing heart problems and causes him to go into cardiac arrest.  Another passenger, a physician, runs to his side and she begins to render assistance.  Unfortunately, nothing can be done to save him.

Simultaneously, one of only 3 federal Marshalls on duty that day just happens to be on this plane.  He leaps into action and tackles the first Muslim person that he sees, whips out his taser and tases the poor woman, who later dies as a result of her injuries.

The plane stops spinning and comes to rest on the side of the runway.  As local emergency response personnel arrive upon the scene and rush toward the plane, one of them trips on a large crack in the runway and breaks her leg.  The county-owned airport had previously been notified of this defect and had scheduled repairs a week down the road.

Meanwhile, the head pilot, a long-time alcoholic, stumbles off the plane with bloodshot, glassy, watery eyes and a strong odor of alcohol emitting from his breath, puts his arm around a particularly attractive female law enforcement officer and mumbles "Wha's happening, occifer?"

Discuss the liabilities amongst yourselves. 

And, if you happen to be a law professor, feel free to use this example on one of your exams.  I'm just that generous.

New York Court of Appeals: You're out!

Gavel2_2 Last February I posted about a Fourth Department decision that raised interesting issues regarding foreseeability and duty of care.  The Fourth Department's decision was appealed and last week, the New York Court of Appeals issued its decision in Haymon v Pettit, 2007 NY Slip Op 09071.

In Haymon, 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 child.  I, on the other hand, found myself agreeing with the dissent and explained that:

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.

Lo and behold, reasonable minds can differ, as evidenced by the New York Court of Appeal's holding in this case.  The court upheld the Fourth Department's decision and concluded that no duty existed:

The Court is mindful that, in this case — unlike Darby — the Ball Club rewarded participants of its promotion with tickets. Important to our resolution, however, is that under the circumstances of this case, like Darby, there are inherent risks associated with crossing the street. Those risks are multiplied when doing so indiscriminately. Moreover, we do not view the Ball Club's promotion as contributing to a dangerous condition, for it only rewarded the retrieval of foul balls. We must assume that adults, and children of Leonard's age, will act prudently in doing so...

Under these circumstances, it is difficult to imagine what steps the stadium operator could have taken that would have sufficed to meet a duty. Thus, we are constrained from imposing a requirement that the stadium exercise control over non-patron, third persons outside its premises over whom it has no actual authority to do so.

After reading this decision, I'm all the more convinced that my original instinct was correct.

To assume that children will act prudently when attempting to win a prize is one heck of an assumption.  Kids are prone to imprudent behavior under normal conditions, but when excited and caught up in the moment, tend to throw all caution to the wind.  Any adult who has ever been around children knows this to be true. 

Likewise, the defendants should have foreseen that given that the stadium was situated near a busy street and that balls were frequently hit out of that stadium, people, especially young children, could easily be injured when excitedly chasing after a rapidly moving foul ball near a busy road.

That being said, the lone footnote in this case makes me wonder if this case is an example of bad facts leading to bad law:

Footnote 1: There is scant evidence in the record on this motion for summary judgment indicating whether or not Leonard even engaged in this activity for the purpose of receiving free tickets pursuant to the Ball Club's promotion. Leonard's sister testified that he left the house to go to the stadium, that he had money but "didn't want to spend it," and that he did not have a ticket but that "he had his glove with him" to try "to catch a [foul] ball." The sister added that Leonard "saved baseballs." Even viewing the evidence in a light most favorable to the non-moving party and giving the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96 [2006]), it is unclear whether plaintiff has succeeded in raising an issue of fact. Nevertheless, this becomes academic in light of our holding.

Call me cynical...I won't be offended.

New York Court of Appeals on the Issue of Whether Collateral Estoppel Applies to Civil Action Against Joel Steinberg

Gavel2Yesterday the New York Court of Appeals considered an interesting legal issue in the civil matter stemming from the same acts that resulted in former criminal defense attorney Joel Steinberg's conviction for manslaughter.  This was an infamous case that resulted in the horrible death of his 6-year-old adopted daughter, Lisa.

In Launders v Steinberg 2007 NY Slip Op 07499, the birth mother and administratix of Lisa's estate commenced an action against Steinberg alleging, in part, two claims for prior acts of abuse (fifth and sixth causes of action) and one claim that Steinberg, despite having actual notice that Lisa sustained a life-threatening injury, recklessly and dangerously failed to take reasonably prudent action to secure medical treatment for her (seventh cause of action). 

At issue was whether the trial court properly granted summary judgment in favor of plaintiff as to the three causes of action described above by invoking the doctrine of collateral estoppel based upon his prior manslaughter conviction.

The Court first set forth the applicable law relating to collateral estoppel:

In order to invoke the doctrine of collateral estoppel, "[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling" (Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]).

The Court then held that the doctrine of collateral estoppel was inapplicable to the fifth and sixth causes of action in this case:

Here, the jury in defendant's criminal trial was not required to determine whether Lisa was subjected to repeated physical abuse by defendant during the months prior to the acts resulting in her death. Although evidence of prior acts of abuse was presented at defendant's criminal trial, the issue was not "necessarily decided" therein. Thus, Supreme Court's award of summary judgment on plaintiff's fifth and sixth causes of action must be vacated and a new trial held on liability on these causes of action.

No More Movie Theaters For Me

Cooper v Carmike Cinemas, Inc. 2007 NY Slip Op 05028, is a case that has cemented my love for Netflix.  In Cooper, the plaintiff was injured when he stepped on a nail while a patron at the defendant's movie theater.  As a result of the injury, his foot became infected and had to be amputated

See what I mean? Netflix, all the way, baby!

But I digress--and then some.

The Fourth Department held, correctly, in my opinion, that the trial court inproperly denied the defendant's motion for summary judgment on the grounds that the plaintiff could proceed on the theory of res ipsa loquitur.  The Court concluded that res ipsa loquitur was inapplicable since the record failed to establish that the nail that caused his injury was within the exclusive control of the defendant.

However, the Court held that the defendant's motion for summary judgment was properly denied on another basis:

Defendant failed to meet its burden of establishing as a matter of law that it did not create the dangerous condition...nor did it establish that it lacked actual or constructive notice of the dangerous condition...We note in particular with respect to notice that, in support of its motion, defendant submitted the deposition testimony of several of its former employees, none of whom had any personal recollection of the manner in which defendant's theaters were cleaned or the frequency of the cleaning at or near the time of the incident. ...Defendant submitted no evidence that the theater had been cleaned and inspected during a period of time that was close to the time of plaintiff's injury. Thus, "defendant failed to establish that the [nail] had not been on the floor for a sufficient length of time to permit an employee to discover and remedy the condition"...

I bet the defense would have been granted summary judgment in a heartbeat if the motion had included affidavits from employees with personal knowledge rather than relying on deposition testimony.  Sometimes it seems like it might save time and be a lot easier to rely on excerpts from depositions, but in my experience it generally creates more work down the road than if you'd spent a little time up front to get the information that you need in affidavits that you've prepared.

Occasionally you can find snippets of testimony from deposition transcripts that support your motion, but it's rare to find exactly what you require.  Obviously, you can use deposition testimony from witnesses for your opponent, since you won't be able to obtain affidavits from them unless of course opposing counsel provides them in support of their response, although those affidavits are generally not helpful for your position).

But, when it comes to agents of your client, your best bet is almost always to obtain affidavits and utilize the deposition transcripts as further evidence of the point that you're trying to make.

Another issue that arises when using deposition transcripts to support you motion is whether to attach the relevant excerpts of the transcripts or to attach the transcripts in their entirety.

There are two camps on this.  I've heard judges complain that lengthy motions with hundreds of pages of transcripts attached as exhibits is pointless and serves no purpose other than contributing to the demise of many poor trees.

I happen to be in the other camp, since I've found myself in the unenviable position of attempting to draft an interlocutory civil appeal on another attorney's file when only excerpts were included.  Let me assure you that it's extremely frustrating when the testimony that would really help your position on appeal is found on page 28 of the transcript, but only pages 23-27 were attached to the motion and thus are part of the record on appeal.

But, once again, I digress.

Back to my original point.  No more movie theaters for me.  In fact, I don't think I'll be leaving my house anytime soon.  It's a jungle out there.

Third Department on Admissibility of Subsequent Accidents

Gavel2 In Petrilli v Federated Dept. Stores, Inc., 2007 NY Slip Op 04389, the plaintiff was seriously injured after slipping and falling on clean, dry tiles located at the entrance of a department store owned by the defendants. 

Following a trial that resulted in a substantial verdict for the plaintiff, the defendant appealed and alleged, in part, that the trial court improperly allowed testimony regarding subsequent similar accidents. The defendant alleged that the proof of subsequent similar accidents is admissible only in design defect cases.

In this case, the plaintiff's theory of negligence was that he fell not because the tiles were wet or damaged, but rather because the tiles were inherently slippery.

The Third Department held that because the plaintiff was able to prove through his expert witness that the tile was negligently  placed at the entrance of the store, the trial court's determination was correct:

Although design defect cases present a classic situation where both prior and subsequent accidents are potentially relevant to establish that a dangerous condition existed, it is possible, as here, for a plaintiff to allege that a defendant used a product in such a manner as to create a permanent, or inherent, dangerous condition, without alleging any defect in the product itself. Here, through the use of expert testimony, plaintiff established that the product the tile was not defective, but was being negligently misused because it was an inappropriate choice of tile for the entrance to a store... Under such circumstances, records of subsequent accidents are relevant to establish whether the condition created by defendants was unreasonably unsafe...

Sounds about right to me, since It seems to me that in a sense, the defendant's alleged negligence--improperly using a certain type of tile in an entranceway--is actually a type of a design defect, at least as that term is commonly understood.  In other words, the entranceway was defectively designed because of the negligent decision to install those particular tiles.  And, evidence of subsequent falls is therefore relevant since it constitutes additional evidence that the decision to install those particular tiles was negligent and likely caused others to slip as well.

Fourth Department on Serious Injury

Gavel_2 At issue in Mc Carthy v Bellamy, 2007 NY Slip Op 0338, was whether the trial court properly denied the defendants' motioin for summary judgment. 

The plaintiff commenced the lawsuit seeking damages for injuries to her cervical spine allegedly sustained as a result of a motor vehicle accident.  The defendants subsequently brought a motion for summary judgment on the grounds that the plaintiff failed to allege serious injury. 

The Fourth Department concluded that the motion should have been granted:

"E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury——such as a gap in treatment, an intervening medical problem or a preexisting condition——summary dismissal of the complaint may be appropriate... Here, the record establishes that in 1999 plaintiff complained of left-sided neck pain that had persisted for three months, resulting in an x-ray showing "minimal spondylosis" and "possible minor cervical degenerative disease." Plaintiffs' failure to acknowledge or address that preexisting condition in opposition to the motion renders the opinion of plaintiffs' expert "speculative"...

We likewise agree with defendants that plaintiffs' failure to explain a 15-month gap in plaintiff's treatment renders summary judgment dismissing the complaint appropriate...(Internal citations and quotations omitted).

I suppose the lesson to be learned from this case, assuming the plaintiff's response to the defendants' motion is characterized accurately, is that it's probably not a good idea to ignore your opponents' assertions. Simply setting forth facts which establish serious injury without addressing the alleged weaknesses in your case is probably unwise--at least in the Fourth Department and most certainly in this case.