Personal Injury

Liability of Landowner for Injuries Occurring at Unmarked Railroad Crossing

Gavel2_3According to the New York Court of Appeals, at least in this case...nope, no liability. 

In Clementoni v Consolidated Rail Corp., 2007 NY Slip Op 03792, the plaintiff was injured when he attempted to drive across unmarked railroad tracks on a private gravel road owned by one set of defendants and his automobile was struck by a train.  He'd driven across the railroad tracks on at least three times prior occasions and believed that the tracks were being usind by trains at the time that he drove across the tracks. 

He brought suit against the landowners who owned the gravel for failure to warn of a dangerous condition and also alleged that the other defendants, landowners who owned the land bordering the tracks, was liable for failing to  trim vegetation that impeded his view of the tracks.

As for the owners of the gravel road, the Court held that:

"[A]s a general matter, [a landowner] owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the [landowner] ha[s] created or contributed to it"...(The owners) had "no reason to expect that [plaintiff] would not observe the hazard or any conceivable risk associated with it"...(Internal citations omitted).

The Court then determined that the owners of the adjacent land were not liable either since "a landowner is generally not liable for the existence of uncut vegetation obstructing the view of motorists at an intersection."

Unfortunately, I've got nothing insightful or witty to add to this holding.  I'm at a loss.  Anyone else care to expound a bit?

Two Short, But Sweet NY Court of Appeals Decisions

The New York Court of Appeals recently handed down a number of interesting decisions.  Here are summaries of 2 short, but relevant, decisions:

  • Zorn v Gilbert, 2007 NY Slip Op 02793--The Court considered the issue of whether the continuous representation doctrine applied to toll the three year statute of limitations where legal malpractice was claimed.  The Court held that "(p)laintiff's cause of action accrued, at the latest, on December 4, 1997, when a judgment of divorce was entered in the underlying action...Defendants' representation of plaintiff in the underlying action ended, at the earliest, in June 1998. Inasmuch as this action was commenced in May 2001, the Appellate Division erred in holding that plaintiff's cause of action alleging legal malpractice was time-barred."
  • Branham v Loews Orpheum Cinemas, Inc. 2007 NY Slip Op 02792--The Court held that summary judgment in favor of Loews was properly granted where Loews established its entitlement to summary judgment and the plaintiff failed to meet its burden of proving that Loews had notice of the alleged dangerous condition.  The Court stated that the plaintiff failed to prove that "Loews had actual or constructive notice of the transient obstruction — a boy sitting in the aisle — or that the lighting in the theater was inadequate."

The New York Minute

It's Friday.  Welcome week's edition of the Sui Generis New York Minute.

In today's video I discuss the State's Memorandum of Law submitted in opposition to the lawsuit challenging the lawyer advertising rules.

I also discuss this post from Flea, a physician's blog, which is in response to this post from Eric Turkewitz's New York Personal Injury Law Blog.  In Eric's post, he rationally discusses effective cross-examination techniques for attractive physician defendants in medical malpractice cases.  In Dr. Flea's post, he personally attacks Eric and suggests that physicians should refuse to treat plaintiff's medical malpractice attorneys and their families:

How does Eric Turkewitz look at himself in the mirror in the morning?

His wife and kids look like decent enough people (scroll down on link for picture). Where does Turkewitz find doctors in New York City willing to care for them?

Scott Greenfield responded to Dr. Flea's highly personal attack in this post at the Simple Justice blog.

A Little Prozac Goes A Long Way

In Oboler v City of New York 2007, NY Slip Op 02441, the New York Court of Appeals considered the issue of whether the plaintiffs had established an exception to the prior written notice law.  In Oboler, the injured plaintiff fell when he tripped over a "depressed manhole cover" and subsequently brought suit against the City of New York.

The Court noted that the City had no prior written notice of the alleged hazard as required by the City's administrative code, and thus the City could be held liable only if  one of the two well recognized exceptions to the prior written notice rule was established by the plaintiffs--that the City either created the defect in the manhole through an affirmative act of negligence that immediately resulted in the dangerous condition or that a "special use" conferred a special benefit upon the City.

The Court concluded that the plaintiffs failed to meet their burden of proving an exception to the "special use" doctrine:

Here, plaintiff presented no evidence of who last repaved this section of the roadway before the accident, when any such work may have been carried out, or the condition of the asphalt abutting the manhole cover immediately after any such resurfacing. Next, even assuming that the special use doctrine applies to a manhole situated in a City public street, plaintiffs presented no proof of any special benefit conferred on the City. Finally, we note that the expert's opinion was not inadmissible merely because nearly four years elapsed between the accident and the expert's inspection of the site. Because the expert could not supply any reliable evidence as to the elements of the exceptions to the prior written notice law, however, whether the trial court erred in precluding the expert's testimony is a question that does not affect the outcome of this case.

That's all well and good, but it seems to me the Court ignored the elephant in the room--the manhole cover's alleged depression.   It sounds like it was pretty severe.   I can't help but wonder if all of this could been avoided if the manhole cover had sought out treatment.  A little preventative Prozac could have done a lot of good in this sad, sad case.

NY Court of Appeals Strictly Interprets Court of Claims Act Requirements

Last Thursday, in Kolnacki v State of New York, 2007 NY Slip Op 02436, the New York Court of Appeals considered the issue of whether the failure of a Court of Claim's claimant to include the "total sum" of her monetary damages in her claim was a fatal jurisdictional defect.   

In this case, the claim at issue stated, in relation to the damages suffered, only that "[t]he full extent of claimant's injuries are not yet known," and that she had "incurred injuries, damages, medical and hospital expenses which are to date undetermined and will incur loss of earnings and impairment of health."

The Court reviewed the applicable provision and the purpose behind the Court of Claims Act and concluded that the failure to include the amount of damages claimed is a fatal deficiency:

Under section 8 of the Court of Claims Act, the State has waived its sovereign immunity from liability "provided the claimant complies with the limitations of this article [§§ 8-12]." The Act contains several conditions that must be met in order to assert a claim against the State. Specifically, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed" (Court of Claims Act § 11 [b] [emphasis supplied]).

"'[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed'" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999] quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Section 11 plainly requires that the claim state the total sum claimant is seeking. Notwithstanding Kolnacki's argument that "the total sum claimed" does not necessarily have to be a dollar figure, it is clear that her claim — entirely lacking any amount of monetary damages — failed to satisfy the requirements of the statute.

This decision isn't particularly surprising to me and serves to further highlight how important it is to err on the side of caution when filing claims against the State of New York.  The failure to include the required information in the Claim can result in the dismissal of an otherwise strong claim, so make sure to carefully review the relevant statutory provisions prior to commencing an action against the State.  Better safe than sorry.

Third Department Considers Liability of Police Officer Responding to a Call

In Muniz v City of Schenectady, 2007 NY Slip Op 01662, the plaintiffs were injured when their car collided with the vehicle of a police officer who was responding to a call.  The facts are described in the opinion as follows:

(The officer) had stopped at a stop sign on Mader Street and then, although construction blocked his view of Rosa Road, pulled forward into the intersection to make the turn without activating his lights or siren. When he saw plaintiffs' car approaching him in the northbound lane, Glasser stopped his vehicle in that lane, hoping that the car would either stop or proceed around him. Road conditions were wet due to a drizzling rain, however, and plaintiff Roy Muniz, the driver of the other vehicle, was unable to stop before colliding with the front driver's side of Glasser's cruiser.

At issue was whether the officer's conduct was reckless, since  VTL s. 1104(a) exempts the drivers of authorized emergency vehicles responding to an emergency from liability for certain traffic violations unless the driver's conduct was reckless. 

The Court concluded that there was an issue of fact as to whether the officer's conduct in this case rose to the level of recklessness:

In order to demonstrate reckless disregard for the safety of others, a plaintiff must show that the defendant "'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"... Upon our review of the record, we agree with Supreme Court that questions of fact exist regarding whether Glasser's conduct was reckless. 

Here, Glasser testified at his examination before trial that although he was responding to a routine, nonemergency call, he began his turn onto Rosa Road despite his limited visibility. Moreover, the accident occurred at approximately 11:00 P.M. and road conditions were wet, but he did not activate his siren or emergency lights. Rather than completing his turn into the southbound lane of Rosa Road which was free from traffic he stopped in plaintiffs' lane of travel when their vehicle was only 20 to 30 yards away.  Under these circumstances, questions of fact remain regarding whether Glasser consciously disregarded a grave risk that his actions would cause a collision and probable harm to plaintiffs  (Internal ciatations omitted).

I agree wholeheartedly with the Court's holding.  It seems to me that more often than not, appellate and trial courts have a tendency to find creative ways to decide issues of fact rather than allowing the fact finder to do so.  Accordingly, I was pleasantly surprised by this opinion. 

New York City Transit Authority Fails to Escape Liability For Passenger's Fall

At issue in Bingham v New York City Tr. Auth., 2007 NY Slip Op 01337, was whether the New York City Transit Authority (NYCTA) could be held liable for a subway passenger's injury that occurred when her pants caughts on a metal strip protruding from a stairway, causing her to fall down a flight of stairs that was not owned by the transit authority.  The NYCTA argued that it was not liable since the stairway was not utilized exclusively for access to the subway, while the plaintiff argued that since the stairway was used primarily as a means to access the subway, the NYCTA was liable.

The New York Court of Appeals agreed with the plaintiff, stating:

Courts have long recognized that the duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers...This duty has been applied to those areas owned and maintained by others if "constantly and notoriously" used by passengers as means of approach...This rule, as enunciated in Schlessinger, has been recognized not only in New York...but also in other jurisdictions...

Where, as here, a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger. Whether those means of ingress or egress are used primarily for that purpose would generally be a question of fact...

Thus, even if the responsibility to maintain the stairway resides in another entity, defendants may not avoid their responsibility "to at least provide against injury to its passengers by erecting such barricades, or giving such warning, as [would] guard against accidents"...  (Internal citations omitted).

Judge Graffeo dissented, stating that:

Beyond its incompatibility with modern trends, the majority rule is troubling because it results in a party being held liable for a condition that it did not create and lacks the power to ameliorate. Where the Transit Authority does not own, occupy or control property, it is not well-positioned to ensure that the property is free of hazardous conditions. A common carrier has no greater right than any other neighbor to enter and repair a defective condition on property owned, occupied or controlled by another, or to erect the barriers or warning signs suggested by the majority. The majority's rule will undoubtedly prove difficult to apply fairly...

(T)he duty to maintain embraced by the majority turns on an amorphous standard: whether the property was used "primarily" by subway patrons at the time of the accident. Under this standard, a duty can come into and out of existence depending on circumstances outside a common carrier's control, such as the number and type of businesses that may also attract persons who walk across the property in question.

Judge Graffeo raises a good point in regard to the difficulty that this holding presents in determining when a particular means of ingress and egress is "primarily" used to access a common carrier.  How the courts will interpret that standard remains to be seen.  While the Court specifically stated that it "generally" presented an issue of fact, I wouldn't be at all surprised to see lower courts granting summary judgment on that basis nonetheless.

Eric Turkewitz over at the New York Personal Injury Law Blog also posted about this case here.

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.