Sui Generis--a New York law blog

Second Department Considers Liability of NYC for Failure to Maintain Traffic Light

In Minemar v Khramova, 2006 NY Slip Op 03857, the plaintiff was stopped at a light behind a number of other cars.  The traffic light was apparently malfunctioning, and thus never changed from red to green. Each car waited approximately 30-60 seconds before entering the intersection.  The plaintiff did the same, looked down the intersecting one-way street before proceeding, and then entered the intersection, at which point he was struck by another vehicle driven by one of the defendants.

The plaintiff then filed a claim against, among others, the City of New York, and alleged that the City had negligently maintained the traffic light, thus proximately causing the accident.

I was somewhat surprised by the Court's holding:

In this case, where the plaintiff driver was fully aware of the malfunctioning traffic light and the consequent need to exercise caution in proceeding through the intersection, any negligence on the part of the City in maintaining the traffic light was not the proximate cause of the accident. Accordingly, the complaint insofar as asserted against the City should have been dismissed (see Bisceglia v International Bus. Machs., 287 AD2d 674, 676).

I haven't researched this issue, but it would seem to me that a jury could find that the accident would not have occurred but for the City's negligent maintenance of the traffic light, and thus liability should be apportioned between the City and any other negligent parties. 

I realize that the plaintiff could very well bear some fault for the accident, but the City should bear some liability as well.  That the plaintiff was aware of the malfunction should not, in my mind, absolve the City of all liability.  At the very least, it should be an issue of fact for the jury to decide.

Was Illegally Parked Bus a Proximate Cause of the Accident?

Gerrity v. Muthana, 2006 NY Slip Op 03180, is an interesting Fourth Department case in which the Court considered the issue of whether the summary judgment motion of one of the defendants, the owner of an illegally parked bus, was properly granted by the trial court.

In this case, the plaintiff was injured when a car driven by one of the defendants ran a red light and struck the bus that the plaintiff was driving, thus causing the bus to collide with yet another bus that had been illegally parked in a "No Standing" area.  It was undisputed the plaintiff's injuries were cause by the collision with the second bus, rather than the initial collision with the car that ran the red light.

The Fourth Department upheld the trial court's ruling and held that the lower court had properly granted summary judgment in favor of the owner of the illegally parked bus: 

Defendant met its burden on the motion by establishing as a matter of law that the sole proximate cause of the accident was Muthana's failure to stop at the red light, and plaintiffs failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The location of defendant's bus " merely furnished the condition or occasion for the occurrence of the event' and was not one of its causes" (Mendrykowski v New York Tel. Co., 2 AD3d 1410, 1410).

I'm not entirely convinced by the majority's logic and find the dissent's argument to be more compelling.  The dissent concluded that the incident was a "chain reaction" accident that consisted of two separate collisions and stated that:

"It has been held in a variety of factual circumstances that owners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact of the issues of foreseeability and proximate cause unique to the particular case" (O'Connor v Pecoraro, 141 AD2d 443, 445, citing, inter alia, Ferrer, 55 NY2d 285). Where, as here, the connection between the parking violations and the happening of the accident is logical and immediate enough to present an issue of fact, the issue is one for the trier of fact and is not properly resolved on a motion for summary judgment (see id.; cf. Dormena v Wallace, 282 AD2d 425, 427).

Given that there is a viable argument that the plaintiff's injuries would not have occurred but for the illegally parked bus, I think that there is an issue of fact.  A reasonable fact-finder could determine that the plaintiff's injuries were foreseeable and proximately caused by the illegally parked bus. 

Had the bus been parked legally, it would have been a different story.  But, that's not the case here.  It's hard for me to stomach the fact that the plaintiff appears to now have no recourse for his injuries.

Two Interesting First Department Cases

I came across two interesting, albeit short, First Department cases that were handed down yesterday.

In People v. Chiddick, 2006 NY Slip Op 03806, the Court held that a bite wound was sufficient to support an assault in the second degree conviction.  The Court stated that:

The element of physical injury was established by evidence supporting the conclusion that the victim's bite wound caused him an impairment of physical condition and substantial pain over a period of nearly a week (see People v Guidice, 83 NY2d 630, 636 [1994]), an injury far outside the realm of "petty slaps, shoves, kicks, and the like . . ." (Matter of Philip A., 49 NY2d 198, 200 [1980]).

It's unfortunate that the Court didn't provide the underlying facts regarding how the bite affected the victim.  Nevertheless, I was a bit surprised by the Court's conclusion.  That must have been a hell of a bite, or else it must have been in a strange location.

Another case that surprised me a bit was Pappalardi v. Jones, 2006 NY Slip Op 03818.  In this short decision, the Court held that:

It cannot be said that defendant driver's conduct was the sole proximate cause of the accident, as a matter of law, merely because his approach into the intersection was regulated by a stop sign whereas there were no traffic control devices regulating plaintiff's approach (Hernandez v Bestway Beer & Soda Distrib., 301 AD2d 381 [2003]). The conflicting deposition testimony raises issues of fact, including whether defendant stopped for a stop sign, whether defendant driver's vehicle was already in the intersection when plaintiff approached and whether plaintiff's view of defendant's vehicle was obstructed.

I've run into this issue on a number of occasions in cases that I've handled.  It seems to me that unless the driver that had no traffic control device was driving unusually recklessly, that there should be no issue of fact and it's simply an issue of law to be determined by the Court. Although all drivers have an obligation to see what should have been seen, the driver who is actually faced with a traffic control device, in this case, a stop sign, is obligated to ensure that the intersection is clear prior to  proceeding into it.  Absent extremely unusual circumstances,the failure to do so, in my opinion, constitutes negligence as a matter of law.

I don't think that any of the factors identified by the Court in the last sentence quoted above would have any effect on the issue of whether the defendant was solely negligent in this situation.

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?

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.

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.

NY Court of Appeals Considers Doctrine of Res Ipsa Loquitur

Ever since I worked on a case in which our claim was based on the doctrine of Res Ipsa Loquitur, I've had an unusual interest in this legal theory.  As a result, I was excited to read the recent New York Court of Appeal's decision in Morejon v. Rais Constr. Co., 2006 NY Slip Op 03619. As to the fact that I found this decision to be exciting, I'm not entirely sure what that says about the current state of affairs in my life, but surely that's another topic, for another day, for an entirely different blog.

In any event, in Morejon, the Court considered the issue of whether summary judgment in favor of the plaintiff is properly granted where the plaintiff's case relies on the theory of res ipsa. 

This decision offers a great summary of New York law regarding this legal theory.  The Court first addressed the historical development of the legal theory.  The Court quoted the following from a case from 1874:

"Buildings properly constructed do not fall without adequate cause," we said.     "If there be no tempest prevailing or no external violence of any kind, the fair presumption is, that the fall occurred through adequate causes, such as the ruinous condition of the building, which could scarcely have escaped the observation of the owner. The mind is thus led to a presumption of negligence on his part, which may, of course, be rebutted. In the absence of explanatory evidence, negligence may be presumed."

And, the Court offered this definition of res ipsa:

(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

The Court then summarized its pivotal decision from 1941, George Foltis, Inc. v. City of New York 287 NY 108 (1941):

The Court held that res ipsa loquitur does not create a presumption of negligence against the defendant. Rather, the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent. The Court went on to state that res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantial evidence is unrefuted.

The Court concluded that while summary judgment may be granted in favor of a plaintiff, it should be a rare event.  The Court offered the following guidance to lower courts:

Res ipsa loquitur is a phrase that, perhaps because it is in Latin, has taken on its own mystique, although it is nothing more than a brand of circumstantial evidence [FN14]. Viewed in that light, the summary judgment (or directed verdict) issue may also be properly approached by simply evaluating the circumstantial evidence. If that evidence presents a question of fact as to the defendant's liability under the Kambat/Corcoran test for res ipsa loquitur, the case should go to trial. If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law. Alternatively, as we have said, the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination.

This decision is well worth a quick read.  Especially if, like myself, you harbor a strange fascination for the doctrine.

It's Not a Bird Or a Plane--But It Does Present an Issue of Fact

Apparently, my rationale in this post made sense after all.  I hereby revoke my humble apology.

I've been officially vindicated by the Fourth Department's recent decision in Sanly v. Nowak, 2006 NY Slip Op 03221, which was decided last Friday.  In this case, the plaintiff sought damages for injuries sustained when the defendant's vehicle skidded out of control and crossed into the oncoming lane of traffic in which the plaintiff was traveling.  The Court concluded that although the emergency doctrine was inapplicable, there was a triable issue of fact.  The Court stated that

(The defendant's conduct) is only prima facie evidence of negligence ...; it does not mandate a finding of negligence.  Such evidence[,] together with the explanation given by [defendant], presents factual questions for determination by the jury...(T)here is a triable issue of fact whether defendant's admitted violation of Vehicle and Traffic Law § 1120 (a) may be excused on the ground that defendant's conduct was reasonable under the circumstances.  (Internal citations and quotations omitted.)

So, it would seem that even when the emergency doctrine is inapplicable, it is still within the province of the jury to determine whether a defendant's conduct in crossing into oncoming traffic is reasonable under the circumstances.

I'm not sure how this holding squares with the Court's holding in Kizis v. Nehring, 2006 NY Slip Op 01952, the case that I discussed in the post mentioned above.  The only difference that I can see is that Sanly addressed a pre-trial motion while Kizis addressed a post-trial verdict. 

Nevertheless, issues of fact are for the jury to determine, and I fail to see why the specific testimony elicited in Kizis was so clear cut so as to remove that determination from the jury's consideration.

Any thoughts?  I'm truly baffled...

It's a Bird, It's a Plane...

In Kizis v. Nehring, 2006 NY Slip Op 01952, the Fourth Department considered whether the emergency doctrine has been correctly applied by the trial court.  In this case, the infant plaintiff was injured when the car driven by her mother was struck head on by the defendants' vehicle , which had crossed a double yellow line and entered into oncoming traffic.  At trial, the defendant who had been driving testified that she had crossed into oncoming traffic in order to avoid an animal that she thought was a large brown bird that was either running or flying toward her car.

The Fourth Department concluded that the trial court erred by charging the emergency doctrine since:

(I)n view of the vagueness and equivocation in the explanations of Nehring concerning the circumstances that allegedly caused her to cross into the opposing lane of travel, we conclude that there is no reasonable view of the evidence that Nehring was confronted by a qualifying emergency, i.e., a sudden and unforeseeable occurrence that would have made it reasonable and prudent for Nehring to react by swerving into the opposing lane of travel and colliding head-on with an oncoming vehicle.  (Internal citations and quotations omitted.)

The Court also concluded that the verdict in favor of the defendants should have been set aside:

Indeed, [a] driver confronted with an emergency situation may still be found to be at fault for the resulting accident where his or her reaction is found to be unreasonable or where the prior tortious conduct of the driver contributed to bringing about the emergency...We conclude that Nehring's self-described emergency, i.e., the presence of what appeared to be a bird "flying or running" toward Nehring's vehicle, would not justify or excuse such an unreasonable and imprudent reaction on the part of Nehring. (Internal citations and quotations omitted.)

There was a strong dissent by Justice's Martoche and Pine, who contended that the emergency doctrine was properly charged and that the jury's verdict was not against the weight of the evidence.

I agree with the majority in regard to the inapplicability of the emergency doctrine, but am inclined to agree with the dissent regarding the issue of setting aside the jury's verdict.  The jurors were, in my opinion, in the best position to assess the facts and the credibility of the witnesses.

UPDATED:    Slickdpdx's comment regarding this post quite politely points out that my logic at the end of this post makes no sense.  And, he's quite right.  If the emergency doctrine is out, then any verdict in favor of the defense would most definitely be against the weight of the evidence.  I humbly apologize for posting without thinking!

Apparently, I'm able to leap over logical flaws in a single bound (hint:  if you aren't following the reference--check the title of this post).

Did a Crack in the Road Cause the Accident?

In Johnson v. State of New York, 2006 NY Slip Op 01924, the Fourth Department considered whether the Court of Claims properly determined that the State had failed to adequately maintain the roadway and thus was liable for the automobile accident that caused the claimant's death.

The claimant alleged that as a result of the State's negligent maintenance of the road, there was a crack in the road and faded line markings, and that these defects caused the other driver to veer into the decedent's lane.  However, the driver of that vehicle was unable to recall why he veered into the decedent's lane.

The Court set forth the applicable law as follows:

While the State must maintain its highways in a reasonably safe condition ..., the State is not an insurer of the safety of its roads and no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is a proximate cause of the accident. When an automobile swerves and leaves [its lane of travel] for no definitely assignable reason, it is altogether possible that the accident was due to either of several causes, [including] the failure of the steering gear or a lapse on the part of the driver .... In ... such cases the balance of probabilities between causes which entail liability and others which do not is equal enough so that an inference of fact which entails liability is the result of mere speculation.  In final result, it is clear that, if it is just as likely that the accident might have occurred from causes other than a defendant's negligence, the inference that [the defendant's] negligence was [a] proximate cause of the accident may not be drawn. (Internal citations and quotations omitted.)

The Court then concluded that in this case the evidence was legally insufficient to establish that the alleged negligence was a proximate cause of the accident.