Saturday, March 9, 2024

NYS Court of Claims, Bicycling, and the "Assumption of Risk" Defense

In Alfieri v. State of New York, 2024 Slip Op. 00886 (decided on February 21, 2024), the Appellate Division, Second Department reversed a NYS Court of Claims decision to dismiss an injured claimant's case - as the appellate court held, among other things, that the Court of Claims incorrectly applied the "assumption of risk" doctrine/defense to the case.

The case arose after the claimant commenced a claim in the NYS Court of Claims (a court which entertains just lawsuits, or "claims," against the State of New York).  The claim was against the State of New York, and it requested to recover damages for personal injuries allegedly sustained when the claimant fell from his bicycle as he rode on a paved path around Rockland Lake in Rockland Lake State Park.  At a non-jury trial (as the Court of Claims does not permit jury trials - but rather only "bench-trials," or trials in which a NYS/Court of Claims judge decides matters of both law and fact involving a NYS defendant), the claimant testified that he fell when his bicycle ran into loose asphalt at the end of a crack in an asphalt patch as he attempted to maneuver to the edge of the path to go around two people walking on the path.  After the bench-trial, the Court of Claims justice found that the claim was barred by the doctrine of primary assumption of risk; and thereafter, the court issued a judgment dismissed the claim. The claimant thereafter appealed.

The Appellate Division, Second Department, revered the Court of Claims' decision - thereby restoring the case (and remitting the case back to the Court of Claims for a decision on those issues left undecided as a result of its determination), holding, among other things, the following: "Here, the Court of Claims erred in determining that the path where the claimant's accident occurred was a designated venue used specifically for bicycling.  When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface.  The claimant was not participating in an organized group event or sponsored ride.  The claimant testified at trial that he could both bike and walk the path.  That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling.  Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant's activity...."

Salvatore R. Marino, Esq.

"Serious Injury" Need Not Be "Permanent" For Auto-Accident Case

In Strong v. Sigman, et al, 2024 N.Y. Slip Op. 1028 (decided on February 28, 2024), the Appellate Division, Second Department reversed a trial court's granting of a defendants' summary judgment motion - thereby restoring the case - as the appellate court found, among other things, that triable issues of fact existed with respect to whether the plaintiff's non-permanent injury constituted a "serious injury" by way of Article 51 of the NYS Insurance Law (also known as the "No-Fault serious injury threshold law").  

The case arose due to an automobile accident between the plaintiff and the defendants.  At some point after the accident, the plaintiff filed suit against the defendants, and set forth allegations including that the defendants were negligent and caused the accident, and that the plaintiff sustained injuries/damages.  During the pre-trial process, the defendants filed a motion for summary judgment which requested dismissal of the case as, the defendants' contended, the plaintiff's injuries were not "permanent" and therefore no "serious injuries" existed as a matter of law.  A Queens County Supreme Court Justice agreed with the defendants' position, and granted the motion, and the plaintiff thereby appealed.

The Appellate Division, Second Department, reversed - thereby restoring the case - and the decision included the following: "In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical and lumbar regions of her spine under the significant limitation of use category of Insurance Law 5102(d) [citing Perl v. Meher, 18 NY3d 208].  Contrary to the defendants' contention, Insurance Law 5102(d) does not expressly set forth any temporal requirement for the significant limitation of use category and a 'significant limitation' need not be permanent in order to constitute a serious injury [citing Vasquez v. Almanzar, 107 AD3d 538; Estrella v. GEICO Ins. Co., 102 AD3d 730]."  

Salvatore R. Marino, Esq.

Friday, December 29, 2023

Questions of Fact Exist Regarding Ice Formation Prior to Snow Storm

In Townsend v. City of New York, et al (Index No. 711239/17, Queens County), the Appellate Division, Second Department recently affirmed a lower court's denial of a defendant's motion for summary judgment in a slip-and-fall due to ice case.  The case arose in January 2017, when the plaintiff allegedly slipped and fell on a walkway at the Queensbridge Houses South, in Long Island City.  At his 50-H hearings, the plaintiff testified that he fell due to ice; and at his deposition during the discovery process, he testified that the hazard was "dirty, crunchy" snow.  It is undisputed that at the time the plaintiff fell, it was snowing, with at least some snow accumulated on the ground.  At some point during the litigation, the defense filed a motion for summary judgment, seeking to dismiss the case by way of the "storm in progress" doctrine (which, if accepted by the Court, could result in a case dismissal).  The motion was denied, and the defense appealed.

The Appellate Division, Second Department notes applicable case law, including a case recently handled by Marino & Marino, P.C. titled Maharaj v. Kreidenweis (in which this firm, in March 2023, successfully defeated on appeal a motion for summary judgment from a defendant property owner in a slip-and-fall/ice case), as the Court stated the following: "As the proponent...of the motion for summary judgment, the defendant...had the burden of establishing, prima facia, that [it] neither created the icy condition nor had actual or constructive notice of its existence for a sufficient length of time to discovery and remedy it [citing Maharaj v. Kreidenweis, 214 AD3d 717, 719]."

The Court then goes on to hold that the lower court properly denied the defendants' motion - as even though the defense properly satisfies their summary judgment burden, the plaintiff, in opposition, raised triable issues of fact.  Particularly, the Court held: "An affidavit of the plaintiff's expert, in combination with the plaintiff's testimony and the sworn statement of the sole witness to the accident, was sufficient to raise a triable issue of fact as to whether the plaintiff slipped on ice, rather than snow, and whether such ice formed prior to the storm such that the defendant had a duty to make the path safe prior to the alleged time of the plaintiff's accident."

Salvatore R. Marino, Esq.

School District/Negligent Supervision Case Dismissed

In C.P.G., Etc., et al v. Uniondale School District (Index No. 612957/19, Nassau County), an infant/minor plaintiff, by way of his father, brought a lawsuit against a school district alleging, among other things, that the plaintiff sustained injuries due to negligent supervision by way of the school's employees.  Particularly, the action alleged that the infant plaintiff, who was an eighth grade student at a school located within the defendant Uniondale School District, was injured while playing a "pickup" game of soccer on a field at Turtle Hook Middle School during a school-sponsored event; it is further alleged that the infant plaintiff was injured due to dangerous conditions on the field - including, it is claimed, pebbles and wet grass - and negligent supervision by the school district's employees.  At some point during the litigation, the defendant school district moved for summary judgment (seeking dismissal of the case), and the trial court Judge denied the motion.

On appeal, however, the Appellate Division, Second Department reversed the lower court's decision - which, in effect, dismissed the plaintiff's case.  The basis of the appellate decision is the application of the doctrine of "assumption of risk," as the Court notes, "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation...[and] Participants are not deemed to have assumed the risk of reckless or intentional conduct, or concealed or unreasonably increased risks."  The Court then holds that in the instant case, "...merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision"; and "To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields."  

The Court further holds that the plaintiff fails to raise a triable issue of fact (which, in turn, allows the Court to grant the defendants' motion) - however, no explanation is provided by the Court as to why this is (such as what arguments and/or evidence was submitted by the plaintiff in opposition to the motion).  Absent from the appellate decision as well is a discussion with regards to the actual supervision and monitoring, if any, by the school district teachers/employees in relation to the infant plaintiff (which is arguably relevant, to an extent; as, for example, if the employees are not watching the infant plaintiff at all, and if the employees knew or should have known that an injury is likely to occur given the underlying facts and circumstances, then perhaps issues of fact could exist).

Salvatore R. Marino, Esq.

Monday, May 22, 2023

NY Court of Appeals/Grady Decision and the "Assumption of Risk" Doctrine

The doctrine of “assumption of risk” has been in place in New York since the enactment of C.P.L.R. 1411 in 1975.  It is applicable only in very particular circumstances where a participant takes part in a sport and/or recreational activity, and the danger inherent in the activity is obvious and necessary.  The participant in such an activity must be aware of the risk, appreciate the nature of the risk, and voluntarily assume the risk.  Exceptions to these are if the risks are hidden or unreasonably enhanced.


In the recent New York Court of Appeals decision Grady v. Chenango Valley Central School District et.al. (2023 WL 3102723, decided on April 27, 2023), two cases within the context of high school athletics and concerning the doctrine of assumption of risk were reviewed.  In Secky, the plaintiff, while playing basketball, was injured during a drill in which teammates competed to retrieve a rebound ball.  The plaintiff sustained a serious injury to his shoulder when another player collided with him and caused him to fall into the bleachers.  The Court affirmed defendants’ motion for summary judgment (thereby dismissing the case) because it held the plaintiff’s injury was inherent in the sport of basketball and therefore, he assumed the risk of injury.  However, in Grady, the plaintiff sustained vision loss in one of his eyes while participating in a complex baseball drill involving multiple balls being thrown and protective screens set up on the field in various locations.  In this case, the Court reversed the lower courts’ granting of defendants’ motion for summary judgment – thereby restoring the case – because it held the use of screens and the complexity of the practice/drill created a unique and dangerous condition that rose above the usual inherent dangers in this particular sport and within the context of a high-school athletics program (and as a result, the Court held that one does not assume the risk of same).


Of interest in this decision is the dissent by Justice Rivera, who concurs in Grady but dissents in Secky (a dissent is when a Judge disagrees with the majority decision of the Court and states their own opinion after the decision).  Justice Rivera discusses the legislative intent of C.P.L.R. 1411, which “expressly abolished contributory negligence and assumption of risk as absolute defenses,”  and that the intent of the legislation was to allow plaintiffs to recover in part for injuries they are partially liable for.    Justice Rivera further analyzes the broad interpretation of the definition of “recreational activity,” as well as discusses in detail numerous publications on the abuse and retainment of the assumption of risk doctrine in the court system.  Justice Rivera suggests that assumption of risk should be abolished, and such an abolition will not cause the dire consequences to sporting events and activities suggested in prior case analysis, and a comparative fault analysis is sufficient in these cases. Justice Rivera further states that the Court should reverse both Grady and Secky and remit for trial with juries instructed on comparative fault.


Giulia R. Marino, Esq.

Sunday, November 13, 2022

MVAIC Petition Denied as Petitioner Did Not Demonstrate Reasonable Efforts to Ascertain the Identity of Owner/Operator of Vehicle in Hit-and-Run Accident

In the Matter of Cymba Melville v. Motor Vehicle Accident Indemnification Corporation (decided on or around November 14 2022, Index No. 705389/19), the Appellate Division, Second Department affirmed a Queens County Supreme Court Order which denied a petition, in a hit-and-run accident, which sought permission to file a lawsuit against the Motor Vehicle Accident Indemnification Corporation (“MVAIC”).  

 

The case arose when the petitioner allegedly was injured when a vehicle in which she was a passenger in was struck by another vehicle.  As she initially claimed to not know the identity of the owner and/or operator of the other vehicle – and as she presumably did not know whether that vehicle was insured, as the vehicle she was in was likely uninsured, and as she likely did not have any automobile insurance of her own (including by way of her household) – then she filed a Notice of Intention to Make a Claim with MVAIC (as MVAIC, a non-profit organization created by NYS legislation, is often a last resort and option for injured persons in automobile accidents when there is no other available insurance).

 

The Supreme Court, however, denied the petition, and the Appellate Division affirmed – with a holding that included the following: “The Supreme Court did not err in denying the petition pursuant to Insurance Law Section 5218 for permission to commence an action against MVAIC to recover damages for personal injuries sustained and caused by the negligence of an unknown party.  MVAIC was created in 1958 to compensate innocent victims of hit-and-run motor vehicle accidents…Here, although there is no dispute that the petitioner was a qualified person pursuant to Insurance Law Section 5202(b), the petitioner failed to sustain her burden of demonstrating that the accident was one in which the identity of the owner and operator of the vehicle was unknown or not readily ascertainable through reasonable efforts.”  The Court further noted – and what appears to be a significant and decisive factor in the Court’s reasoning – is, “While testifying at an examination under oath, the petitioner identified the driver of the vehicle which struck her vehicle as an individual with whom she was acquainted.”  

 

Salvatore R. Marino, Esq.

High School Football Player Did Not "Assume the Risk" of Weightlifting Injury

Annitto, etc. v. Smithtown Central School District (decided on or around November 4, 2022, Index No. 611093/17) highlights the “assumption of risk” doctrine/defense in the context of high school athletic programs.  In the case, the plaintiff, on a high school football team, sustained serious injuries (including one of his fingers being crushed) when he was engaging in weight training exercises at the high school.  The incident happened during an off-season weight training test overseen by the school’s football coach.  Thereafter, the plaintiff’s mother commenced a lawsuit on his behalf against the school and in the Suffolk County Supreme Court, including, among other things, alleging negligent supervision.  At some point during the pre-trial process, the school moved to dismiss the case by way of a summary judgment motion – including asserting an argument that the plaintiff “assumed the risk” – and the Supreme Court granted the motion.

 

On appeal, however, the Appellate Division, Second Department reversed (thereby restoring the case), and with its decision including the following: “While the weight test was related to the infant plaintiff’s conditioning, and was occasioned by his membership on the school’s football team, that does not mean that the risk of being injured while lifting a heavy bar is inherent in the sport of football.  We cannot conclude that the fact that a person is getting in shape to play a sport means that the person assumes all of the risks associated with getting in shape, such that a school district would have no duty to its students to provide safe conditions for lifting weights and proper supervision of that activity.”

 

Salvatore R. Marino, Esq.