Assumption of Risk Doctrine

             A recent Appellate Division, Second Department court decision highlights the "assumption of risk" doctrine as it applies in negligence cases.  In Reidy v. Raman, 2011 NY Slip Op 5251 (2d Dept.), the plaintiff injured her ankle when she slid down an inflatable slide owned by the defendant One Stop Party Rental, Inc., and set up at an event sponsored by the defendant Lindenhurst Sport Club, Inc.  The plaintiff ultimately lost her case because of the application of the “assumption of risk” doctrine.

            The Court stated the following: “a plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law.  A voluntary participant in a recreational activity consents to those commonly-appreciated risks which are inherent in and arise out of the nature of such activity generally, and which flow from the participation.  Athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks…these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.”  Additionally, the Court held that the affidavit the plaintiff’s expert provided (in an attempt to counter the assumption of risk defense) was insufficient because he was not qualified to render an opinion as to the condition of the inflatable slide, and because his conclusions were speculative.

Salvatore R. Marino, Esq.

Theory of Law Raised Too Late

            In Hubbard v. City of New York, 924 N.Y.S.2d 533 (2d Dept. 2011), the plaintiff commenced a lawsuit against the City of New York as a result of an alleged trip and fall accident over a downed lamppost that was lying in the gutter of a street and which was not visible to her due to significant snowfall on the ground.  In her pleadings, she alleged negligence on the part of the City in permitting the site where the accident occurred to remain in a dangerous condition.  Particularly, she alleged that the City knew or should have known of such dangerous condition, and therefore is responsible for her injuries.  The case went to trial, where a jury awarded her a favorable verdict.  However, the City appealed, and the Appellate Division reversed the jury award.

            At trial, the plaintiff argued that the City was liable under a theory of an affirmative act of negligence (also known as a theory of “creation”).  Specifically, she argued that a City plow truck knocked over the subject lamppost, and afterward City workers moved the lamppost into the gutter of the street, where the plaintiff ultimately tripped over it.  The Court, on appeal, held that the trial court erred in allowing the plaintiff to proceed under this theory because it was never raised at any pre-trial stage.  According to the Court: “the theory was not contained in either the plaintiff’s pleadings or her bill of particulars.  In fact, in its demand for a bill of particulars, the City explicitly asked the plaintiff to state if actual or constructive notice were claimed, and additionally, whether she alleged that the City created the condition.  In her bill of particulars in response, she only stated that actual and constructive notice were claimed.  She did not claim that the City created the condition.  As this was a new theory not previously disclosed [before trial], the City had no opportunity to prepare for rebuttal.”

Salvatore R. Marino, Esq.

Lost Will Presumed Destroyed by Testator

A recent Appellate Division, Second Department court decision highlights an important aspect of the law of wills in New York.  In Matter of Winters, 923 N.Y.S.2d 730 (2d Dept. 2011), a decedent validly executed a will, but when he died his will could not be found.  Because his will could not be found, his son filed a petition in the Surrogate’s Court to obtain letters of administration for the estate of the decedent.  The decedent’s attorney, however, filed an answer and objections to the petition in which he alleged that the original will had be fraudulently destroyed during the decedent’s lifetime.  This attorney then cross-petitioned to admit a copy of the will to probate, but the Surrogate’s Court dismissed his petition.  The Appellate Division now affirms the lower court’s decision.

            According to the Court: “if a will, shown once to have existed and to have been in the testator’s possession, cannot be found after the testator’s death, the legal presumption is that the testator destroyed the will with the intention of revoking it.  This legal presumption may be overcome, and the lost will may be admitted to probate, if the party seeking probate establishes that the will was not revoked during the testator’s lifetime.”  The Court ultimately held that the decedent’s attorney offered no proof to support his contention that the will was fraudulently destroyed during the decedent’s lifetime, and therefore his petition should be dismissed.  According to the Court, the decedent’s attorney was merely speculating as to whether the will was fraudulently destroyed, and speculation alone is insufficient to overcome the applicable presumption.

Salvatore R. Marino, Esq.

Employee Fails to Show City at Fault

In Loschiavo v. City of New York, 923 N.Y.S.2d 676 (2d Dept. 2011), the plaintiff, an employee of the New York City Department of Sanitation, was allegedly injured when a metal bar he was recycling ejected from one of the truck’s hoppers, struck him in the head, and knocked him into the path of an oncoming bus.  The plaintiff thereafter sued the City alleging that it was negligent in failing to provide a safe recycling truck despite a notice that this model of truck sometimes ejected material from the hoppers during recycling operations.

            Ultimately the Court held for the City because it felt that the City’s decision to use that particular truck was a discretionary governmental act involving the exercise of reasoned judgment.  According to the Court: “the City submitted evidence showing that the Department [of Sanitation] made the decision to use this particular dual hopper truck after considering hoppers from several manufacturer’s, conducting field tests, and determining that the hopper was reasonably safe.  In examining available hoppers, the Department found that no hopper design completely eliminated the risk that material would sometimes eject during recycling collection operations, except for one design that posed alternate, greater safety risks.”  Because the plaintiff didn’t provide evidence in opposition to the City’s evidence, the Court dismissed the plaintiff’s complaint.

Salvatore R. Marino, Esq.

Vehicle Rear-End Collision Law

In Kastritsios v Marcello, 2011 NY Slip Op 04425 (2d Dept.), the plaintiff while driving her car was allegedly hit in the rear by the defendant driver.  The plaintiff made a motion for summary judgment, arguing that no triable issues of fact exist in regards to the defendant’s liability.  In making the motion the plaintiff provided an affidavit that states that she was hit in the rear by the defendant, and in opposition to the motion the defendant provided an affidavit which stated that plaintiff’s vehicle made a sudden stop.  The trial court denied the plaintiff’s motion, but the Appellate Division reversed and found for the plaintiff. 

The Court stated the following: “a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision…[in this case], the claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the following vehicle.  Accordingly, the Supreme Court erred in denying the plaintiff’s motion for summary judgment on the issue of liability.”

Salvatore R. Marino, Esq.

The Emergency Doctrine

A recent Appellate Division, Second Department court decision highlights the "emergency doctrine" as it applies in negligence cases.  In Brannan v. Korn, 923 N.Y.S.2d 345 (2d Dept. 2011), the plaintiff, while attempting to walk across a road in Nassau County, was struck by a hit and run driver and, as a result of the impact, was propelled onto a second vehicle operated by the defendant.  The Appellate Division, Second Department held that the plaintiff’s case against the defendant is dismissed because the defendant was faced with a valid emergency and therefore the application of the “emergency doctrine” bars the lawsuit.

The Court stated the following: “under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.”

Salvatore R. Marino, Esq.

No "Serious Injury" in Auto Accident Case

A recent Appellate Division, Second Department court decision highlights an aspect of the law in New York in regards to automobile accident cases and “soft-tissue” injuries (a “soft tissue” injury is one that is not a fracture but is rather damage to the muscles, ligaments or tendons).  

The law in New York is that if a person is injured in a car accident then he or she can seek No-Fault insurance benefits up to $50,000 for economic losses pertaining to the accident (such as medical treatment expenses and lost earnings), regardless of who is at fault in causing the accident.  One goes about seeking such benefits by timely submitting a No-Fault application.  A person is able to sue the other driver directly to seek more compensation, but only if the economic losses exceeds $50,000, or if a “serious injury” exists.  A “serious injury” is defined by law as it includes death, fracture, and a permanent limitation of or permanent loss of use of a body part or function, as well as a significant limitation of use of a body function or system.  “Serious injury” also includes a non-permanent loss of use of a body member or organ that substantially impairs a person from engaging in customary everyday activities for 90 out of 180 days after the accident.  This “non-permanent use” category is also called a “soft-tissue” injury, and it is the most difficult for plaintiffs to prove. 

In Lewars v. Transit Facility Management Corp., 923 N.Y.S.2d 701 (2d Dept. 2011), the plaintiff lost her case (when defendant’s summary judgment motion was granted) when the Court held that she not sustain a “serious injury” because she missed only one week of work as a result of the accident (therefore, the “90 out of 180 day” category was not satisfied).  Also, the Court held the following in regards to the plaintiff’s doctor’s findings: “the affirmation and annexed submissions of [the plaintiff’s doctor] did not make any findings that were sufficiently contemporaneous with the subject accident as to the existence of significant limitations in either the plaintiff’s cervical or lumbar range of motion.  Indeed, while [the plaintiff’s doctor] examined the injured plaintiff the day after the accident, he failed to quantify any lumbar or cervical spine range of motion as of that date.  Rather, he asserted merely that the injured plaintiff had “decreased” range of motion.  Even with respect to this unquantified finding, he did not set forth the objective testing he performed.  The earliest quantified findings concerning lumbar or cervical range of motion provided by the plaintiffs was from an examination performed six months after the subject accident.  These findings were not sufficiently contemporaneous with the subject accident and did not overcome the deficiencies in [the plaintiff doctor’s] earlier examination.”

Salvatore R. Marino, Esq.

Prior Notice Law Not Applicable For Defense

In Giarraffa v. Town of Babylon, 923 N.Y.S.2d 697 (2d Dept. 2011), the plaintiff was allegedly injured when he stepped into what he described as a dirt-covered sinkhole immediately adjacent to the bulkhead for a slip where his boat was moored in Tanner Park, in the Town of Babylon.  The plaintiff sued the Town of Babylon for negligence. 

The defendant Town argued that there was no prior written notice of the defect pursuant to Town Code Section 158-2 and therefore the action must fail.  The Court disagreed with the Town on this point, stating the following: “the Town failed to demonstrate its prima facia entitlement to judgment as a matter of law because it did not show that the area where the plaintiff fell was within the scope of the applicable prior written notice provisions.  Contrary to the Town’s contention, the dirt-covered area providing access to boats moored at the slips within Tanner Park is neither a boardwalk nor other functional equivalent of a sidewalk.”  The Court, however, noted that if Section 158-2 was applicable then the plaintiff would lose because the Town Supervision received such notice rather than the Town Clerk or the Commissioner of the Department of Public Works, who are the only parties would could validly receive such notice under Section 158-2.

Salvatore R. Marino, Esq.