April 2017 Nash Connors, P.C. Newsletter
As you put the finishing touches on your income tax return and stuffing those Easter baskets, the attorneys at Nash Connors, P.C. hope you save a little time to enjoy the April newsletter!  In this month's issue we cover the new changes to New York's Workers' Compensation system, the introduction of ride-sharing to Upstate New York, and highlight five Labor Law cases (including one from the Court of Appeals) and other cases from around the state.
Workers' Comp Reform

On April 9, 2017, the New York State Senate approved the fiscal budget for the 2017-2018 year, and with it, Workers' Compensation reform.  The new budget requires a speedy hearing process for applicants who have been denied benefits.  Further, it broadens the scope of people who have access to Workers' Compensation benefits, which will now include first responders who have witnessed traumatic events and drivers for ride-sharing companies, including Uber and Lyft. 

Additionally, the budget creates an advisory committee which will recommend new guidelines to use when evaluating whether an individual with a permanent limb injury is able to work.  This committee was advocated for by The Business Council of New York, who has argued that improved technology has increased the number of jobs available to individuals with such injuries and that the old guidelines were too dated to accurately evaluate these situations. 

Finally, the budget will require updating the impairment for loss of use awards in order to better reflect improved medical outcomes that have come with advances in medical technology.  This is expected to save New York State's employers significant amounts of money and likely drive down the size of Workers' Compensation liens in third-party claims.

Ride Sharing  in the Fast Lane 

Speaking of ride-sharing companies such as Uber and Lyft, the budget that our Governor signed allows such companies to operate in Upstate New York.  Previously, companies like these only could do business in New York City.  This will have an obvious impact on anyone handling automobile claims in New York.  Get ready!
Case Law Update

Plaintiff raised a question of fact to defeat defendant's "serious injury" threshold motion when her treating orthopedic surgeon opined that plaintiff suffered more than a 20% reduction in cervical range of motion ( Grier v Hallam, et al.).

GENTLEMEN, START YOUR ENGINES:  Defendant was not entitled to argue the doctrine of primary assumption of the risk when plaintiff (a spectator at a race track) was injured when a race vehicle backed into him, because such conduct is  inherent to the sport.  The Court also ruled that the waiver plaintiff signed was not enforceable under General Obligations Law 5-326, because plaintiff essentially was a spectator at a sporting event.  Lastly, the Appellate Division reduced the $300,000 award for loss of household services to $100,000 because the award was against the weight of the evidence at trial ( Knight v Holland, et al.).

The Fourth Department affirmed in part the denial of summary judgment to a gas station despite the fact that plaintiff did not know what caused her to fall.  Plaintiff testified "I just fell . . . there was no precursor.  I don't remember slipping, I don't remember sliding."  The Court said that the cause of her fall could be "reasonably inferred" from the circumstances and weather conditions ( Smith v United Refining Co. of PA, et al.).

  In cases where plaintiff cannot identify what cased him or her to fall, it is important to identify a non-negligent excuse (e.g., walking problems, vision issues, etc.) when arguing that plaintiff must resort to speculation to establish a negligence case.

DON'T FORGET TO DE-ICE!  Plaintiff was injured when he slipped and fell on ice located on the sidewalk in front of defendant's store during an admitted storm in progress. However, the Appellate Division denied defendant's motion for summary judgment holding that defendant's failure to apply a de-icer to the sidewalk the day earlier may have contributed or exacerbated the formation of ice ( Baumann v Dawn Liquors, Inc.). 

DANGEROUS RUG:  A restaurant owner was entitled to summary judgment when plaintiff slipped and fell on one of its rugs.  Defendant established that the rug was not a dangerous condition because video evidence showed that it was flat and even to the floor ( Langgood v Carrols, LLC, et al.).

YOU KNEW ABOUT IT, SO DON'T COMPLAIN: The Appellate Division permitted plaintiff to serve a late Notice of Claim despite not providing a reasonable excuse for failing to serve it within the 90-day deadline when the municipal defendant had actual notice of the facts giving rise to the claim ( Brege v Town of Tonawanda).

LABOR LAW:  The Second Department reversed an order granting plaintiff summary judgment on a Labor Law 240(1) case because plaintiff was required to prove that at the time an object fell on him, the object was either being hoisted or secured, or required securing. There were varying descriptions of the "beam" in the deposition testimony, and plaintiff failed to show, even with the use of an expert, that the beam in question fell due to the absence or inadequacy of an enumerated safety device ( Romero v 2200 N. Steel, LLC).

LABOR LAW, PT II:  A plaintiff injured while removing a downed tree from a mound of old tennis court clay and construction debris was found to have no viable claim under Labor Law 240(1) and 241(6). Tree cutting and removal are not covered activities and the mound of clay and debris was not a "structure" under the Labor Law. In addition, defendants successfully established that tree cutting and removal is routine maintenance outside of a construction or renovation context ( Derosas v Rosmarins Land Holdings, LLC).

LABOR LAW, PT III:  During a rain storm, plaintiff was on his way down a temporary exterior metal staircase when he slipped and injured himself.  The respective parties' safety experts disagreed whether the stairs were smaller and steeper than typical stairs; were worn on the edges thereby making the stairs more slippery especially when wet; and if they showed signs of longstanding wear and tear providing a decreased coefficient of friction creating a dangerous condition that was not in compliance with accepted construction site safety measures.  The Court of Appeals found questions of fact regarding whether or not the staircase provided adequate protection, noting that the competing opinions of the respective expert created questions of fact which the jury will need to decide regarding the adequacy of the safety device provided (O'Brien v Port Auth. of NY and NY).

LABOR LAW, PT IV:  A plaintiff claimed he was injured while taking materials to a truck to be transported to a construction site. Defendants established that the location where plaintiff's accident occurred-a parking lot used to store materials and where the truck was parked-was several blocks from the construction area. The court found that at the time of his accident, plaintiff was not working in a "construction area" within the meaning of Labor Law 241(6) (Bessa v Anflo Indus., Inc.).

LABOR LAW, PT V:  Plaintiff, during the scope of his employment, fell down a flight of stairs and brought claims under Labor Law section 200, alleging that there was insufficient lighting in his workplace, causing a hazardous condition.  Defendant moved for summary judgment, noting that all the parties testified that the light at the top of the stairs was working.  The Third Department held that summary judgment was not appropriate as there was a triable issue of fact as to whether the lighting was sufficient in light of testimony which indicated that the light at the bottom of the stairs was not working, and whether that created a hazardous condition (Hall v Queensbury Union Free School District). 

VACATE DEFAULT JUDGMENT:  The Second Department affirmed the decision to deny plaintiff's motion for default judgment where there was minimal delay presented by the default, no prejudice to plaintiff, no willfulness on the part of the defaulting defendant, and in light of public policy favoring resolution of cases on the merits (Koren v Albert Warehouse & Son, Inc.).

PRACTICE TIP:  A hat-tip to Erin Molisani, who found this case.  Erin has developed a reputation of handling default judgment cases and has vacated millions of dollars of judgments for her clients.  We have nicknamed her "The Vacater" because of this talent. 

CHANGE IN DOG BITE STANDARD?:  Plaintiff was injured by defendant's thirty-pound dog that was leashed to an unsecure five-pound bicycle rack. Despite dismissing the claim because of plaintiff's failure to show the dog's prior vicious propensity, the Appellate Division recognized plaintiff's "persuasive argument" that the Bard Rule (vicious propensity rule) may no longer be prudent policy because it immunizes a defendant, as in this case, who was clearly negligent in controlling or failing to control their dog ( Scavetta v Wechsler).

PRACTICE TIP:  Keep an eye on this case.  You can expect enterprising plaintiffs' attorneys to start raising new theories of liability against pet owners based on the rationale presented here. 
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