April 2018 Nash Connors, P.C. Newsletter
We have a fabulous newsletter this month for everyone.  In it, you'll find a great recap of recently-decided cases from New York State, how the new Facebook privacy settings may affect personal injury claims, some great things that the attorneys at the firm are doing and, lastly, a fantastic trial result we got in March.  It's a perfect way to usher in spring!
News from Nash Connors, P.C.

Jonathan Cox got a defense verdict after a week-long trial in Erie County Supreme Court.  Plaintiffs claimed they were forced to leave the sidewalk and enter the roadway because of the presence of snow and ice on Jon's client's property.  A vehicle struck plaintiffs as they walked in the road.  His verdict is even more impressive considering the Buffalo News ran an article the week of the trial about how people are "shaming" property owners on Facebook who do not clear snow and ice from their sidewalks.


Matthew Louisos and Michael Pretsch volunteered as judges for the Herbert Wechsler National Criminal Moot Court Competition.  The University of Buffalo School of Law hosted this competition.  Named after Herbert Wechsler, who drafted the Model Penal Code, this competition is the only national moot court competition in the United States to focus solely on topics of substantive criminal law.
Facebook and Privacy Issues

Facebook has changed its privacy settings to allow users greater control over what they share and, more importantly, over what they have already shared.  The new settings will allow Facebook users to view the content that they have shared in the past and permanently delete that content.  In an effort to give users a clearer picture of their past posts, users will now be able to download a readable copy of all the data that they have shared or posted.  We pass this information along because plaintiffs will now have the ability to permanently delete photos and posts that could be used as impeachment material.
Case Law Update


RUNAWAY BOBCAT (LABOR LAW):  Plaintiff sued the general contractor after a  skid steer drove over his foot.  The GC moved for summary judgment, and the negligence and Labor Law § 200 claims were dismissed because the accident happened due to how the work was performed and not from a defective condition on the property.  The GC was also entitled to summary judgment on the Labor Law § 241(6) claim because plaintiff was doing landscaping work that, according to the appellate court, was not related to the ongoing construction work (Calvert vs Duggan & Duggan).
 
PRACTICE TIP: Occasionally we are asked if certain motorized devices (such as go-karts, golf carts, etc.) are considered "motor vehicles" under Vehicle & Traffic Law § 388 (which imposes vicarious liability to the owner of a vehicle when an accident is caused by a permissive driver).  This decision does a great job of defining the term "motor vehicle": It must have a running motor and be operated on a "public highway."  In this case, although the skid steer had a motor that was operating, it was being driven in  parking lot and, as a result, it was not a "motor vehicle" because it was not on a public road.


LABOR LAW, PT II:  Plaintiff was injured as he was operating a piece of equipment that crushed scrap metal.  The appellate court affirmed summary judgment in favor of the property owner, noting that Labor Law § 240(1) applies when the plaintiff is "altering or erecting" a structure at the time of the accident.  Even assuming that the machinery used to crush the metal was a structure, operating that machinery does not constitute "altering or erecting" under the Labor Law, and for that reason plaintiff was not afforded the protections of § 240(1) ( Lopez vs 6071 Enterprises, LLC).


NOT SO SOPHISTICATED AFTER ALL...  Plaintiffs, who were workers at a plant that manufactured electronic components, sued the manufacturers of silica, a chemical that causes severe respiratory problems.  The manufacturers moved for summary judgment on the issue of improper warnings by arguing the "sophisticated intermediary doctrine."  Essentially the manufacturers said that they only had to warn plaintiff's employer (who purchased the silica) and not plaintiffs (the people who were actually exposed to it).  This rule is premised on the belief that the employer is in the best position to warn its employees about the risks of a product.  The silica manufacturers argued that the employer's knowledge of the risks satisfied any duty to warn.  The appellate division disagreed and said it is not a complete defense to a failure to warn claim that the employer (and not the end-user) knew about the risks ( Rickicki vs Borden Chemical, et al.).

PRACTICE TIP: If you handle products liability cases in New York, you need to read this decision.  It seems like a manufacturer can shield itself from liability on a failure to warn claim if the entity to whom it sells the product has some knowledge of the risk, despite the fact that the intended end-user has no idea.  Previously this rule was typically seen in the context of pharmaceutical litigation.  Its applicability seems to have been broadened.  Please note that two justices dissented and it is almost a certainty that the Court of Appeals will have the last word on this issue.


BUT HE NEVER EVEN ASKED FOR IT!  Plaintiff's counsel filed, but did not serve, a Summons and Complaint.  He then filed an Amended Summons and Complaint and served them on defendants, who moved to dismiss based on the Statute of Limitations.  The trial Court, on its own, dismissed the action based on CPLR § 306-b, which is the rule requiring any lawsuit to be served within 120 days of filing.  The appellate court affirmed this decision ( Vanyo vs Buffalo Police Benevolent Ass'n, et al.).   

PRACTICE TIP: Take a careful read of this decision because it is quite technical.  Two justices dissented, which means that the case likely will go to the Court of Appeals.  The dissent essentially argued that the trial Court had no power to dismiss the lawsuit based on CPLR § 306-b when the defense counsel never requested such relief in the original motion (that was based on the Statute of Limitations).


EXPERT OPINION: 
A jury, which returned a defense verdict, was entitled to disregard the opinions of two of plaintiff's treating physicians (claiming the accident caused her injuries) when the medical records showed prior complaints of neck pain.  This evidence provided "a rational process by which the jury could have found the accident was not a substantial factor in causing plaintiff's injuries" ( Cooper vs Nestoros, et al.).


HOW MUCH MEDICAL CAN THE DEFENSE GET?  Plaintiff was injured when he was struck in the head by defendant's aerial lift. Among other things, plaintiff alleged "pain and suffering, past, present, and future; permanency of his injuries and conditions, loss of enjoyment of life and loss of earnings." The appellate court held that this language was not so broad that it placed plaintiff's entire medical history in controversy. However, plaintiff's claims that he suffered post-concussion syndrome, sleep disorder and cognitive communication deficits did allow discovery of plaintiff's mental health and drug related treatment ( Castro vs Admar Supply Company, Inc.).

 
HULK HOGAN HAS NOTHING ON HIM...  Plaintiff's son was injured when an 11th-grade classmate unexpectedly walked up behind him before gym class and put him in a choke hold, causing him to lose consciousness and fall face-first against the floor. In dismissing the action, the appellate court held that schools can only be liable for a failure to supervise if it is established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury. Thus, "an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ( Hale vs Holley Central School District).
 

RECKLESS STANDARD:  Plaintiff was injured when her vehicle collided at an intersection with a police vehicle responding to the scene of an accident with an injury and was therefore operating an authorized emergency vehicle while involved in an emergency operation. Both parties allege that they had a green light. The appellate court held that the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road. Therefore, if a jury were to believe the police officer entered the intersection with a green light he would be held to a negligence standard and not a reckless standard ( Oddo vs City of Buffalo).


SPECULATION & DANGEROUS CONDITIONS : A claim brought by a plaintiff against a warehouse was dismissed, where plaintiff could only say "something disturbed" a steel beam that fell on him after it had been leaning against a wall for three years. The plaintiff's allegations were too vague to permit a factfinder to determine, without resorting to speculation, that the placement of the beam constituted a dangerous condition (Schonbrun vs Marjep Realty Copr., et al.).
 

OPEN & OBVIOUS CONDITION:
Defendant store owner was entitled to summary judgment upon its showing that the store sign plaintiff tripped and fell on was open and obvious and not inherently dangerous. Prior to the accident, plaintiff walked past the sign, walked back to look at it again, and tripped and fell on the base as she attempted to walk away the second time. Even with an expert witness offering an opinion, which was deemed speculative and conclusory, defendant was entitled to summary judgment ( Bartholomew vs Sears Roebuck and Co.). 
 
PRACTICE TIP: Unless defendant can show the open and obvious condition is also not inherently dangerous, the mere fact that it is open and obvious will only go to plaintiff's comparative negligence.


OPEN AND OBVIOUS, PT II:  Plaintiff tripped and fell due to the difference in elevation between a walkway and an abutting tree bed. Defendant moved for summary judgment for the same reasons as Bartholomew, above. The Supreme Court granted the motion and found that the condition was trivial and not actionable. The appellate court decided the motion on defendant's original position-that the condition was open and obvious and not inherently dangerous, and sidestepped determining whether the defect was trivial ( Costidis vs City of New York).

PRACTICE TIP:  It is not surprising the Court declined to determine whether an allegedly trivial defect was actionable --few courts have weighed in on this issue which would provide a bright-line rule for litigants to use as a measuring stick.


PAY ATTENTION TO THE PLEADINGS (AND HAMBURGER WRAPPERS): A plaintiff slipped and fell on a hamburger wrapper on the staircase of her rented property. She alleged the landlord-defendant was negligent in the ownership and maintenance of the property. In opposition to defendant's motion, plaintiff claimed for the first time that defendant violated various building code provisions concerning handrails on the staircase. In affirming defendant's dismissal from the case, the court noted plaintiff cannot raise new theories of liability in opposition to a motion that were not pleaded in the complaint ( Mazurek vs Schoppmann).


COLLAPSED STAIRCASE:  Plaintiff brought suit against a property owner after a metal staircase collapsed underneath him.  Plaintiff moved for summary judgment on the issue of notice by presenting unrefuted evidence that the stairs had been rusty for a period of time, that the landowner had no program of inspection, and that had the landowner inspected the stairs, the defect would have been found.  The appellate court held that defendant could be charged with constructive notice of the defect, citing to a previous decision in which it held that constructive notice can be established when a property owner fails in its duty to inspect its property, which would have brought the defect to the owner's attention ( Conklin vs 500-512 Seventh Ave., LP, LLC).


CAN THE DEFENSE AUDIOTAPE THE IME? 
Defendant noticed an independent medical examination of plaintiff, who initially refused to be seen for the evaluation.  As a result, the trial court ordered her to appear for a recorded examination.  Plaintiff arrived at the examiner's office, refused to be audio recorded, and told the examiner that she was not giving consent to be evaluated.  The appellate court upheld the decision to strike plaintiff's Complaint and impose financial sanctions for frivolous conduct ( Clark vs Allen & Overy, LLP).


REAR-END MVA
:  Plaintiff was a passenger in a vehicle that was struck from behind, pushing it into another vehicle.  Plaintiff sued the drivers of all three vehicles.  The front car and middle car successfully moved for summary judgment, arguing that they were at a standstill at the time of the accident.  Plaintiff attempted to raise an issue of fact as to their negligence by presenting evidence that they both stopped abruptly.  The rear driver had testified that she never touched her brakes before impacting the middle car.  The appellate court upheld the trial court's decision, holding that a "claim that the lead driver came to a sudden stop, standing alone, is insufficient to rebut the presumption that the rearmost driver was negligent" ( Giap vs Pham).


INSURANCE COVERAGE:
  The Court of Appeals held that the Additional Insured endorsement stating that "any person or organization with whom you have agreed to add as an additional insured..." requires privity of contract with the putative insured.  Thus, if a party seeks to enforce its AI status, it must have a direct contract with the party who owes AI status ( Gilbane Bldg. Co., et al. vs St. Paul Fire and Marine Ins. Co., et al.).


INSURANCE COVERAGE, PT II:  In determining the applicability of a long-tail claim relative to the extensive remediation of parcels of real property contaminated over a century of manufactured gas production, the Court of Appeals held that in a pro rata time-on-the-risk allocation, liability could not be transferred to carriers based upon the "unavailability rule" relating to insurance coverage for the properties over the years that production was taking place at the facilities.  The manufacturing company argued that the pro-rata allocation of liability should not include those years during which insurance coverage for this type of loss was not offered or was subsequently excluded.  Courts must first look to the terms of the policy and in this instance the multiple, successive policies limited the insurer's liability to losses and occurrences happening during the policy period, and not outside of it.  As such, the court declined to apportion damages to the carrier for the years that this type of coverage was either not available or had been excluded from the policies (Keyspan Gas East Corp. vs Munich Re America, Inc., et al.).
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