Please enjoy this newsletter from Nash Connors, P.C.
August 2016 Nash Connors, P.C. Newsletter
There is no better beach or pool-reading material than New York case law updates!  In this month's issue we highlight how the Court of Appeals enlarged a manufacturer's duty to warn in products liability cases, survey a number of school supervision / premises liability claims and talk about snow plow contractor liability (what else would you talk about in August than snow?).  Enjoy!
Case Law Update

DUTY TO WARN OF DEFECTIVE PRODUCT:  New York's highest state court -- the Court of Appeals -- ruled that a manufacturer has the duty to warn users about the dangers of using its product in connection with another company's defective product in an asbestos lawsuit ( In re Matter of NYC Asbestos Litigation).

PRACTICE TIP:  This decision could be a game changer.  Previously the law in New York was that one manufacturer did not need to warn of a danger when its product was used in conjunction with a defectively-manufactured product made by another company.  The new Court of Appeals case, however, may significantly broaden a manufacturer's potential liability now that a manufacturer's duty to warn has been greatly expanded to include defective products made by a third-party that is used with its own product.

  Plaintiff's suit against a store because she tripped over the shopping cart corral in the parking lot was dismissed by a summary judgment motion.  The base of the corral was only 3/8" off the ground and, despite the lack of lighting over the corral, the Appellate Division reasoned that it was neither hidden nor constituted a trap ( Myles vs. Spring Val. Marketplace, LLC, et al.).

The Second Department held that a snow plow contractor was not liable for negligence simply because it failed to perform snow and ice removal work ( Santos vs. Deanco Services, Inc.).

PRACTICE TIP:  If you handle snow plow contractor cases, you'll know that Espinal vs. Melville Snow Contractors, Inc. is the "grand daddy" of all snow removal cases.  Espinal teaches us that a contractor does not owe a duty of care to injured third parties unless: (1) the snow plow contractor "launches an instrument of force or harm"; (2) the injured party detrimentally relies on the continued performance of the contract; or (3) the contract was so comprehensive and exclusive that it entirely displaced the property owners duty to maintain the premises.

The Santos case is important because the Second Department held that merely not doing any snow or ice removal (an act of omission) is not the same as affirmatively creating a defective condition (or "launching an instrument of force or harm"). In short, a snow plow contractor who does not do any work does not owe a duty of care to plaintiff under the "instrument of harm" basis of Espinal liability.  Keep this in mind the next time you are defending a snow plow contractor who has been accused of being negligent for failing to perform any snow or ice removal.

ESPINAL DUTY OF CARE, PART II:  The Second Department also granted a construction contractor summary judgment when plaintiff fell on a staircase that the contractor previously repaired.  Although the contractor removed and replaced the handrail that caused plaintiff's accident, the Court found that this work did not make the area any more dangerous than it had been before ( Barone vs. Nickerson).

PRACTICE TIP:  Remember that Espinal applies to all types of third-party contractors and not just snow removal companies.  This includes automobile mechanics, maintenance contractors and cleaning companies.  Plaintiffs have a difficult time establishing a duty of care against these type of defendants. 

: Plaintiff, a 16-year old boy, was beaten up by gang members as he was walking from his school to a restaurant.  The proof in this case demonstrated that plaintiff was aware of the presence of the gang members before he left school property.  The appellate court said that because the fight took place off school grounds, and that plaintiff testified that he was not in any fear as he left school, the school district did not owe him a duty of care and granted it summary judgment ( Diaz vs. Brentwood Union Free School District).

SCHOOL SUPERVISION, PART II:  A fifth-grade student was injured when he was hit in the eye by a ball during school recess.  Previously the school prohibited plaintiff from paying sports in recess because of a medical condition.  Plaintiff sued for negligent supervision and the school moved successfully for summary judgment.  The Court said that the school provided adequate supervision and that any alleged lack of supervision was not the proximate cause of the accident ( Perez vs. Comsewogue School District).

YOU WANT MORE SCHOOL SUPERVISION?  A 10-year old plaintiff broke her arm by slipping on the rubber surface of a playground that was covered with ice during recess.  Her family sued the school district for negligent supervision and for premises liability.  The Third Department granted the school district summary judgment on all claims because (1) plaintiff's accident happened 45 seconds after she ran outside and any negligence by the school was not the proximate cause; (2) it is permissible to allow school children to play outside in snow as long as they have sufficient footwear; and (3) the school had a sufficient student-to-teacher ratio outside when the accident occurred ( Elbadwi vs. Saugerties Central School District).

OPPOSITION TO SUMMARY JUDGMENT:  The Second Department granted defendant summary judgment despite plaintiff's claim that discovery was not finished.  The Court reasoned that plaintiff failed to show how further discovery would lead to evidence to defeat the motion.  "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" ( Pabarroo vs. TS 405 Lexington Owner, LLC).

PRACTICE TIP:  Don't just take plaintiff's counsel's assertion that s/he needs more discovery to respond to your dispositive motion.  Make opposing counsel show how the requested additional discovery would actually help them defeat your motion.  Anything less should be insufficient to oppose your motion.

WHO KNEW SUMMARY JUDGMENT COULD BE THIS FUN?  The Appellate Division, in a lengthy decision, reminded us that a passenger in a vehicle usually is entitled to summary judgment on the issue of his or her comparative negligence, but that an award of summary judgment against the the driver of the other vehicle is not automatic ( Oluwatayo vs. Dulinayan). 

PRACTICE TIP:  This decision essentially means that just because a plaintiff who was sitting in the passenger seat has no comparative negligence does not mean that the driver of the vehicle that struck him or her automatically is negligent.  Plaintiff must still prove the other party's negligence.
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