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December 2016 Nash Connors, P.C. Newsletter
The attorneys at Nash Connors, P.C. hope that you had an enjoyable Thanksgiving and wish you a very happy and joyous holiday season.  Please enjoy our last newsletter of 2016!
Case Law Update

DOES A SCHOOL BUS HAVE TO STOP EVEN WHEN THERE'S NO KID WAITING?:  A school district was entitled to summary judgment when its school bus was traveling within the speed limit, did not decelerate in an improper manner and operated in accordance within NYS and school district policies and procedures.   In this case, plaintiff claimed the school bus operator was negligent for failing to stop at "each and every designated stop."  The Fourth Department said there was no such requirement when there is no child waiting to be picked-up ( Wittman vs Nice, et al.).


DOES THIS MEAN WRESTLING IS A SPORT???: A lawsuit brought by a "professional wrestler" was dismissed on summary judgment because the Fourth Department said that plaintiff assumed the risks of injury.  The wrestler jumped from a four foot high rope into the ring and injured his neck and back.  The Court reminded litigants that the assumption of risk doctrine even applies to accidents in "less than optimal conditions" ( Kingston vs Cardinal O'Hara High School, et al.).


HERE'S SOME MORE ASSUMPTION OF THE RISK:  Defendants were entitled to summary judgment based on the doctrine of primary assumption of the risk when plaintiff, an experienced watersports instructor, was injured while riding a tube that was being pulled by a boat ( Chung vs Lehmann). 


SOLE PROXIMATE CAUSE:  A Labor Law § 240(1) lawsuit was dismissed because the laborer's actions were the sole proximate cause of his accident.  Plaintiff was doing roofing work when an unsecured truss broke free, causing him to fall to the ground.  The Fourth Department said that plaintiff's motion papers raise an issue of fact as to whether his conduct was the sole proximate cause because 1) plaintiff may have known he was expected to use an available ladder, 2) for no good reason he chose not to use the ladder and 3) he would not have been injured had he used the ladder ( Scruton vs Acro-Fab Ltd., et al.).

PRACTICE TIP:  Read the dissent that was authored by two appellate justices.  Basically this case was decided by the questions of fact raised in plaintiff's initial motion for summary judgment papers.  The majority opinion said that the burden never shifted to the defense to fully prove its sole proximate cause defense.  Also, because two judges dissented, this case will automatically go to the Court of Appeals for further appellate review.


SOLE PROXIMATE CAUSE, PART II:  Defendants were not entitled to summary judgment on their sole proximate cause defense to a Labor Law § 240(1) action when plaintiff fell from a 28 foot ladder.  Defendants argued that plaintiff should have used a 40 foot ladder to do his job.  The Court cited the fact that there was no such ladder readily available and, moreover, that plaintiff was instructed to complete his job "or be fired" ( Pacheco vs Halstead Communications, Ltd.).


WAX ON, WAX OFF: Plaintiff allegedly slipped and fell on the top step of a wooden staircase inside an apartment they leased from defendants. The Second Department ordered summary judgment in favor of defendants. Plaintiff testified that he did not see any foreign substance, liquids or other slippery substance on the steps either before or after the subject accident. The Court held that in the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a negligence cause of action ( Kapoor vs Randlett).


SERIOUS INJURY:  Defendant was entitled to summary judgment because plaintiff did not sustain a "serious injury" in a motor vehicle accident when his treating neurologist did not provide objective evidence of plaintiff's limitations and when plaintiff's claim of limitations were based on subjective complaints ( Martin vs LaVelley).


TRIVIAL DEFECT:  A contractor was entitled to summary judgment despite the fact that it installed bullnose tile in a bathroom that caused a "lip" between the tile and the adjacent floor.  The Fourth Department said that the height differential was only 1/2 inch and that the two flooring materials were different colors and, therefore, should have been noticeable ( Stein vs. Sarkisian Brothers, Inc.).


TRIVIAL DEFECT, PART II:  The Third Department refused to dismiss a lawsuit based on the alleged trivial nature of a defect.  In this case, plaintiff tripped on a damaged sidewalk.  Her expert said that there was a crack 18 inches long with and an uneven sidewalk differential of 1 inch ( Brumm vs. St. Paul's Evangelical Lutheran Church). 


THEY FIGHT IN HOCKEY?  A youth hockey league was entitled to summary judgment in a case where plaintiff was injured in a fight while she was watching a hockey game.  The Court of Appeals said that the fight was not reasonably foreseeable and, as a result, the hockey league had no duty to prevent it from happening ( Pink vs Rome Youth Hockey Assn, Inc.).


RESPONDEAT SUPERIOR:  Plaintiff's claims against the tortfeasor's employer were dismissed in a motor vehicle accident lawsuit because the tortfeasor was driving his own vehicle, the employer did not compensate the driver for his commute to the work site and the employer did not dictate to its employee how to drive that day (Figura vs Frasier, et al.). 


MORE LABOR LAW:  The First Department ruled that a plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim when a metal beam fell off a forklift as it was being loaded onto a truck that hit the worker.  The Court noted that summary judgment was appropriate because of the elevation differential and disagreed with the sole proximate cause defense because of the forklift operator's actions ( McLean vs Tishman Construction Corp.).


EVEN MORE LABOR LAW:  The Second Department held that plaintiff, who fell from a scaffold, was not entitled to summary judgment on his Labor Law § 240(1) claim because there were questions as to how the accident happened.  The Court reminded us that "the mere fact that a plaintiff fell from a scaffold does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury'" ( Karwowski vs Grolier Club).
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