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January 2017 Nash Connors, P.C. Newsletter
The holidays are over and now it is time to get back to business (and bad weather -- we got two feet of snow last night!).  Please accept this as our first newsletter of the new year.  The attorneys at Nash Connors, P.C. hope that everyone has a happy, safe and successful 2017!
Philip Gulisano Joins the Nash Connors Team

We are very excited to announce that Philip Gulisano has joined the firm as our latest partner!  Phil is a trial attorney that has practiced law for more than two decades at some of Buffalo's best-known law firms.  He brings a wealth of knowledge to the litigation team and has extensive experience defending clients in complex tort, personal injury and large loss cases involving claims of product liability, premises liability, trucking/motor carrier negligence and construction/labor law.  You can learn more about Phil on his bio on our website.

WNY Trial Lawyers Association

The board of the Western New York Trial Lawyers Association has asked Jim Nash to run for President of the organization.  The Trial Lawyers Association is the only group in Buffalo whose members include attorneys that represent plaintiffs and defendants, as well as members of the judiciary.  The election will be held later this month.  
Case Law Update

EMERGENCY VEHICLE STANDARD OF CARE:  In New York, emergency vehicles that go through red lights may be held to a lower standard of care (reckless disregard vs. ordinary negligence).  The Fourth Department recently ruled that plaintiff was not entitled to the ordinary negligence standard despite the fact that the driver of a fire truck admitted to repeatedly turning on and off the truck's sirens so he could communicate on the radio as it approached the intersection where the accident occurred ( Rice vs City of Buffalo, et al.).

SWIMMING POOL ACCIDENT: A homeowner was entitled to summary judgment on the basis of assumption of risk when plaintiff, an experienced swimmer, dove into the shallow end of a pool an injured himself.  Plaintiff claimed that the pool lacked a rope and float assembly to warn swimmers about the shallow end.  The court cited the facts that plaintiff lived on the same street as the homeowner, had previously swum in the pool without incident and knew about the dimensions of the pool ( Brady vs Domino).

ELEVATOR ACCIDENT:  Plaintiff was injured when she was struck in the shoulder by a closing elevator door, while attempting to enter it. In dismissing the claim, the First Department held that defendants demonstrated their prima facie entitlement to summary judgment by presenting evidence showing that the elevators were regularly inspected, and the door of the subject elevator was operating properly before and after plaintiff was struck in the shoulder by the closing door, while attempting to enter it ( Sanchez vs New Scandic Wall Limited Partnership).

FOOTBALL INJURY:  A college student playing in an intercollegiate football game had his lawsuit dismissed because he voluntarily consented to the risks inherent in playing football ( Butchello vs Herberger).

CHASING CARS?  Plaintiff, who was running behind a rolling car in an attempt to stop the vehicle, was struck and injured.  The Fourth Department affirmed summary judgment to defendants, who allegedly parked the vehicle on a incline.  In short, the court said that defendants' alleged negligence was not the proximate cause of the accident because it did not cause plaintiff, "who was in a safe position," to chase after the run-away vehicle ( Kilmer vs Mastropietro, et al.).

TMJ VERDICT:  Plaintiff aggravated her previously asymptomatic TMJ condition in an accident, required a bilateral TMJ arthroplasty and was not able to open her mouth and/or required it to be wired shut for nearly three years.  She also developed complex regional pain syndrome in her mouth.  Plaintiff was awarded $200,000 for past pain and suffering, $100,000 for future pain and suffering and $125,000 for future medical expenses.  The trial court increased those amounts to $300,000 for past pain and suffering, $600,000 for future pain and suffering and $207,000 for future medical expenses.  In total, the award was increased by $682,000 and affirmed by the Fourth Department ( Castro vs Professional Golf Services, Inc.).

SPEEDING GOLF CARTS:  Defendants were entitled to summary judgment on plaintiff's claim that he was injured while riding a golf cart that was being operated on an excessively steep and winding cart path.  In affirming summary judgment, the Fourth Department said that plaintiff was an experienced golfer who had played that particular hole previously; that she knew it had rained night before; and that she was aware that leaves and other litter may collect on the cart path ( Kirby vs Drumlins, Inc.).

LABOR LAW:  Plaintiff was injured as he was replacing a sewer pipe in a building's basement.  The pipe was seven to eight feet long and weighed between sixty and eighty pounds.  Defendants were able to get the Labor Law action dismissed because the pipe was only one foot above plaintiff's head and was always within reach.  As a result, the height differential between the pipe and plaintiff was considered "de minimis" ( Kuhn vs Giovanniello).

Plaintiff was using an A-frame ladder when he received an electrical shock, fell from the ladder and sustained injuries.  The Court of Appeals reversed the Appellate Division and ordered that plaintiff's motion for summary judgment be denied.  There were questions of fact as to whether the ladder failed to provide proper protection and whether plaintiff should have been provided with other safety devices (Nazario vs 222 Broadway, LLC).

SOLE PROXIMATE CAUSE:  Plaintiff injured his hand while operating a hydraulic flatbed truck.  He sued a local municipality whose employees were delivered wood chips to his house.  The Third Department awarded the municipality summary judgment, and stated that it was reluctant to extend impose liability for failure to control the conduct of others (i.e., plaintiff).   In sum, the appellate court said that plaintiff's actions were the sole proximate cause of his accident (Barone vs Town of New Scotland). 

DEFENSE VERDICT: Plaintiff was injured after falling 18 feet while dancing on an Art Exhibit at defendants' art festival. She climbed to the top of an art installation and begun to dance on it. When other people reached the top and started dancing, she fell off. In upholding the jury's decision that defendants did not breach its duty to maintain the Drop in a reasonably safe condition, the First Department held that Jury's decision was based on a reasonable interpretation of the evidence (Solomon vs City of New York ).   
Nash Connors, P.C. | | (716) 842-4121 |

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