January 2018 Nash Connors, P.C. Newsletter
Our beloved Buffalo Bills are returning to the NFL playoffs for the first time in 18 years!  As Chris Berman has often said, "no one circles the wagons like the Buffalo Bills!"  Do you really need to know any more news than that?

We hope that everyone enjoyed the holidays and is comfortably getting back to business.  Please enjoy our first newsletter of the New Year.
SUM Legislation Update 

Readers of our November 2017 newsletter will recall that we alerted you to proposed legislation that requires automobile insurers to automatically provide UM/SUM limits that match the underlying bodily injury limits on a policy.  Last month Governor Cuomo signed that bill, which amends Insurance Law § 3420.  Now, unless the insured opts out of the matching limits, new or renewed policies automatically match the UM/SUM and bodily injury limits.  For example, if an insured purchases a policy with $100k/$300k bodily injury limits, the UM/SUM limits will automatically be the same.
Case Law Update

VICARIOUS LIABILITY FOR CAR OWNER/DRIVER'S EMPLOYER:  An employer was entitled to summary judgment on a respondeat superior claim (which holds an employer vicariously liable) when its employee left work early, visited a few bars and was on his way to his girlfriend's house.  The appellate court reasoned that his actions were for "wholly personal reasons" when driving the employer's vehicle.  That same court, however, found an issue of fact on whether the employee was a permissive user of the company-owned vehicle.  This ruling was despite the fact that the employer issued a written prohibition on unauthorized use of its vehicles eight days before the accident and, in addition, held a meeting where the new rules were discussed ( Baker vs Lisconish, et al).

PRACTICE TIP:  Two appellate judges dissented from the decision finding a question of fact on the permissive use issue.  This automatically permits an appeal to the Court of Appeals, which is New York's highest court.  The dissent focused on the facts that the employee/driver knew of the prohibition of using a company-owned vehicle for personal use; that he attended the meeting; that he never said his employer altered the policy to allow for personal use; and that the driver did not report the accident to his employer until a week after it happened, thereby "evidencing his guilty knowledge" that he did not have permission to drive the vehicle.  We will continue to monitor this case and report back once the Court of Appeals decides the matter.

SO THAT'S WHAT THEY CALL IT THESE DAYS???  Plaintiff was a bar patron who had a "verbal and physical encounter" with an off-duty police officer who was working security at the bar.  In addition to suing the off-duty cop, plaintiff also sued the City of Buffalo and its police department under a respondeat superior theory.  The appellate court affirmed summary judgment to the municipal defendants because the cop was off duty, was engaged in other employment as a private citizen, was not wearing his uniform, did not arrest plaintiff and not display his badge ( Maloney v Rodriguez, et al.). 

SERIOUS INJURY:  Defendant was not entitled to summary judgment on the "permanent consequential" and "significant limitation" categories because the IME physician referenced reports that had quantitative assessments of reduced range of motion.  In addition, the IME report did not address the purported curtailment of plaintiff's daily activities immediately after the accident, so defendant was not entitled to summary judgment on the "90/180 day" threshold ( James vs Thomas, et al.).

DOESN'T EVERYONE TURN LEFT WITHOUT LOOKING? Plaintiff, as she was driving straight, was entitled to summary judgment on negligence when defendant made a left-hand turn in front of her and admitted to not seeing her prior to impact.  However, plaintiff was not entitled to summary judgment on the "fracture" serious injury category because she allegedly walked on a broken femur for a day and a half after the accident ( Peterson vs Ward).  

NO, LANCE ARMSTRONG RODE FOR USPS: An appellate court affirmed the dismissal of a lawsuit when a bicyclist, who was traveling at a high rate of speed, crashed into the rear of a FedEx truck that was parked on the side of the road.  The court reminded us that there is a presumption of negligence in rear-end accidents and plaintiff in this case was not able to rebut that presumption ( Kraeger vs Federal Express Corp., et al.).

SPEAKING OF OVERNIGHT MAIL... Plaintiff, a former UPS driver, was injured when the door to an elevator at the premises where he was making a delivery closed on him and failed to re-open. The appellate court held that even though defendants no longer owned or controlled the property where the elevator was located, an adverse inference should be drawn as punishment for spoliation because they failed to advise the new owners to preserve the elevator until an inspection could be completed ( Moscione vs QPII-43-23 Ithaca Street LLC).

LEAD PAINT:  An appellate court denied the City of Rochester's motion for summary judgment based on governmental immunity in a lead paint case.  Plaintiff lived in city-owned property for a period of time.  The court reasoned that the city acted in a "proprietary function" because it essentially was a landlord, which is traditionally a private enterprise.  As a result, plaintiff's negligence case was permitted to continue ( Washington vs City of Rochester, et al.).

INJURED FIREFIGHTER:  Plaintiff was a firefighter who was injured while attempting to fight a fire that had originated in defendant's apartment. The Fire Marshall concluded that the fire originated in the area of a warming tray/hot plate that was left on by the defendant. The appellate court held that, although the trial court correctly concluded that defendant's alleged negligence was not a proximate cause of plaintiff's injuries, General Municipal Law § 205-a imposes liability where there is a practical or reasonable connection between a statutory or code violation and the firefighter's injury or death ( Walsh vs Michelson).

PRACTICE TIP: General Municipal Law § 205-a changed the old "firefighter's rule," which prevented injured firefighters and police officers from suing third parties for injuries sustained on duty.  A claim based on this law is based on a violation of some statute and not common law negligence.

HOW QUICKLY MUST THE MUNICIPALITY CREATE THE DEFECT?  Plaintiff fell through pavement next to a storm drain.  His expert said that the intake of storm water created the defect over time.  An appellate court affirmed summary judgment to the municipality because it neither had prior written notice of the defect nor did it create the problem ( Malek vs Village of Depew).

PRACTICE TIP:  One exception to the "prior written notice" rule is if the municipality creates a defect.  This decision reminds us that the municipality's activities must immediately create the condition.  If the condition developed over a period of time (as it did in this case), any work performed by the municipality is not sufficient to establish a negligence case.

BLAME IT ON THE HEADLESS HORSEMAN: P laintiff was injured when an explosion caused a manhole cover to lift his vehicle up and onto the opposite side of the roadway. The manhole and the sewer system beneath it were owned by the Village of Sleepy Hollow, and had been abandoned prior to the accident. Plaintiff claimed that the Village negligently abandoned the manhole, and allowed it to be paved over, inhibiting gasses from properly venting. In its motion for summary judgment, the Village established that there was no prior written notice of the alleged condition, and further that it did not create the condition through an affirmative act of negligence (Dibble vs Village of Sleepy Hollow).
OPEN AND OBVIOUS CONDITION: Plaintiff slipped and fell in mud as she crossed the spectator area near a youth baseball field. It had rained the day of the accident, as well as the three days before. The defendant property owner moved for summary judgment on the grounds that the mud was open and obvious, and not inherently dangerous. The appellate court affirmed summary judgment, finding that plaintiff's expert's opinion concerning maintenance of the field was speculative and conclusory ( Sirianni vs Town of Oyster Bay).

PRACTICE TIP: Note that it is not enough that a dangerous condition be open and obvious, as that would speak to plaintiff's comparative negligence. It must also be established that the open and obvious condition was not inherently dangerous. Compare to Bissett vs 30 Merrick Plaza, LLC, below.
ONE FOOT IN THE GRAVE : Plaintiff was visiting the graves of family members when her foot sank into the ground near a headstone. Her father, whom she was walking behind, had stepped in the same spot seconds before without issue. The cemetery owner moved for summary judgment on the grounds that it did not have notice of any dangerous condition. The lower court granted summary judgment and appellate court affirmed ( Carriero vs St. Charles/Resurrection Cemetery).

PRACTICE TIP: Since the burden of proof shifts to defendant on a motion for summary judgment, it is not enough to point to gaps in plaintiff's proof. It can be difficult to establish no constructive notice to defendants without proof of when the area was last inspected. Again, compare to Bissett vs 30 Merrick Plaza, LLC, below.     
OPEN AND OBVIOUS PART 2: Defendant property owner moved for summary judgment after plaintiff claimed to have fallen on a pile of wet leaves on one of the steps of an exterior staircase. The appellate court followed the same rule of law noted in Sirianni, above, and found there was a question of fact regarding whether or not the wet leaves on the stairs were open, obvious, and inherently dangerous. The appellate court also found defendant failed to show it did not have constructive notice where the building manager testified he could not remember when he had last checked the subject staircase on his weekly inspection before the accident (Bissett vs 30 Merrick Plaza, LLC).
LABOR LAW:  Plaintiff, a painter employed by a subcontractor hired by defendant in connection with a renovation project, was injured when he slipped and fell off an elevated loading dock. The loading dock, which was approximately four feet off the ground, had no guardrails, chain, rope, or other indication where its platform ended and the ledge began. At the time of the accident, the dock was overcrowded with workers reporting for work. In upholding the lower court's decision that Labor Law § 240(1) was applicable, the appellate court held that plaintiff was still entitled to the protections of § 240(1) even though he was not "working" and in street clothes at the time of the accident (Hoyos vs NY-1095 Avenue of the Americas, LLC).     
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