June 2018 Nash Connors, P.C. Newsletter
Summer has finally arrived, and the only thing more perfect than Justify winning the Triple Crown is the Nash Connors, P.C. newsletter!  Please enjoy our June edition, which has a great summary of recently-decided cases from New York State.  For those of you going on vacation this month, we hope you have a great time.  Look for our next newsletter after the Fourth of July.
News from Nash Connors, P.C.  

The Small Business Administration gave Nash Connors, P.C. an award last month for being one of the SBA's "businesses of the year."  We are quite proud to receive such an honor from the government!  You can find more info on the award here (hint: Dan and Jim are in the far left-hand corner of the photo).

Jim Nash concluded his three-year term as an elected Director of the Bar Association of Erie County.  During that time, Jim was able to help balance the budget and institute new programming for the 4,000-member organization.
Case Law Update

TOTALLY TUBULAR: Plaintiff, while snow tubing at an adventure park, was tandem-tied with her two daughters' tubes. They slid out of the tubing lane and collided with a metal pole. Defendants moved for summary judgment asserting primary assumption of risk, upon a showing that plaintiff had snow tubed in the past, had made several runs on that day, and that the plaintiff had consented to the tube being spun by the attendant. However, plaintiff raised an issue of fact with proof that the tubing lanes froze up that particular day, which in the past had led to tubers leaving the lane when spun. Further, the park's policy was to prohibit tandem riders under icy conditions, so plaintiff successfully raised a triable issue of fact such that summary judgment was denied ( Thompson vs Windham Mountain Partners, LLC).

ASSUMPTION OF RISK:  Plaintiff was injured when she fell from a horse during a riding lesson at defendant's stables and her lawsuit was dismissed because of the assumption of the risk doctrine.  The appellate court held that even though plaintiff signed a liability waiver, she was a beginner and had never attempted to mount or ride a horse. The Court held that there were issues of fact regarding whether defendants unreasonably increased the risks associated with mounting the horse by failing to give plaintiff adequate instructions and assistance based on her size, athleticism, and obvious struggles in attempting to mount the horse, and whether there were concealed risks of mounting the horse, i.e., whether the horse was "tacked" properly (Jones vs Smoke Tree Farm).
LABOR LAW, PT I:  Plaintiff was injured while working for a sign maintenance and alteration company after slipping on a landscape rock on the property owned by defendant. The appellate court affirmed dismissal of plaintiff's Labor Law section 200, 240(1) and 241(6) causes of action because plaintiff was not obliged to work at an elevation which is a necessary element for recovery. The evidence showed plaintiff was performing work at eye level and he could have reached the sign from the ground. Thus, inasmuch as it was not necessary for plaintiff to stand on the rock to perform his work, he was not exposed to an elevation-related hazard of the type contemplated by the statute (Maracle vs Autoplace Infiniti, Inc.).

LABOR LAW, PT II:  Plaintiff was performing masonry work when he was struck by a truck tire rim that fell from the roof several stories overhead. Defendant had placed the tire rim as part of its roofing activities. Among other issues, the court found that defendant was not entitled to summary judgment dismissing the Labor Law claims because the proof showed that defendant had the authority to supervise and control both the activity that caused the injury and the area where that work occurred ( Wellington vs Christa Construction, LLC).
SHE DIDN'T VOLUNTEER TO GET HURT:  Plaintiff was struck in the head as she exited her residence that was being painted by volunteers as part of a neighborhood rehabilitation project. The appellate court held that under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency.  Here, defendants failed to establish as a matter of law that the volunteers at the residence where plaintiff was injured may not be considered their servants for purposes of respondeat superior liability or that the duty to ensure that the work was performed safely may not fairly be imposed upon them (Rozmus vs Wesleyan Church of Hamburg).
MUNICIPAL LIABILITY:  Plaintiffs were walking their dog when defendant drove his vehicle up a paved driveway connecting the street to a paved pathway and caused an accident. Plaintiffs alleged the City was negligent in "creating driveway access" to the pathway without installing any type of barricade.  The appellate court held that a municipality's operation of a park is a quasi-private or corporate function, and not a governmental function.  As a result, the municipality may not ignore the foreseeable dangers it created by failing to install barricades ( Brady vs City of N. Tonawanda).

EXCITED UTTERANCE:  Defendant was convicted in a shooting incident based in part upon a statement overheard on the 911 call by an unknown person who identified the defendant as being the shooter.  The trial court allowed the statement to be introduced at trial under the "excited utterance" exception to the hearsay rule, a decision that was affirmed by the appellate court.  The Court of Appeals reversed, reasoning that for the excited utterance exception to apply, the State had to establish that the person making the utterance personally observed the incident in question, which the State was unable to do ( People vs Cummings).

NO FAULT S.O.L.:  A plaintiff was injured in an accident while a passenger on a bus owned by the New York City Transit Authority.  She sought chiropractic care and assigned her rights to recovery of no-fault medical expenses to the chiropractor, who immediately submitted the proper No-Fault forms and invoices to the transit authority, as it was self-insured and had no No-Fault coverage.  Almost 6 years later, the chiropractor sued for the unpaid invoices and the transit authority moved to dismiss based upon the statute of limitations.  In applying the 3 year limitations period and dismissing plaintiff's case, the Court of Appeals held that a 3 year statute of limitations applies to actions to recover for a liability created by statute, and this action arose out of the No-Fault statute ( Contact Chiropractic vs New York Transit Authority).

LIABILITY-SHIFTING STATUTE: Plaintiff sued a municipality and an abutting property owner after tripping and falling on an uneven sidewalk slab. The municipality had a liability-shifting statute, putting the duty to keep the sidewalk in good repair on the abutting property owner. However, liability was not imposed against the property owner because the statute did not specifically impose tort liability for a breach of that duty ( Bousquet vs Water View Realty Corp.).

PRACTICE TIP: Not all of the Appellate Divisions hold to the rule that tort liability must be specifically imposed on the abutting property owner. The Fourth Department has held that where it is clear that liability is meant to be shifted, the Court should follow that intent and not involve itself with correcting poorly-written legislation.

CRACK KILLS: Plaintiff was playing basketball on a municipality-owned basketball court when he tripped on a crack on the surface of the court. Defendants were granted summary judgment on the basis of primary assumption of risk, where testimony showed that plaintiff was aware of the court's cracks in general and the particular crack he tripped on before the accident ( Philius vs City of New York).

A SLAM DUNK OF A MOTION:  Plaintiff was attending a basketball camp at Hofstra University when he was injured while dunking in a slam dunk competition. He alleged negligent supervision in his lawsuit. The court applied the primary assumption of risk doctrine in finding that, even with a "sports expert" affidavit submitted by plaintiff, plaintiff assumed the risk of injury by voluntarily participating in the slam dunk competition ( Osmond vs Hofstra University).

WHO IS THE OWNER OF THE CAR??? A defendant obtained car insurance coverage for a vehicle and executed a bill of sale for its purchase, and the same day, her son was involved in an accident while driving it. The seller's failure to remove the license plates, change the registration to the buyer's name, and remove the car from its insurance estopped the seller from denying ownership of the vehicle on public policy grounds ( White vs Mayfield).

TWO SLIPS DON'T MAKE CONSTRUCTIVE NOTICE: Plaintiff slipped and fell on a patch of ice covered with a dusting of snow in defendant's parking lot. Defendant was entitled to summary judgment dismissing the complaint to the extent it alleged actual notice. One of defendant's employees had slipped in a different area of the parking lot the same morning, but this general awareness was insufficient to charge defendant with actual notice. However, because that employee's slip was several hours before, the court declined to dismiss the complaint on the constructive notice theory as presenting questions of fact of the jury ( Cosgrove vs River Oaks Restaurants, LLC).

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