September 2018 Nash Connors, P.C. Newsletter
We hope everyone had a relaxing and enjoyable summer.  Our office sends its best wishes to our friends in the south following Hurricane Florence.  You certainly have been in our thoughts this past week.  Please enjoy some news from the office, a few of our recent successes this summer and a great summary of appellate decisions from New York State.
News from Nash Connors, P.C.  

Dan Connors, Jim Nash, Jon Cox and Mike Dixon all were listed in this year's Super Lawyers magazine for Upstate New York.  Less than 5% of attorneys receive this recognition every year.

Last week Mike Dixon was inducted into the Western New York Baseball Hall of Fame.  Mike was part of a powerhouse team that won the National Amateur Baseball Federation championship against Louisville.

The BISON Children's Scholarship Fund re-appointed Jim Nash to a three-year term on its Board of Trustees.  This organization awards more than 2,000 scholarships every year to children in the Western New York area.

A number of Nash Connors, P.C. attorneys were victorious in court this summer. Phil Gulisano and Matt Louisos received summary judgment for a manufacturer of passenger transport buses. Plaintiff claimed that the bus she was exiting had negligently designed hand-rails and steps and/or a manufacturing defect. Phil and Matt used expert proof to establish that when the bus was designed, all applicable industry standards, codes and regulations were met and that the bus was manufactured in accordance with those standards.   
Andy Kowaleski got his client summary judgment in a four vehicle rear-end motor vehicle accident. The court held that his client had a non-negligent explanation for striking the rear of the plaintiff's stopped vehicle.  The court rejected plaintiff's argument that there was a question of fact regarding the order of collisions between the vehicles, and that our client did not contribute to the accident based on her testimony that she was struck from behind as she applied her brakes to stop behind the plaintiff's vehicle.  
Jim Nash obtained summary judgment for a bank in a premises liability case.  Plaintiff fell over a defect in a sidewalk outside of the bank branch, and there was an orange safety cone with the initial's of the bank written on it.  Jim convinced the court that despite the presence of the bank's initials on the cone, the bank had no involvement in either the cone or maintenance of the sidewalk.
Mike's Mediation Minute 

From the Desk of Mike Dixon:

Serving as an arbitrator or mediator, I have found that it is extremely helpful to receive thorough submissions from the parties.  I'd estimate that approximately 95% of an arbitrator's or mediator's knowledge comes from the parties' submissions.  Attorneys shouldn't overlook the impact or significance of a submission.  Don't wait until the last minute to put a submission together.  Instead, much like preparing for a trial, you should carefully consider your arguments and prepare a thoughtful and deliberate presentation.  You must also make sure that the mediator or arbitrator has all of the documents necessary to support your position-- don't assume the other side will provide those documents!
Case Law Update
FAILURE TO ASSIGN COUNSEL / DEFAULT JUDGMENT:  After falling at a hotel, plaintiff sued the corporation that she believed owned the business.  After learning the identity of the true owner, she commenced a second suit.  The defendants in both actions were related and, in both instances, forwarded copies of the suit papers to their insurance company.  Nationwide assigned a defense firm to represent defendant in the first suit, but the adjuster failed to assign defense counsel to defendants in the second suit.  The appellate court held that the inadvertent failure to assign defense counsel was a reasonable excuse for a default judgment ( Vogt vs Eberhardt, et al.).

"SERIOUS INJURY" THRESHOLD:  Defendant moved for summary judgment in a motor vehicle case by arguing that plaintiff did not sustain a "serious injury" because of her pre-existing condition.  In response, plaintiff successfully raised a question of fact on the issue of injury causation by submitting an affidavit from her chiropractor identifying specific disc injuries, providing quantifiable ROM reduction measurements and stating that the injuries were caused by the accident ( Rodriguez vs First Student, Inc., et al.).

WE KNOW THE BILLS ARE BAD, BUT REALLY?  Plaintiff, a fan of our archenemy Miami Dolphins, was beat up at a Buffalo Bills game.  He sued the team, the County of Erie (who owns the stadium) and a private security company for negligent security.  The appellate court upheld summary judgment in favor of defendants because the attack was extraordinary and not foreseeable ( Wrobel vs Buffalo Bills, Inc., et al.). 

LABOR LAW, PT I: Plaintiff was injured after falling from a height while repairing a detached garage associated with a church rectory used for both residential and church purposes. The certificate of occupancy indicated that the rectory constituted a dwelling and a private garage. In dismissing the case, the appellate court reminded us that the exemptions to Labor Law §§ 240(1) and 241(6) apply to "owners of one and two-family dwellings who contract for but do not direct or control the work" and, additionally, that plaintiff failed to show that the exemption was inapplicable ( Bautista vs Archdiocese of New York).

LABOR LAW, PT II:  Plaintiff fell when the "toe boards" detached from a roof and sued the property owner and general contractor. There was no written contract between the defendants, but there was an "addendum" containing an indemnification provision. The appellate court said that plaintiff was entitled to summary judgment under Labor Law § 240(1) because the detachment of the "toe boards" constituted a failure of a safety device.  The appellate court further held that the property owner was not entitled to summary judgment on its contractual indemnification claim because the work at issue was not covered ( Provens vs Ben-Fall Development, LLC et al.).

LABOR LAW, PT III:  Plaintiff was injured at a job site when his foot slipped through openings in a rebar grid that was 18 inches above corrugated steel decking. Defendants moved for summary judgment to dismiss plaintiff's claims under Labor Law §§ 240(1) and 241(6). The Court held that defendants were entitled to summary judgment under § 240(1) because the grid did not present an elevation-related hazard to which the protective devices were designed to apply. The appellate court further held that defendants were entitled to summary judgment under § 241(6) because the openings were too small for a worker to completely fall through and as such were not a hazardous opening under the regulations ( Johnson vs Lend Lease Construction LMB, Inc.).

LABOR LAW, PT IV:  Plaintiff sustained injuries while descending a ladder that shifted while working as a painter/plasterer at a condominium building.  He sued a number of parties, including the architect. Plaintiff was properly denied summary judgment under Labor Law §§ 240(1) and 241(6) because the architect did not have supervisory authority, and it did not direct or control the work giving rise to the accident (   Naupari vs Murray, et al.).

NO LIABILITY FOR ESCALATOR TUMBLE: Plaintiff sustained injuries riding an escalator when it allegedly sped up, causing her to fall backwards. She claimed the escalator was negligently maintained by the owner and also alleged liability under the doctrine of res ipsa loquitur. Defendant moved for summary judgment, arguing it had no notice of any defective condition based on proof that it regularly maintained and repaired the escalator and there were no prior complaints about the escalator steps or stairs moving at different speeds. In opposition, plaintiff argued that the maintenance and repair records showed there were problems with the escalator. In affirming dismissal, the appellate court held that the prior issues with the escalator that gave rise to the repairs were not the same issues plaintiff for which plaintiff now complained. Noteworthy, the court stated that a "general awareness" by defendant of certain "problems" with the escalator is not sufficient to establish actual or constructive notice of the actual issue giving rise to the incident. Moreover, plaintiff could not demonstrate defendant was in exclusive control of the escalator or that the accident was the kind that does not ordinarily occur in the absence of negligence to show the doctrine of res ipsa locquitor applied (Faville vs County of Albany).

SCHOOL LIABILITY:  An elementary school student, who missed her school bus, was told by school officials to walk home and was then hit by a car.  The school made no alternative arrangements to get the child home.  The appellate court affirmed the denial of summary judgment to the school because it violated its own policies by releasing the child into a "foreseeably hazardous setting" that was partly of the elementary school's own making ( Deng v Young, et al.).

PRACTICE TIP:  This decision specifically says that the holding should not be applied to the usual situation of when a child walks home from school with parental permission or part of his/her normal routine.

SCHOOL LIABILITY, PART II:  A vehicle struck a second grade student as he was crossing the street after school. There was no crossing guard assigned to the intersection where the accident occurred, but typically there was a crossing guard at the intersection one block away. Plaintiff argued that the municipal defendants were negligent in failing to have a crossing guard at the intersection where the accident occurred. The municipal defendants moved for summary judgment, arguing that they were immune from negligence claims arising from the performance of their governmental functions. The Court granted the municipal defendants' motion for summary judgment, holding that there was no special relationship between the infant plaintiff and the defendants giving rise to liability. The Court further held that the municipal defendants' duty was only to limited to providing a crossing guard at the intersection where crossing a guard was regularly located, and did not extend to the nearby intersection where no crossing guard was ever assigned ( Ade vs City of New York).

THAT'S A COSTLY TYPO:  A jury verdict sheet in a motor vehicle accident case asked: "Was the negligence of defendant a substantial factor in causing injury to the plaintiff?" The jury answered the question "No."  (The jury was not asked if plaintiff sustained a "serious injury").  The appellate court said that the trial court should have set aside the jury verdict because there was evidence that plaintiff sustained an injury, albeit not a serious one to qualify under the tort threshold ( Brown vs Ng).

PRACTICE TIP:  You better proof-read those proposed jury verdict sheets before submitting them to the Court.  The omission of one word ("serious") invalidated a defense verdict.
TRIVIAL DEFECT:  Plaintiff was allegedly injured when she lost her footing and fell due to a height differential between sidewalk slabs. The defendants moved for summary judgment that the allegedly defective condition was trivial as a matter of law. The appellate court found that defendants failed to establish their prima facie burden that the defect was trivial as a matter of law, and that whether a dangerous or defective condition exists is generally a question of fact for the jury. The appellate court also noted that the photographs submitted by defendants of the alleged defect failed to show whether the defect was trivial, and that there was conflicting evidence regarding the dimensions of the alleged defect ( Coriat vs Miller).
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