Summer 2018 Nash Connors, P.C. Newsletter
Your friends at Nash Connors, P.C. hope you had an enjoyable Fourth of July.  This is our summer newsletter edition.  In it, you'll find a great recap of New York State cases and some news from the office.  We've also begun a new column authored by our own Mike Dixon, who is a well-known neutral mediator and arbitrator in the area who joined the office earlier this year.

Please have a relaxing, rewarding and safe remainder to your summer.  We'll see you again after Labor Day....
News from Nash Connors, P.C.  

The firm is very pleased to announce that Andrew Kowaleski has joined us!  Andy has practiced for a number of years and has considerable experience defending trucking, auto and premises claims.  In fact, earlier this year he gave a presentation to the Negligence Committee of the Bar Association of Erie County about ride sharing and its insurance implications.  You can find his bio here.
Mike's Mediation Minute 

From the Desk of Mike Dixon:

I've been fortunate to be selected as a neutral arbitrator and mediator many times over the past 12 years. When parties choose to submit their dispute to arbitration, one decision they must make is whether to hire three neutral arbitrators for the panel or have plaintiff and defendant each chose an arbitrator and then jointly select a neutral.  I have found that selecting a panel consisting of only neutral arbitrators results in the fairest decision for all parties. Conversely, when the parties each select their own arbitrator, the neutral arbitrator often ends up negotiating a decision between plaintiff's and defendant's arbitrators.  This does not always achieve the best outcome.
Case Law Update
LABOR LAW, PT I:  Defendants were entitled to summary judgment and dismissal of plaintiff's Labor Law § 240(1) claim based on plaintiff's conduct being the sole proximate cause when (1) he placed the ladder in position; (2) the ladder did not tilt, tip, shift or move; and (3) there were other safety devices available for him to use   (Kipp v Marinus Homes, Inc., et al.).

LABOR LAW, PT II:  Plaintiff fell from a set of temporary stairs at a new home build.  Defendants moved for summary judgment because they argued the stairs were an adequate safety device and, additionally, that they were neither the GC nor a sub-contractor who controlled the work.  The appellate court held that there was an issue of fact as to whether the stairs were temporary or permanent (the latter not being an adequate safety device).  In addition, the court also found an issue of fact about whether defendant (who sold the architectural plans and other materials to the homeowner) was vicariously liable as the agent of the homeowner and had an ability to control the activity that caused plaintiff's accident ( Stiegman v Barden & Rodeson Corp., et al.).
LABOR LAW, PT III:  Defendant-homeowners were entitled to summary judgment in a Labor Law lawsuit after plaintiff fell while installing a roof on the new home.  Although the homeowners were acting as the general contractor in the construction of the home, they were protected by the homeowner exception to the Labor Law because they did not supervise or control the manner of plaintiff's work.  To that end, they submitted proof that they did not perform any construction work, provide any construction tools, were not on-site on the day of the accident and were not responsible for the safety of the roofing workers ( Bund v Higgins, et al.).  
LABOR LAW, PT IV:  The plaintiff was injured as he was moving pallets at a job site to clear a path in order to make a delivery. The appellate court affirmed summary judgment for defendant under Labor Law § 200 on the grounds that plaintiff's injury resulted solely from the manner in which plaintiff chose to make his deliveries, not from a physical defect at the job site. The appellate court also affirmed summary judgment under Labor Law § 241(6) on the grounds that the defendant did not violate an Industrial Code requiring a safe workplace ( Gargan v Palatella Saros Builders Group, Inc.).  
ASSUMPTION OF RISK:  Plaintiff was injured when she fell while ice skating.  The rink owner moved for summary judgment based on the assumption of risk doctrine.  In upholding the denial of summary judgment, the appellate court said that although falling is a risk inherent to ice skating, a negligently-maintained ice surface is not inherent to the sport (Wyzyjowski v State of New York). 
T-BONE MVA:  Plaintiff was a passenger in a daycare vehicle that had the right-of-way when a second vehicle blew through a stop sign and hit the vehicle.  She sued both drivers.  The daycare was entitled to summary judgment because its driver was driving below the speed limit, was not distracted and was in the intersection when the second driver ran the stop sign (Ball v Caesar, et al.).     

YOU WANT MORE DAYCARE LITIGATION?  Plaintiff, who was at a daycare to pick up her child, was injured when a three-year old on a bicycle knocked her over. Defendant moved for summary judgment arguing that the conduct of the three-year-old child was the sole proximate cause of the accident. By a divided court, defendant's motion was denied, based on plaintiff's argument that clutter nearby contributed to plaintiff's fall. Accordingly, there were questions of fact for the jury to decide ( Pineiro v Rush).

REAR-END MVA: Defendant A struck defendant B's stopped vehicle from behind, which caused defendant B's vehicle to strike the rear of the plaintiff's stopped vehicle. Plaintiff commenced a personal injury action against defendants A and B. Defendant B was granted summary judgment under the theory that a stopped vehicle that is struck from behind and propelled into the rear of another vehicle has a non-negligent explanation for striking that vehicle from behind ( Arellano v Richards et al.).

PRACTICE TIP:  Our office has seen motions in similar cases denied by judges who believe that Defendant A could be negligent, despite the fact that his/her vehicle had come to a stop, because s/he was too close behind plaintiff's vehicle.  Had there been more space between plaintiff and Defendant A, the argument goes, Defendant B's vehicle would not have pushed Defendant A into plaintiff.

WHILE WE'RE ON THE SUBJECT OF REAR-END MVAS:  Plaintiff, who was rear-ended while stopped at a red light, moved for summary judgment on negligence. Defense counsel argued there was a brake failure based on deposition testimony of the defendant that his brakes did not respond as quickly as they normally would when he pressed them. Coupled with the argument that plaintiff's vehicle stopped abruptly for the red-light, the appellate court affirmed denial of plaintiff's motion for summary judgment (Warner v Kain).

MUNICIPAL LIABILITY:  Plaintiff was seriously injured when the motorcycle she was a passenger on collided with a car that had pulled from a 2-way stop sign and into the intersection of the through road upon which the motorcycle was traveling.  The Court of Appeals found that it was improper to dismiss the State from the lawsuit because it had prior notice of multiple similar accidents at the same intersection, and started a study but failed to complete it or make any changes to the intersection to remedy the dangers presented by the construction of that intersection.  In finding the State's failures to be a proximate cause of the accident, the Court of Appeals rejected the State's argument that plaintiff had to identify a specific remedy and prove it would have been timely implemented and prevented the accident ( Brown v State of New York).

NOT SO FAST ON THAT SETTLEMENT! Plaintiff sustained injuries as a passenger in a one-vehicle accident. Eight days after the accident, plaintiff accepted $2,500 from the insurance company in exchange for signing a general release. Three days after signing the release, plaintiff underwent an x-ray which showed a previously undiscovered fracture of his left fibula. Suit commenced and defendant moved to dismiss the complaint pursuant to CPLR § 3211(a)(5) based on the release. Reversing the lower court's dismissal of the complaint, the appellate court noted that a distinction is drawn between unknown injuries and mistakes as to the consequences of known injuries. Here, plaintiff was told by his doctors before he signed the release that he did not have a fracture, only to discover that was wrong after the release was signed. The Court held that a release may be invalidated if the parties mistakenly believed that an injury did not exist when it was executed, but it will not be set aside for a mistake pertaining to the future course or sequelae of a known injury ( Fimbel v Vasquez).

COLLATERAL SOURCE:  A New York City police officer was injured on duty and unable to return to work in any capacity when the car she was in was struck by a City bus.  The Court of Appeals held that the officer's accident disability retirement benefits operate as an offset to a jury's award of future wage and pension losses.  In doing so, the Court found that ADR benefits operate to replace earnings during the period when the retiree could have been employed, absent the disabling injury, and then serve as pension allotments, and so a court must offset a retiree's projected ADR benefits against the jury award for both categories of economic loss (Andino v Mills, et al.).

DON'T GET TRIPPED UP!  A homeowner hired a paving contractor to pave his driveway.  The contractor hired a sub-contractor to clean up the edge of the driveway.  While the contractor was off site, the sub placed a string across the adjacent sidewalk upon which plaintiff tripped.  The contractor moved for summary judgment on the basis that it did not know about the string and, additionally, that it could not be responsible for the acts of an independent contractor.  The appellate court agreed and said that because the work did not involve a non-delegable duty, the danger was created because of the sub-contractor's inexperience and the risk was not inherent in the work being performed ( Dziedzic v Wirth, et al.).

ANOTHER SIDEWALK CASE:  Plaintiff tripped and fell on the sidewalk and alleged that the fall occurred in a depressed area surrounding a utility box that was recessed into the sidewalk. The appellate court granted defendant's motion for summary judgment, holding that the defect was an open and obvious condition that should have been readily observable to the plaintiff through the reasonable use of her senses ( Graffino v City of New York).
EMERGENCY DOCTRINE: The plaintiff bicyclist was injured when his bicycle was struck by the defendant's vehicle, which caused the plaintiff to be struck by the co-defendant's vehicle that was following behind the defendant. The co-defendant moved for summary judgment pursuant to the emergency doctrine. The appellate court found that co-defendant had established his prima facie entitlement to summary judgment on the basis that he had only seconds to react to plaintiff being struck by the first vehicle, and that he had virtually no opportunity to avoid hitting plaintiff bicyclist. However, the appellate court found that plaintiff raised a triable issue of fact by presenting evidence of conflicting statements showing that co-defendant may have contributed to the emergency by following the defendant's vehicle too closely ( Welch v Suffolk Coach, Inc., et al.).

LET'S HAVE SOME MORE EMERGENCY DOCTRINE!  Decedent/plaintiff was backing out from a median when her vehicle was struck by defendant, who claimed his actions were reasonable and prudent in the context of the emergency situation that was presented. The appellate court found questions of fact existed, however, on the applicability of the emergency doctrine based upon conflicting party and eyewitness testimony on the issue of the length of time defendant had to react and avoid impact ( Brust v McDaniel).
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