October 2018 Nash Connors, P.C. Newsletter

It's that time again! I have no doubt that someone really famous once said that the best three things about fall are pumpkin picking, the return of football and the Nash Connors, P.C. newsletter. Please enjoy some news from the office, a summary of a recent study highlighting the similarities between "maltreatment" of children and lead paint poisoning deficits and a great summary of appellate decisions from New York State.

News from Nash Connors, P.C.

Buffalo Business First released its list of Western New York Legal Elite, which profiles fewer than 150 lawyers in the area. We're quite happy to say that the list includes Jim Nash and Dan Connors!

Nash Connors, P.C. was pleased to sponsor this year's BISON Fund luncheon. The BISON Fund, for whom Jim Nash serves on the Board of Trustees, raises over $2 million dollars every year for scholarships.

The firm was also proud to sponsor the Allentown Fall Fest, a family-friendly event that took place just a few blocks from our office.

Maltreatment vs. Lead Paint Exposure

Researchers examined the effect of "maltreatment" of children during childhood (this included neglect, abuse and financial stress) between 1988 and 2016, and discovered similarities with lead paint poisoning deficits. In particular, the study revealed a direct link between these types of "maltreatment" and difficulties children had in adolescence, including educational deficits, depression, substance abuse, earlier entry into parenthood, poorer nutritional health and financial / economic limitations / stresses.

While this study was not conducted in the context of a "lead poisoning" evaluation, the effects noted from child "maltreatment" closely mirror the damages associated with lead poisoning that are routinely claimed by plaintiffs' attorneys. This research provides the defense, on a case-by-case basis, with another tool to attack and cast doubt on these types of damages claims by pointing to the real effects of the types of challenges socioeconomically disadvantaged children and their families face. Feel free to contact Jon Cox if you have any questions about this study.

Case Law Update

IN SUM, YOU DON'T GET THE WHOLE FILE... An appellate court ruled that a trial court abused its discretion by ordering a SUM carrier to produce its entire claim file to plaintiff. Instead, the court agreed with the carrier that it should be allowed to prepare a privilege log and not produce documents prepared after commencement of the action ( Rickard vs NYCM).

DEFENDANT TRIED TO SHRED PLAINTIFF'S CASE: Plaintiff was injured when a snowboarder hit him. The snowboarder raised assumption of the risk as a defense to the lawsuit. The appellate court disagreed because although plaintiff had been skiing for 40 years, he submitted an affidavit of an ER physician who also was a member of the National Ski Patrol. This expert said that plaintiff's injuries were consistent with the snowboarder traveling "at an extreme high rate of speed," thereby creating a question of fact ( Sopkovich vs Smith).

NON-NEGLIGENT EXCUSE: An appellate court affirmed summary judgment in favor of plaintiff in a rear-end accident despite defendant's claim of a sudden stop. The appellate court reasoned that defendant was in heavy, stop-and-go traffic and was only following 20 feet behind plaintiff's vehicle. The court noted that these traffic conditions and defendant's failure to maintain a reasonable distance behind plaintiff's vehicle were insufficient to raise a non-negligent explanation for the collision ( Arslan vs Costello).

BUT IT WAS A NON-NEGLIGENT EXCUSE HERE: An appellate court said that plaintiff was not entitled to summary judgment in a rear-end accident because defendant argued that there was a sudden stop at a green light and he could not avoid the accident in time ( Macri vs Kotrys).

AND HERE'S ANOTHER NON-NEGLIGENT EXCUSE: Plaintiff was stopped at a red light when defendant merged from the adjacent lane into plaintiff's lane and rear-ended him. Defendant claimed that there was a "whiteout" because of blowing snow, although plaintiff testified that the weather was "fine." The appellate court found a question of fact on whether the emergency doctrine applied ( Chwojdak vs Schunk).

WHITEOUT WIPEOUT: Plaintiff alleged personal injuries resulting from a fall on snow and ice that was located on an exterior stairway. Defendants moved for summary judgment on the basis that there was a "storm-in-progress" and that defendants did not have reasonable time to clear the steps. The appellate court noted that plaintiff's argument that the snow and ice was caused by a nearby awning was speculative and that defendants showed that they did not have a reasonable opportunity to remove the snow and ice (Autieri vs Longi).

LABOR LAW: Plaintiff was injured at work while using a telescopic lift owned by the defendant, but borrowed without its permission. Defendant moved for summary judgment to dismiss the negligence and Labor Law § 200 claims on the basis that it was not an owner, contractor, or agent with regard to plaintiff's work. The appellate court granted defendant's motion for summary judgment because defendant was not within this class. However, the court denied defendant's motion for summary judgment on the common law negligence claims since defendant failed to establish, as the lift's owner, that it was not in a defective or dangerous condition ( Hill vs Mid Island Steel Corp.).

THE ROOT CAUSE OF THE ACCIDENT: Plaintiff was injured when he tripped on an exposed tree root near a picnic bench at the park owned by defendant. The appellate court noted that although a landowner has a duty to exercise reasonable care in keeping the property in a safe condition, a landowner does not have to protect or warn against open and obvious conditions that are inherent or incidental to the nature of the property. The court held that the exposed tree root was an open and obvious condition and not inherently dangerous as a matter of law ( Ibragimov vs Town of North Hempstead ).

NEGLIGENT PLAINTIFF ENTITLED TO SUMMARY JUDGMENT: Plaintiff was injured in a motor vehicle accident where she had the right of way at an intersection. In opposition to plaintiff's summary judgment motion on the issue of negligence, defendant argued that plaintiff was required to show that she was not negligent in the happening of the accident. The appellate court rejected this argument under the Court of Appeals recent decision in Rodriguez vs City of New York, which holds that plaintiff is not required to demonstrate an absence of negligence to obtain summary judgment ( Mastricova vs Ruderman).

PRACTICE TIP : You may recall reading about the Rodriguez case in our May 2018 newsletter. Under this relatively-new case law, plaintiffs may be granted summary judgment without showing a lack of comparative negligence. This could be bad news for defendants, as a finding of liability will start interest running (although note that in some departments within New York State, auto accident plaintiffs bear the additional burden of establishing serious injury in order to be entitled to pre-judgment interest).

CUJO'S CAUSING TROUBLE: A postal worker was injured after being attacked by defendant's dog that bit him and caused him to trip and fall on bags of mulch in the defendant's driveway. Defendant argued that she had no knowledge of the dog previously biting, jumping aggressively or acting in a dangerous manner. Plaintiff responded by arguing that the dog was nicknamed "Cujo" at the post office and that a Dog/Animal Warning Card was issued to postal carriers who delivered mail to defendant's residence. The appellate court therefore found an issue of fact on the issue of notice ( Young vs Grizanti).

MUNICIPAL LIABILITY: An appellate court found that a Notice of Claim that stated plaintiff fell into a trench located in a bike lane on a particular road, but did not identify the exact street address, was sufficient notice to the municipality ( Ruark vs City of Glen Cove).

MUNICIPAL LIABILITY, PT II: Plaintiff broke her ankle when she tripped on a deformed sidewalk in the City of Syracuse. In overturning the lower court's decision, the appellate court held that the munipality met its initial burden on the motion by establishing that it did not receive prior written notice of the allegedly defective sidewalk as required by Syracuse City Charter. In addition, the appellate court noted that constructive notice is not an exception to the prior written notice requirement, and that plaintiff's assertion that the City created the condition was based on mere speculation ( Hernandez vs City of Syracuse).

MUNICIPAL LIABILITY, PT III: A police officer was responding to a call with his emergency lights and sirens activated when he slowed his patrol vehicle and then entered the intersection against a red light . As the police officer entered the intersection against the red light, plaintiff, who had a green light, struck the side of the patrol vehicle. The appellate court dismissed plaintiff's claims against the officer and the City of Rochester , holding that an officer engaged in such conduct cannot be held liable unless his or her conduct demonstrates a reckless disregard for the safety of others ( Martinez vs City of Rochester, et al.).

ARBITRATION AWARD: The arbitrator in a rear-end accident determined that defendant's negligence was the sole cause of the accident, but that plaintiff failed to establish that such negligence was a substantial factor in causing plaintiff to sustain a "serious injury" pursuant to Insurance Law § 5102 (d). In overturning the lower court's decision to vacate that arbitration award, the appellate court held that judicial review of arbitration awards is extremely limited and a court may vacate an arbitration award if it finds that the rights of a party were prejudiced when "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made". Furthermore, an arbitrator exceeds his or her power where the award is "irrational" or "there is no proof whatever to justify the award" ( Whitney vs Perrotti).

LAWSUIT "WASHED" AWAY: While shopping, plaintiff was attempting to grab a bottle of body wash from a high shelf when the bottle fell and injured him. Plaintiff sued, claiming the store was negligent in the way it stacked product on the shelf. Among other things, plaintiff claimed the bottles were stacked horizontally on the shelf, creating a dangerous condition. While providing an excellent recitation of New York premises liability law, the court held that plaintiff's claim that the condition was created by an affirmative act of the defendant, as opposed to being caused by another customer for example, was "speculation and conjecture" and not supported by any record evidence. Burden vs Wal-Mart Stores E., 2018 U.S. Dist. LEXIS 168727 (S.D.N.Y. September 28, 2018).

YOU'RE IN TROUBLE, PLAINTIFF: Plaintiff slipped on a puddle of dog urine in the aisle of a pet store and brought an action in federal court based upon diversity jurisdiction. Key to the court's decision granting summary judgment to the defendant was the distinction between federal law and New York state law regarding a moving party's burden of proof. That is, under New York state law, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie case that it neither created the hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it. Conversely, under federal law, a moving defendant need not make any affirmative prima facie showing and may discharge its burden of proof merely by pointing to an absence of evidence to support an essential element of the plaintiff's claim. Here, defendant discharged its initial burden by pointing to the absence of any proof as to how the puddle got there (although it seems obvious) and, more importantly, the absence of any proof on actual notice or constructive notice, since there was no evidence regarding the length of time that the puddle had been present. Lyman vs Petsmart, Inc., 2018 U.S. Dist. LEXIS 162424 (S.D.N.Y. September 21, 2018).

Nash Connors, P.C. | [email protected] | (716) 842-4121 | nashconnors.com

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