 In Heimbuch v. Grumman Corp., Elizabeth Heimbuch filed suit against Grumman Corp. -- her truck's manufacturer -- after she was injured lifting the hood.
Heimbuch alleged that the truck was missing a "gas assist" device, which facilitated opening the outer metallic panel shielding the engine. She claimed that Grumman was strictly liable for the accident "based on a manufacturing defect, design defect, and failure to warn."
When the Nassau County Supreme Court denied Grumman's motion to dismiss the case, the company appealed to the Appellate Division, Second Department.
While a manufacturer can be sued when a company releases a defective product which has caused injury, Grumman established this particular truck had the disputed piece of equipment when released.
Since the device was removed after the vehicle was manufactured, Grumman wasn't the "proximate cause" of Heimbuch's injuries -- a necessary element in a products liability case. According to the AD2, Heimbuch was responsible for her own injuries since she knew the gas assist device was missing, yet continued to lift the hood without it every day.
Did the AD2 pull a Heimbuch maneuver?
To download a copy of the Appellate Division's decision, please use this link: Heimbuch v. Grumman Corp.,
 In Cohen v. State of New York, a negligence and wrongful death case was filed against the State of New York by the families of four camp counselors who were killed by a turbulent whirlpool located in a remote and relatively inaccessible "cavern-like" area of Adirondack State Park.
After a camp counselor entered the whirlpool and struggled to stay afloat, three friends followed in an attempt to rescue him. Tragically, all four young men drowned.
When the Court of Claims denied the State's motion to dismiss the case, an appeal to the Appellate Division, Third Department, followed.
The AD3 held that a landowner needn't take preventative measures to protect people from harm when there are "open and obvious conditions that are natural geographic phenomena."
Since the camp counselors knew (or should have known) of the dangers prior to entering the water, the AD3 concluded that dismissal was appropriate.
This is openly and obviously an atrocious result.
To download a copy of the Appellate Division's decision, please use this link: Cohen v. State of New York
 In DiGiose v. Bellmore-Merrick Cent. High School Dist., Nicole DiGiose was participating in cheerleading practice at Bellmore-Merrick Central High School, when another cheerleader fell without warning and knocked DiGiose to the floor.
DiGiose alleged that the school negligently allowed the team to practice without adequate supervision and on a floor which wasn't covered with protective mats.
When the Nassau County Supreme Court refused to dismiss the case, the school appealed to the Appellate Division, Second Department, which found Nicole knew of the risks and consented to the activity.
Even when risks are apparent, and consented to, a school must still use "ordinary reasonable care" to protect its students. In this instance, Nicole's case faltered because her expert presented "speculative and conclusory opinions" as to the school's purported negligence.
Jeez, DiGiose!
 To download a copy of the Appellate Division's decision, please use this link: DiGiose v. Bellmore-Merrick Cent. High School Dist.,
 In Gardner v. Town of Tonawanda, Daniel Gardner was injured during an indoor flag football game when he slipped on a baseball glove used as a sideline marker.
When the Town of Tonawanda, owner of the recreational facility, moved to dismiss the case (on the grounds that Gardner “assumed the risk” of his injuries when he voluntarily participated in the game), the Erie County Supreme Court denied the request. On appeal, the Appellate Division, Fourth Department, reversed. Quoting prior appellate precedent, the AD4 observed: “As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation.” (Turcotte v. Fell, 68 NY2d 432). Because Gardner knew that orange cones and plastic flags were typically used as sideline markers, and that referees had the discretion to substitute those markers with other items, Gardner needed to prove that the risk of tripping on the substituted item was significantly greater than tripping on a cone or flag. As Gardner failed to demonstrate the enhanced danger of a baseball glove's use, the AD4 granted Tonawanda’s request and dismissed the case. Was that a FUMBLE? To download a copy of the Appellate Division’s decision, please use this link: Gardner v. Town of Tonawanda
 In Roberts v. Boys & Girls Republic, Inc., Linda Roberts sued to recover damages for injuries she sustained when she was hit by a baseball bat swung by a player during batting practice.
Although Roberts claimed that the hazardous nature of the sideline on-deck area was “concealed,” the New York County Supreme Court wasn't particularly persuaded by that argument and dismissed her case. On appeal, the Appellate Division, First Department, affirmed, noting that the threshold issue was whether Roberts had “assumed the risk” that resulted in her injury. Under that legal theory, voluntary participants, spectators, or bystanders of athletic or recreational activities are viewed as having accepted the repercussions of all “open and obvious" risks. Since bat swinging in an on-deck area is inherent to the game of baseball, the AD1 concluded that Roberts had "struck out" and could not pursue a recovery. You’re certainly free to take a swing at this case, should you dare. To download a copy of the Appellate Division's decision. please use this link: Roberts v. Boys & Girls Republic, Inc.
 All sports are riddled with risk of injury, and those who engage in such activities are viewed by the law as having acquiesced to the possibility of harm, particularly those injuries which are "known, apparent or reasonably foreseeable."
When it comes to skiiing or snowboarding, for example, that standard is no different. Generally, the risk of being injured by another is looked upon as "inherent" to the sport. In other words, if you're hurt, you're likely out of luck if you're looking to recover damages by way of a lawsuit. Unless, you can show that the person who caused the injury did so "intentionally" or "recklessly." In DeMasi v. Rogers, the Appellate Division, Second Department, examined the outcome of DeMasi's personal-injury lawsuit against a snowboarder who had collided with him while skiing in Massachusetts. The Dutchess County Supreme Court had granted the snowboarder's request to dismiss the case, finding that DeMasi had assumed the risk of skiing. The AD2 concluded that a hearing or trial was warranted to resolve unresolved "questions of fact." As the court observed: The distance that the plaintiff was thrown as a result of the impact, and the nature and extent of the injuries incurred, raise at least a question of fact as to whether the defendant's speed in the vicinity and overall conduct was reckless ... On this basis, the defendant's motion for summary judgment should have been denied.
Apparently, this particular "board bro" was "horndoggin'" or "hucking too much gander." For a copy of the Appellate Division's decision, please use this link: DeMasi v. Rogers
 As Susan Ballan glided across the ice at a local ice-skating rink she encountered an unexpected obstacle and suffered a serious injury after falling and breaking her arm.
The accident was precipitated by a member of a group of “unruly [and] unsupervised” boys, between the ages of 6 and 10, who threw himself onto the ice directly in front of Ballan, in an attempt to topple another member of the group. Unable to maneuver out of the way, Ballan stumbled over the child and fell onto the ice. Ballan later filed suit alleging that Arena Management (AM) breached a duty to monitor its patrons and deter their eckless conduct. When AM moved to dismiss the case, the Saratoga County Supreme Court denied the request finding issues of fact which warranted a hearing or trial. On appeal, the Appellate Division, Third Department, concurred with that outcome. While one assumes the risk of accidentally colliding with another while in the rink, a skater does not necessarily assume the risk of others’ reckless or intentional misconduct. As there were questions whether AM adequately supervised and controlled its patrons and whether Ballan assumed the risk of injury by skating in the presence of "infants" who clearly lacked any regard for the safety or well-being of those around them, the AD3 was of the opinion that summary judgment was appropriately denied. And they say hockey players have all the fun. For a copy of the Appellate Division's decision, please use this link: Ballan v. Arena Mgt. Group, LLC
 Cheryl A. Dalton was thrown from a horse named Patches and was injured in the fall. In a lawsuit filed against the riding facility, Adirondack Saddle Tours, Inc., (ASTI), Dalton alleged "strict liability premised on vicious propensities of the horse, common-law negligence and breach of contract."
When ASTI moved for the case's dismissal, the Schenectady County Supreme Court only dismissed the lawsuit's "vicious propensity" component. On appeal, the Appellate Division, Third Department, modified the outcome by ending the entire case. According to the AD3, anyone riding a horse assumes the risks that are normally associated with that activity, which would include the animal's sudden or unexpected movements that could lead to a rider being injured. Since the horse did not suffer from any "physical defect" which contributed to the fall and was not known to be "unruly" or "dangerous," the AD3 was of the opinion that Dalton's case about Patches had some irreparable holes. Here's how the AD3 put it: In our view, the risk that a horse might suddenly break into a run is one inherent in the activity of horseback riding. Further, in this case, the horse's movement was not entirely unexpected as plaintiff had urged the horse to catch up with the other horses. Had plaintiff not appreciated the risk of Patches running when she first mounted, she certainly must have become aware of that risk after the horse ran several times to catch up during the course of the trail ride ... Notably, plaintiff never expressed concern or sought assistance on these occasions. Under these circumstances, defendant's motion for summary judgment on the common-law negligence cause of action should have been granted because plaintiff's injuries were caused by an event inherent in the activity to which she voluntarily consented.
"A horse is a horse, of course, of course ...." For a copy of the Appellate Division's decision, please use this link: Dalton v. Adirondack Saddle Tours, Inc.
Richard and Joanna Ham sued the City of Syracuse and one of its police officers for negligence. Apparently, Officer Nelson Aquino and a partner were responding to an assist call placed by a fellow officer when they approached a "blind" intersection with "extremely limited sight lines." Aquino testified at a deposition that, on the day of the accident in question, when he encountered a red light, he "inched" through the intersection. Aquino's partner testified that Aquino "slowed down to ... [a] creep," so that he could get a better perspective, when the vehicle collided with the Hams. (Neither the police vehicle's emergency lights nor siren was triggered.) Under current law, there is no liability for injuries resulting from a response to an emergency call, unless the officer acted "recklessly." In other words, there must be an intentional and unreasonable "'disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow." And to compound matters just a bit further, there must be a "conscious indifference to the outcome.'" Faced with such a pretty high standard, the City moved to dismiss the Hams' case, alleging that under the given circumstances the officer could not be found "reckless" (or the City liable) as a matter of law. Interestingly, the Onondaga County Supreme Court disagreed, finding there were "issues of fact" as to whether Aquino operated the vehicle "in reckless disregard for the safety of others." On appeal, the Appellate Division, Fourth Department, affirmed. The appellate court was also of the opinion that a trial was necessary to determine whether Aquino acted appropriately by "entering a blind intersection against the red traffic light at a questionable speed without fist activating his emergency lights and siren ...." 
Guess who's squealing now? For a copy of the Appellate Division's decision, please use the following link: Ham v. City of Syracuse
Punitive damages are designed to punish a party to a case and serve as a disincentive for the miscreant to engage in the proscribed conduct in the future. When such awards are found to be excessive, our nation’s highest court has reined them in, characterizing them as “takings” of property without due process, a violation of the Fourteenth Amendment. The United States Constitution’s “Due Process Clause” requires that certain standards of fairness be applied to all legal proceedings. For example, a defendant must be given adequate notice of a matter’s pendency so that the party can be afforded an opportunity to interpose an appropriate defense. Along those same lines, punitive damages may become unconstitutional if they bear no relation to the offense committed, or, if the defendant was denied advance notice that the punishment would be so substantial. Disproportionately large awards can also impact interstate commerce and allow one state to regulate an industry in another state; an outcome which our nation’s highest court has sought to discourage. When it has reviewed these kind of awards, the United States Supreme Court has substantially reduced recoveries found to be “grossly excessive,” but has afforded no clear indication as to how that impermissible level is triggered nor provided a precise formula to be utilized.* In Phillip Morris v. Williams, the Estate of Jesse Williams sued the cigarette manufacturer after Williams, a heavy Marlboro smoker, died. The jury found that Williams’s death was caused by smoking, that he believed the product was safe, and, that the manufacturer knowingly and falsely induced him to believe in the product’s safety. The jury awarded $821,000 in compensatory damages and a staggering $79.5 million in punitive damages for harm done to him and to other Marlboro smokers in Oregon. Philip Morris hoped the U.S. Supreme Court would find the award -- almost 100 times the compensatory damage component -- to be excessive. Philip Morris argued that allowing juries to consider the harm done to third parties when determining the size of such awards violated due process. The manufacturer further asserted that it was incapable of preparing a defense to claims held by people who had not actively participated in the litigation. In this case, while Mr. Williams may not have known cigarettes were dangerous, Philip Morris was foreclosed the ability to prove whether other Marlboro smokers were aware of those dangers and knowingly accepted the risk. Williams’s representatives argued that, in order to assess the reprehensibility of the defendant’s actions, juries must be allowed to consider the harm caused to others. After all, doesn’t conduct become more heinous if Philip Morris was not only deceiving Mr. Williams, but countless thousands of other citizens? The U.S. Supreme Court agreed with both camps. In the majority opinion, Justice Breyer guided that while juries could not directly consider the harm the defendant’s action caused to others, such evidence could be introduced to establish the degree of reprehensibility.** Although the Court declined to pass on whether the award in this case was excessive, the dispute was remanded to the trial court with instructions that the jury consider the harm done to third parties only for purposes of determining the reprehensibility of Philip Morris’s conduct. Were we to venture a guess, we think it's a safe bet that a large chunk of that $79 million just went up in smoke. 
For a copy of the Supreme Court's decision in Philip Morris v. Williams, please use the following link: http://www.supremecourtus.gov/opinions/06pdf/05-1256.pdf.
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*Some U.S. Supreme Court cases have suggested that around ten times the amount of compensatory damages suffered by a party would likely be an acceptable parameter. **Confused? As Justice Stevens, noted in his dissent, “The nuance eludes me.” Also confusing is that Justices Thomas and Scalia, the most conservative members of the Court, joined Justice Ginsburg’s dissent, one of the most liberal justices on the Court.
Boys will be boys. Leave a group a high school students unsupervised in a school cafeteria and a food fight is inevitable. But is the educational institution liable for any injuries that occur, particularly if there has been prior notice of this type of conduct? That was the question reviewed by the courts in the case of Schirmer v. Board of Education of Spencerport Center School District. In that particular dispute, a young male teen--Schirmer--was seriously injured when accidentally struck in the eye with a food object during the course of an "unsupervised 'honors' study hall." We are informed that two other students--Mannix and DiRoma--were propelling "beef jerky" (a dehydrated meat) at one another when the injury occurred. (DiRoma was the jerky thrower, Mannix was the intended jerky recipient, while Schirmer was the jerky victim.) While the Monroe County Supreme Court dismissed the injured boy's case in its entirey, the Appellate Division, Fourth Department, did not completely agree with that outcome and reinstated the lawsuit. Since the appellate court was of the opinion that "jerky throwing" was not an "inherently dangerous" activity, it upheld the dismissal against young Mannix since he was only the intended recipient of the food product (and did not cause the injury). The school, on the other hand, was skewered for failing to adequately supervise its young charges. Here was the AD's take on the case: It is undisputed that the two students were throwing the beef jerky for fun, and that plaintiff's son was not the intended target. It is also undisputed that Mannix's son had the requisite "honors" pass to attend the study hall, and that DiRoma's son did not, and therefore that DiRoma's son should not have been present in the cafeteria. We conclude that the activity engaged in by the two students was not "so inherently dangerous that mere participation therein [was] negligence" ... Thus, Supreme Court properly granted the motion of Mannix seeking summary judgment dismissing the amended complaint against him.
The court erred, however, in granting the motion of the Board of Education of the Spencerport Central School District (defendant) seeking summary judgment dismissing the amended complaint against it, and we therefore modify the order accordingly. Defendant asserted that it was not negligent in its supervision of the students attending the honors study hall, and that, in any event, the action of the students involved was the sole proximate cause of the injuries sustained by plaintiff's son. We conclude, however, that defendant failed to establish its entitlement to judgment as a matter of law ... The evidence submitted by defendant in support of its motion established that there were at times 50 or more students attending the honors study hall; the study hall was not supervised by an adult; the study hall was only periodically monitored by an adult to determine whether there were students present who did not have the requisite "honors" pass; defendant had notice of three prior incidents wherein objects were thrown by students attending the study hall without the requisite "honors" pass; and defendant had notice of one prior incident wherein a student was injured by another student while attending the unsupervised study hall. That evidence raises triable issues of fact whether defendant adequately supervised the students attending the study hall and whether the injuries sustained by plaintiff's son were a foreseeable result of the "absence of adequate supervision" ....
No adult supervision, despite a history of prior incidents? Now how jerky was that? For a copy of the Appellate Division's decision in Schirmer v. Board of Educ. of Spencerport Cent. School Dist., please click on the following link: http://www.courts.state.ny.us/reporter/3dseries/2006/2006_08574.htm For a copy of a "jerky" fact sheet released by the United States Department of Agriculture, please click on the following link: http://www.fsis.usda.gov/Fact_Sheets/jerky_and_food_safety/index.asp
Continue reading "THEY AIN'T DUMB, THEY'Z JUST JERKY!" »
You've seen these ads. They arrive via e-mail or can be found in some popular magazines and read something like this: If the size of your penis torments you, we have the solution...[o]ur specialized doctors will widen or make bigger the penis ... don't feel frustrated or ashamed of intimacy because your problem now has a solution. Many are unaware that such an augmentation procedure is riddled with risk. The American Urological Association (AUA) guides as follows: The American Urological Association ... considers injection of fat cells for increasing penile girth (width) to be a procedure which has not been shown to be safe or effective.
The AUA also considers the cutting of the suspensory ligament of the penis for increasing penile length in adults to be a procedure that has not been shown to be safe or effective. Apparently, the Plaintiff in Corcino v. Filstein, was unfamiliar with these risks, injured while undergoing penile-augmentation surgery, and suffered "permanent injury." He later commenced a lawsuit in the New York County Supreme Court alleging medical malpractice, lack of informed consent, deceptive business practices, and loss of consortium (i.e., inability to have sexual relations with one's spouse).
When the defendant moved for summary judgment--a disposition of the case based solely on the papers presented by the parties--the Supreme Court shafted the defendant's request in its entirety, finding that a formal hearing or trial was needed to address the issues in dispute. On appeal, the Appellate Division, First Department, disagreed with that part of the lower court's order which refused to dismiss the deceptive-business practices claim. The governing statute--General Business Law section 349--requires that the wrongdoer engage in "consumer-oriented conduct that was materially deceptive or misleading, causing injury ...." Since the advertisement did not guarantee results, offer "misleading statistics on success rates," or assert that the procedure was risk-free, the appellate court believed that that part of Plaintiff's case that could not be allowed to continue.
While a surgery-related release form had been signed by the Plaintiff, an expert's affidavit raised questions as to whether the doctor complied with his "medical obligations under the circumstances," and whether Plaintiff had been fully apprised of the procedure's complications and risks. Additionally, since "cutting the suspensory ligament and grafting the fat around the patient's penis" were "inherently risky," and deviated from "acceptable medical practice," the appellate court believed that the defendant's purported malpractice deserved further inquiry.
While the outcome of the appeal was certainly favorable to the Plaintiff, the victory strikes us as Pyrrhic.
For a copy of the Appellate Division's decision in Corcino v. Filstein, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_06125.htm
To be directed to the AUA's website, please click on the following link:
http://www.urologyhealth.org/search/index.cfm?topic=330&search=penis&searchtype=and
Several month ago, we analyzed a negligence claim made by Nicole Ziegelmeyer, a two-time Olympic Speed Skating medal winner. As we reported back on July 17, 2006, [Olympic Skater Denied Thrill of Victory], Ms. Ziegelmeyer was preparing for the Nagano Winter Games at a skating facility operated by the United States Olympic Committee (USOC) in Lake Placid, New York, when she fell, hit the fiberglass boards surrounding the rink, and incurred serious spinal injuries.
In her lawsuit, Ziegelmeyer claimed entitlement to compensation on the ground that the USOC--and others--had failed to properly install protective padding. However, the Green County Supreme Court did not agree and granted the USOC's motion to dismiss the skater's case, finding that Ms. Ziegelmeyer had assumed the risk of injury by engaging in the sport. After the Appellate Division, Third Department, affirmed the dismissal on appeal, Ziegelmeyer then perfected her case to the New York State Court of Appeals.
For those of you who did not catch our original post, here's how we gauged Ms. Ziegelmeyer's chances of success: While Ms. Ziegelmeyer's attorney has indicated an intention to appeal to the state's highest court, we do not hold out much hope for a favorable outcome.... Sure enough, folks, we called it right!
Less than a week ago, the Court of Appeals cast its vote against the Olympian. The slip opinion consists of only four sentences and reads as follows: The order of the Appellate Division should be affirmed, with costs.
Plaintiff, a short-track Olympic speedskater, was injured when she fell on the ice during practice and hit the boards surrounding the rink. Although safety pads had been placed on the boards, plaintiff fell in such a way that her feet lifted the pads, causing her hip to strike the boards directly. Because plaintiff was aware of the exact manner in which the safety pads had been set up on the day of her accident, the Appellate Division correctly held that plaintiff had assumed the risk of her injuries, and properly affirmed the Supreme Court order granting summary judgment dismissing the complaint.... And with that, the court skirted the skater's personal-injury claim and thwarted any possibility of a recovery. They call that a "triple slam," no?
For a copy of the Court of Appeals's decision in Ziegelmeyer v. United States Olympic Committee, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_08644.htm
For a copy of the Appellate Division's decision in this case, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03130.htm
Many of us would be taken aback if a "lady" were to bite us on the shoulder. So, it should come as no surprise that Marilyn G. Tilson was particularly flummoxed by the hostile reaction she received one summer day.
On June 25, 2000, Ms. Tilson--a "recreational horseback rider" with thirty years of experience--visited New Horizon Stables and was assigned to ride "Lady," a horse owned by Larry and Kim Russo. As Tilson approached the animal, Lady reportedly bolted toward the prospective rider and bit her on the left shoulder.
Tilson filed a negligence case against the Russos in the Albany County Supreme Court, seeking compensation for her injuries. When the defendants moved to dismiss the complaint--on the grounds that Tilson was aware of the perils associated with horseback riding, assumed the risks inherent in that activity, and, as a result, defendants were not liable for any injury or damages sustained--the Supreme Court agreed and ended the case. On appeal, the Appellate Division, Third Department, affirmed. In its decision, the appellate court cited to a series of cases which sealed the litgation's fate. Noting that horses are "unpredictable" and prone to "sudden and unintended actions," and that being bitten, bumped, kicked, struck, and thrown are all scenarios that a rider should anticipate, Tilston was deemed to have consented to any injury-causing events.
While Tilson's attorneys also argued that negligence liability attached due to Lady's "vicious propensity," in that the horse had apparently bitten others, the appellate court found that legal doctrine did not apply to a sporting event where a party knowingly assumes the activity's attendant risks.*
Sounds like pure horse-sense to us.
For a copy of the Appellate Division's decision in Tilson v. Russo, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_05070.htm
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*For our blog posts on "vicious propensities," please see the index to your right. Posts have included: Here's an Oreo that Will Bite Back, The Bard and the Bull, and Beware of Dog: Biting the Hand that Doesn't Feed You
Fifteen-year-old Benjamin Gibbud was injured while engaged in "horseplay" with his 21-year-old cabin counselor. Apparently, Gibbud responded to a fellow camper's prompt to "get" the counselor (who was interacting with another child). Gibbud jumped the counselor from behind, grabbing him in a bear hug and pinning the counselor's arms. The counselor reacted by abruptly shrugging Gibbud off, and as the counselor pivoted to identify the assailant, the child slid off the counselor's back, fell to the floor, and fractured an ankle.
Gibbud and his mother later filed suit against Camp Shane, Inc., in the Sullivan County Supreme Court, alleging negligent supervision. Finding no liability, the Supreme Court dismissed the case. On appeal, the Appellate Division, Third Department, affirmed noting that "a parent, teacher or other person entrusted with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline" and held Gibbud responsible for "his own impulsive and reckless act of grabbing [the counselor] from behind...."
Next summer, the kid might want to try riding a real horse.
For a copy of the Appellate Division's decision in Gibbud v. Camp Shane, Inc., please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_05075.htm
Finding its roots in a statute originally enacted back in 1885, Labor Law section 240 seeks to protect the safety of workers who use a scaffold, hoist, stay, ladder or other equipment or mechanical contrivance to erect, demolish, repair, alter, paint, clean, or point a building or structure (other than certain one- or two-family homes).*
Although some have interpreted the law as imposing "strict" or "absolute" liability in the event of injury, the New York State Court of Appeals has repeatedly expressed its disagreement with that analysis. In December 2003, for example, the court noted in Blake v. Neighborhood Hous. Servs. of N.Y. City, as follows: Given the varying meanings of strict (or absolute) liability...it is not surprising that the concept has generated a good deal of litigation under Labor Law section 240 (1). The terms may have given rise to the mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party. That is not the law, and we have never held or suggested otherwise. As we stated...'[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law section 240 (1).' Also, the Appellate Division had recognized as much...stating: 'the mere fact that [a plaintiff] fell off the scaffolding surface is insufficient, in and of itself, to establish that the device did not provide proper protection'....
Put differently, an accident alone does not establish a Labor Law section 240 (1) violation or causation. The application of this law was recently revisited by the Court of Appeals in Robinson v. East Medical Center, LP. In this 2006 decision, Douglas W. Robinson--a journeyman plumber--was installing pipe hanger systems at a job site in Fayetteville, New York, and selected a six-foot ladder when an eight-foot ladder would have been more appropriate for the task. During the course of Robinson's work, the ladder shifted causing him to injure his back as he repositioned the equipment back into place with one of his feet.
When Robinson later sued alleging various Labor Law violations, the Appellate Division, Fourth Department, dismissed the case finding that, since he did not fall, Robinson "did not meet his initial burden of demonstrating his entitlement to recovery under the statute as a matter of law." On appeal, the Court of Appeals affirmed the dismissal (but for reasons at odds with those cited in the Appellate Division's decision). As the state's highest court observed, in order for a statutory violation to be triggered, an owner or contractor must fail to provide a worker with adequate safety equipment and that omission must have led to the injuries sustained. No violation of the law can be found "if adequate safety devices are available at the job site, but the worker either does not use them or misuses them."
Ultimately, Mr. Robinson's decision, to use the wrong ladder, operated to his detriment. As the court concluded in the final sentence of its opinion: Plaintiff's own negligent actions--choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder's top cap in order to reach the work--were, as a matter of law, the sole proximate cause of his injuries. Clearly, Robinson reinforces the proposition that to achieve greater heights, one needs to be appropriately equipped.
For a copy of the Court of Appeals's 2003 decision in Blake v. Neighborhood Hous. Servs. of N.Y. City, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2003/2003_19690.htm
For a copy of the Court of Appeals's 2006 decision in Robinson v. East Medical Center, LP, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_02457.htm
For a copy of the Appellate Division's decision in the Robinson case, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2005/2005_03380.htm
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*Labor Law section 240(1), "Scaffolding and other devices for use of employees," provides as follows:
1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. No liability pursuant to this subdivision for the failure to provide protection to a person so employed shall be imposed on professional engineers as provided for in article one hundred forty-five of the education law, architects as provided for in article one hundred forty-seven of such law or landscape architects as provided for in article one hundred forty-eight of such law who do not direct or control the work for activities other than planning and design. This exception shall not diminish or extinguish any liability of professional engineers or architects or landscape architects arising under the common law or any other provision of law.
To review the entire law, click on the following link and select the statute identified as Labor Law ("LAB"):
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS
In 1997, Nicole Ziegelmeyer, a two-time Olympic medal winner, was preparing for the Nagano Winter Games at a skating facility operated by the United States Olympic Committee (USOC) in Lake Placid, New York. During the course of a practice session, Ms. Ziegelmeyer fell and hit the fiberglass boards surrounding the rink in such a manner that she incurred severe spinal injuries.
In a lawsuit commenced in the Greene County Supreme Court, Ms. Ziegelmeyer claimed that the United State Olympic Committee and other parties were negligent for failing to properly install protective pads over the fiberglass boards. The Supreme Court granted the USOC's motion to dismiss the skater's case, finding that Ms. Ziegelmeyer had assumed the risk of her injury. On appeal, the Appellate Division, Third Department, affirmed and reiterated the standards applicable to all athletes: An athlete who voluntarily participates in a sport "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation"...The "duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty"..."[I]t is not necessary that the injured plaintiff foresee the exact manner in which...her injury occurred"...Moreover, "a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport".... In a dissent, the Honorable Anthony V. Cardona, expressed dissatisfaction with the outcome, citing to various breaches of safety standards promulgated by the International Skating Union and "Special Regulations for Speed Skating and Short Track Speed Skating." Since the protective padding required by these regulations were not properly attached or installed, the dissent concluded there were "issues of fact" as to whether the USOC met is duty of making the indoor rink "as safe as it appeared to be" and whether the improper installation of the protective padding created a "dangerous condition 'over and above the usual dangers that are inherent in the sport'". In other words, the skater's claim should have been determined by a judge or jury, after trial. We agree.
While Ms. Ziegelmeyer's attorney has indicated an intention to appeal to the state's highest court, we do not hold out much hope for a favorable outcome; particularly, in light of the Court's recent decision in the Metropolitan Opera case. (A case we examined on April 17, 2006.) As you will recall, the Court of Appeals relieved the opera house of negligence liability--despite the violation of internal operating standards--since no cognizable duty of care had been breached. We fear a similar fate may befall Ms. Ziegelmeyer's claim.
Oh, the agony of defeat ....
For a copy of the Appellate Division's decision in Ziegelmeyer v. United States Olympic Committee, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03130.htm
For our analysis of the Metropolitan Opera case, please click on the following link:
http://www.nyrealestatelawblog.com/2006/04/sidestepping_patrons_or_duties.html
[Note: Ms. Ziegelmeyer and her husband are now operating a painting contracting business outside of St. Louis, Missouri.]
Here's a dirty secret: Going to a hospital could kill you.
According to published reports, hospital-acquired infections are the fourth largest killer in the United States, causing as many deaths as AIDS, breast cancer and auto accidents combined. One out of every twenty hospital patients suffers from an infection; impacting some two million Americans and causing over 100,000 deaths a year.
Within that framework, the outcome of a recent case struck us as unfair and contrary to the public interest. In Spina v. Jack D. Weiler Hospital of the Albert Einstein College of Medicine, Theresa Spina claims to have been exposed to tuberculosis while visiting her mother at a medical facility operated by the Defendants. Ms. Spina alleged in her complaint that the hospital was "negligent" for failing to warn patients and visitors of the exposure risk and for failing to isolate the patient who was suffering from the condition in a "timely manner."
When the Defendants moved to dismiss Ms. Spina's case, that effort was rebuffed by the Bronx County Supreme Court. On appeal, the Appellate Division, First Department, reversed citing the absence of a duty of care to non-patients "unless the physician's treatment of a patient is the cause of the injury to the non-patient...."
Low-cost safety precautions--like posted warning signs--were minimally warranted. And, while it is common knowledge that hospitals treat the sick and house those that carry communicable diseases, is it not clear that Ms. Spina knowingly assumed the risk that she would contract tuberculosis (or other disease) when she entered the Defendants' facility. A judge or jury should have been permitted to investigate whether appropriate safeguards should have been implemented.
The uncontrolled spread of contagious diseases furthers no public purpose. And, as nieve or as cliche as it may sound, we believe that medical facilities and their professionals owe a duty to "do no harm," and to protect the interests of the sick and healthy alike.
For a copy of the Appellate Division's decision in the Spina v. Jack D. Weiler Hosp. of Albert Einstein Coll. of Medicine case, please click on the following link:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_02807.htm
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