Res ipsa loquitur is a legal doctrine that holds that a defendant may be presumed negligent if it had exclusive control of the instrumentality of the injury, if the incident would not occur in the absence of negligence, and the plaintiff did not contribute to the accident.

garage doorA New York court recently considered whether res ipsa loquitur applied in Bonacci v Brewster Serv. Sta., Inc.  The plaintiff was injured when his vehicle fell off a lift at a service station.  The plaintiff was in the bay of the garage with a service station employee, and both men were injured when the vehicle fell.

The injured man and his wife filed suit against the service station and moved for summary judgment on the ground that res ipsa loquitur applied.  The plaintiff pointed to testimony by the defendant’s principal that the accident could not have occurred in the absence of negligence and that the plaintiff’s presence in the bay could not have caused the incident.  The principal did not see the accident but was working in an office nearby and heard the crash.  He testified that the vehicle had been “set up wrong” due to “operator error” or mechanical failure.

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Generally, property owners are not liable for unforeseeable and unexpected assaults on their premises.  They may, however, have a duty if the risk of harm is foreseeable.  Additionally, while landowners generally do not have a duty to control the conduct of a third party, they may have a duty when they are reasonably aware that the conduct needs to be controlled, and they have an opportunity to control it.  The Supreme Court in New York County recently considered whether a drug and alcohol rehabilitation center could be held liable for an alleged assault committed by one of its residents in Smith v. Arms Acres.

hallwayThe defendant was a drug and alcohol rehabilitation center.  At the time of his injury, the plaintiff was a resident in the detox unit of the defendant’s facility.  The plaintiff alleged that he was injured when a woman sitting on the floor in a hallway grabbed his ankle while he was being escorted through the hallway, causing him to fall.  The plaintiff testified that he had never seen or talked to this woman before.

The defendant’s associate executive director testified that the woman was not a detox resident but was likely in that unit because of overcrowding in other areas.  The facility’s rules prohibit residents from loitering in the hallways, but the associate executive director testified that the residents were generally allowed to do so if they did not get too loud.

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Landlords have a duty to maintain their property in a reasonably safe condition.  A landlord may be liable for injuries resulting from its failure to maintain the property in a reasonably safe condition under the circumstances.  In Daly v. 9 East 36th LLC, the Supreme Court of New York County considered the potential liability of a landlord for a house fire.

outletThe apartment was a 700-square foot studio with a main room, a gallery kitchen, three closets, a hall, and a bathroom.  There were seven electrical outlets in the apartment and a fuse box with two fuses.

The plaintiff used several extension cords throughout the apartment, with two or three in the living room area.  On the day of the fire, he had the television, the VCR, a lamp, and a fan plugged into the extension cords in the living room when he went to bed.  He woke up in the burn unit of the hospital.

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Sometimes pedestrians cross the street outside the crosswalk.  Fortunately for accident victims, crossing outside the crosswalk does not necessarily preclude them from compensation from at-fault parties.  In New York, a driver still has a duty to exercise due care to avoid striking a pedestrian.  The Supreme Court in New York County recently considered a defense motion for summary judgment, based in part on the plaintiff’s failure to use a crosswalk, in Kaur v. Reynoso.

crosswalk signThe plaintiff filed suit against the driver and the owner of the Access-A-Ride vehicle that hit her, as well as the MTA and the New York City Transit Authority.  The plaintiff alleged that she was struck by the vehicle while attempting to cross the street.  The defendants moved for summary judgment, contending that the plaintiff could not show they were the proximate cause of her injuries.  They further argued that the plaintiff was at fault for the accident for darting into traffic, and they did not have time to avoid the accident.

The defendant driver testified at his deposition that he was traveling in the second lane from the right, next to the bus lane.  He said he was traveling at about 20 or 25 miles per hour in light traffic. He said the light at the intersection in question was green, and he traveled through it and tried to brake when he saw the plaintiff.  He could not remember if he was able to hit the brakes before striking the plaintiff.

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A New York automobile accident victim may only bring a negligence case against the other party if the victim suffered at least $50,000 in basic economic loss or a serious injury.  The New York Insurance Law defines a serious injury to include certain specified injuries. A medically determined injury or impairment may also be a serious injury if it prevents the person from performing substantially all of his or her usual and customary daily activities for at least 90 of the 180 days immediately after the incident.

hospitalIt is common for defendants in New York automobile accidents to seek summary judgment on the issue of serious injury, as in the case of Romero v. Konneh.

In this case, the plaintiff alleged that he sustained tears in the distal supraspinatus tendon and the anterior glenoid labrum of his right shoulder, requiring surgery.  He also alleged that the accident resulted in three bulging discs.  The court cited to case law holding that acute sprains or strains, torn tendons or ligaments, and bulging or herniated discs can all constitute evidence of a serious injury if there is objective, competent medical evidence showing the injury caused a significant physical limitation.

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It is often said that New York law allows dogs one free bite.  It is more accurate to state, however, that an owner will be liable for injuries caused by a domestic animal if he or she knows or should have known of the animal’s vicious propensities if the injuries resulted from those propensities.  Although the courts have traditionally used the term “vicious propensities,” in Waldman v. Sangiray, the Supreme Court in Nassau County clarified that the word “vicious” might not be the most accurate term to explain the rule.

beware dogThe plaintiff was 82 years old at the time of the incident.  While her three-year-old grandson and she were walking around her neighborhood, the child stepped onto the defendant’s property.  The plaintiff said she also stepped onto the property to pull the child from the grass.  She said she did not recall hearing any barking or growling before the defendant’s Siberian Husky came up to her and “hit” her.  She alleged the dog put his paws on her shoulders, knocking her to the ground.  She alleged the dog “kept hitting her” when she tried to roll over.  She said the dog rolled her onto her back.  The incident lasted for an hour.  The plaintiff said the dog bit her at one point during the encounter.  She was only able to escape with the help of a passerby and the defendant’s son.  The plaintiff alleged that she suffered several injuries, including cuts on her face and ruptured and lacerated tendons in her hand and wrist.  The plaintiff filed suit against the dog owner, and the defendant moved for summary judgment.

The defendant generally kept the dog outside, where he was contained by an electronic fence.  There was no evidence that the dog was violent or had ever bitten anyone, or even growled or bared his teeth.  There was evidence, however, that the dog tended to jump on its owners to greet them.  The defendant testified that he never saw the dog jump on strangers, but the dog did jump on the defendant’s in-laws.  There was no evidence presented that the dog had ever knocked anyone else down.

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Defendants in New York personal injury cases often attempt to prevent a case from going to trial by moving for summary judgment.  To succeed in a motion for summary judgment, the defendant must show that it is entitled to judgment as a matter of law.  To make this showing, the defendant must establish that there is no triable issue of fact.  Generally, a defendant’s motion for summary judgment should not be granted if there is conflicting evidence that speaks to an element of the claim.

cracked concreteIn the recent case of Davidson v. New York City Transit Authority, the defendant moved for summary judgment despite its own driver’s inconsistent testimony about the accident.  The plaintiff was injured when she fell as she exited a city bus, and she sued the New York City Transit Authority (NYCTA).  The NYCTA moved for summary judgment, arguing that it had not breached its duty to provide the plaintiff with a safe place to exit the bus.

New York case law has held that a common carrier, like a city bus, must stop at a safe place for its passengers to enter and exit the vehicle.  The common carrier may be liable if the driver stops the bus in a location that requires the passenger to cross a dangerous or defective path to board or exit the bus.  Even if the driver stops at an unsafe location, the common carrier may not be liable if the driver did not know of the dangerous condition.

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New York Labor Law protects construction workers and places liability on owners and contractors under certain circumstances. Plaintiffs injured in a construction accident often bring claims under multiple sections of the Labor Law, as in Daniel v 384 Bridge St. LLC.

wood boardThe plaintiff alleged he was injured when he stepped on the edge of a piece of plywood covering a hole in the floor while walking through the construction site.  The plaintiff filed suit against the owner of the construction project, the construction manager, a subcontractor hired to perform concrete work, a subcontractor hired to perform carpentry, and his employer, which had been hired to do the window work.  The plaintiff filed claims for common law negligence and violations of New York Labor Law §§ 200, 240(1), and 241(6), and his wife asserted a claim for loss of consortium.  The defendants moved for summary judgment.

Pursuant to § 240(1), known as the Scaffold Law, contractors and owners must provide certain safety devices, including scaffolding, hoists, and ladders, to protect workers.  The court granted the motion as to the § 240(1) claim, finding that the section did not apply because there was no allegation that an elevation or gravity-related risk contributed to the injury.

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In construction accident cases, the defendants are often in possession of information the plaintiff may need to prove his or her case. In New York litigation, there is to be “full disclosure of all matter material and necessary in the prosecution or defense of an action” by a party. CPLR § 3101(a). Among the discovery devices available are interrogatories and demands for discovery and inspection of documents or property. CPLR § 3102(a). Sometimes a party does not want to produce the requested documentation or property. If a party wishes to object to the disclosure, that party must make the objection within 20 days of service of the notice. CPLR § 3122(a)(1). The party may also move for a protective order under CPLR § 3103.

hard hat areaIn McDougal v. WWP Office, LLC, the defendants moved for a protective order from the plaintiff’s notice of discovery and inspection. The plaintiffs cross-moved to strike the defendants’ answer or alternatively to compel the defendants to produce the requested documents.

The plaintiff was performing construction work at the site when the ceiling struck him. The plaintiff was employed by a non-party. He filed negligence and Labor Law claims against the building owner, the building occupier, and a construction company hired by the occupier.

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It can be difficult for a plaintiff in a New York automobile accident to succeed in a personal injury case when the defendant had the right of way, but it is not impossible.  Even a driver who has the right of way has certain duties of care, and if a breach of one or more of those duties causes an accident, the driver may be liable.

left turnThe recent case of Hurst v. Belomme addressed this issue.  The plaintiff allegedly sustained injuries in a collision that occurred while she was attempting to make a left turn from the southbound lane of the road.  The defendant’s vehicle was traveling north on the same road and struck the plaintiff’s vehicle.  The plaintiff sued the defendant to recover damages for her injuries.  The defendant moved for summary judgment, arguing the sole proximate cause of the collision was the plaintiff’s negligence.  The motion was denied, and the defendant appealed.

To win a summary judgment motion in a negligence case, the defendant must show that he was not at fault for the accident.  The appellate division noted that there can be multiple proximate causes.  The court further pointed out that, although the driver with the right of way can anticipate that the other driver will follow laws requiring her to yield, the driver is negligent if he or she fails “to see what is there to be seen…”

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