You Are Not in This Alone - Evidence of Other Accidents

             One of the most important battles in any product liability/machine accident case is the fight to obtain discovery from the manufacturer relating to prior accidents.  This information is vital at trial to show the jury that: (a) the defendant was aware of a problem with the design of the product; and (b) that the plaintiff was not the only person ever hurt by this product.   This is particularly important when the case involves a product that has been on the market for a long time because the defendant wants to say to the jury that you were the “only one” injured on one of the thousands of machines they produced over the last 50 years.  The clear implication is that the plaintiff suing a manufacturer because of a defective product got hurt because he/she was “stupid” rather than due to a defective design.  

            Evidence of other accidents occurring on admittedly similar model machines is admissible at trial to establish the defendant’s knowledge of the defect in the design and the dangerous nature of the machines.  Courts have consistently held that evidence of prior accidents is proper "to establish that the condition was dangerous and that defendant had notice of it before plaintiff's injury."  Sawyer v. Dreis & Krump Manufacturing Co., 67 N.Y.2d 328, 336, 502 N.Y.S.2d 696, 701, 493 N.Y.S.2d 920 (1986). 

            This concept is so effective at trial that manufacturers fight very hard to limit the information they disclose.  First, they attempt to limit the scope of discovery to the exact same model number involved in the plaintiff’s accident.  Second, they attempt to limit the timeframe for the discovery.  Finally, they try to argue that all of the other accidents are different from the plaintiff’s case.  To force disclosure of accidents involving “other models” it is important to show that even though they model name/number differs they are essentially the same design.  Often, a manufacturer makes different sizes of the same machine.  In addition, model names/numbers may change over the years with cosmetic changes (sometimes as trivial as changing the color); or with changes to the user manual.  This is particularly true in cases involving industrial machines that may be unchanged for decades. 

            The argument that the hordes of other accidents are different from the plaintiff’s case is often the most difficult because we are usually relying on the information provided by the manufacturer.  However, the plaintiff does not need to prove that each prior accident occurred “exactly” like his/hers – only that the prior accidents were substantially similar to the current case.  Therefore, if ten other people were hurt pushing meat into a grinding machine the jury should be allowed to hear it (regardless of the particulars of any one case).  This evidence is so important in the litigation of defective products and machines because it changes the theme from the plaintiff was the only “stupid” person to get hurt to “this was just an accident waiting to happen” because the defendant refused to protect people from this dangerous machine.

Springtime in New York means Little League, playing in the park … and “assumption of the risk.”

            “Assumption of the Risk” is a little known doctrine in New York Law that allows the Court to dismiss your case for any injury that is considered to be inherent in the activity.  For example, if you break a leg playing football the case will probably be dismissed because that is a risk associated with the sport. See, Trupia v. Lake George Central School District, 14 N.Y.3d 392 (2010).  However, your case can also be dismissed if the injury was caused by a defect in the playing surface that was open and obvious.  If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport/activity is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport.  If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies. 

            For example, in Calise v. City of New York, 239 A.D.2d 378 the plaintiff was thrown from a mountain bike, which he was riding on an unpaved dirt and rock path in a park, when the bike struck an exposed tree root. This Court held that the plaintiff's action was barred by the doctrine of primary assumption of risk, reasoning that “[a]n exposed tree root is a reasonably foreseeable hazard of the sport of biking on unpaved trails, and one that would be readily observable.”  On the other hand, in Cotty v. Town of Southampton, 64 A.D.3d 251 (2d Dept. 2009) the same Court found that a person riding a bicycle on a paved roadway (even when riding a high speed in tight groups) does not “assume” the risks associated with a negligently maintained road and dangerous conditions created by roadwork being performed on the roadway. 

            In Gallagher v. County of Nassau, 74 A.D.3d 877 (2d Dept. 2010) the Court held that a plaintiff could maintain a lawsuit when he was injured while trying to make a diving catch while playing softball where his injury was caused by a small, round cement object which he had not seen or encountered previously and which had been permanently installed in fair territory in the outfield, apparently to assist in drawing lines on the field when it was used for soccer.  The rationale of the Court was that while participants in sporting events assume the known, apparent, and reasonably foreseeable risks of their participation they do not consent to risks which are concealed, unassumed, or unreasonably increased.  However, the same Court recently dismissed the case in Palladino v. Lindenhurst Union Free School District, where an 11 year old boy who was injured while playing handball at the school.  His injury was caused by a dangerously installed air-intake grate on the handball court.  The Court dismissed the case because the boy knew that the grate was improperly placed (leaving a 3-6 inch gap hole in the court) and was warned that the area of the court was dangerous.   In short, the answer to whether you can successfully bring a lawsuit in these cases will depend on what you knew at the time of the accident.

Did You Know that the Defense Attorney is Speaking to Your Doctor?

            It is relatively well known that when you bring a personal injury action your medical records are disclosed to the defense.  However, currently in New York, pursuant to Arons v. Jutkowski, 9 N.Y.3d 393 (2007), you are also required to give your doctors permission to speak to the defense attorneys in a private, unrecorded conversation.  The “logic” of the Court of Appeals is based on the premise that attorneys prefer to informally interview witnesses, including doctors, to determine if they would be beneficial to his/her client’s position at trial.  Under the pre-Arons rules, the Court found that plaintiff attorneys had the advantage of informal access to the plaintiff’s medical doctors at the request of the plaintiff/patient.  The Arons Court required the plaintiff to sign an authorization permitting the doctor to speak informally to the defense attorney.  However, in its logic, the Court did not think through the potential abuses of this ruling.

            In a medical malpractice case, for example, there is no protection against an unscrupulous defense attorney from attempting to influence the doctor with statements like: they share medical malpractice insurance carriers with the target defendant; “imagine” if the patient sued you next; the target defendant is on the board of a prestigious hospital; or a multitude of less subtle ways of skewing the treating doctor’s potential testimony.  There have even been instances where the treating doctor has refused further treatment of the patient after one of these private “interviews”.  In other personal injury cases, the defense attorney must be given permission to speak to all of the client’s doctors – even if the treatment has nothing to do with the case.  For example, a woman with a broken wrist as a result of a car accident, may have to give permission to her gynecologist to speak to the defense attorneys.  The thought is that there may be some nugget of useful information about your broken wrist that can be gleaned from privately interviewing a completely unrelated specialist. 

            There is some hope to change this ill conceived rule of law coming from the NYS Legislature.  There is currently a bill working its way through the Legislature (S3296A/A964A) that would reverse the Arons Court and prohibit ex-parte interviews with treating physicians.  Please let your elected officials in Albany know that you are asking them to support this  bill.

Proving Liability When a Bus Stops Short

            Most New Yorkers are accustom to the violent stops and starts of buses driving on New York City streets.  However, few are aware of the level of proof required to win a lawsuit when someone is injured when a stopping bus throws a passenger to the floor.  These cases are made more difficult by the fact that while the injured person is being taken to the hospital the New York City Transit Authority doing everything possible to make victory at trial impossible.  First, the police are rarely called – instead a NYCTA dispatcher is called to the scene to investigate the accident (no one knows how this is permitted).  Second, the contact information of witnesses “favorable” to the injured person is rarely obtained.  Imagine, while you are writhing in pain n route to the hospital, the NYCTA (a public authority) is trying to sanitize the case to prevent you from obtaining a recovery in Court.  However, the Courts – and jurors – have ruled in favor of plaintiffs where we can show that the jerking of the bus went beyond the normal stops and starts of City traffic.

            In Urquhart v. NYCTA, 85 NY2d 828, 830, 623 N.Y.S.2d 838 (1995) the Court of Appeals held that the plaintiff’s testimony that the bus was traveling at a high rate of speed followed by a sudden stop that caused him to fall was sufficient to support a jury verdict.  The Court held that the plaintiff’s evidence is:

more that a mere characterization of the stop.  It provided objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant.

Id at 830.  The First Department has examined the issues raised in the course of this trial multiple times within the last few years.  In Crane v. NYCTA, 60 A.D.3d 467; 874 N.Y.S.2d 112 (1^st Dept. 2009) when the bus stopped suddenly causing her to fall.  The Court affirmed an award of summary judgment to plaintiff based solely on plaintiff’s deposition testimony that the bus’ “sudden stop caused a jerk or lurch that was ‘unusual and violent.’"  In Grant v. NYCTA, 61 A.D.3d 422; 877 N.Y.S.2d 31 (1^st Dept. 2009), the Court reversed the trial court’s order dismissing the case based solely on plaintiff’s testimony that the bus was moving very quickly then stopped so suddenly that he and another passenger fell to the floor.  The Court held that “such testimony constitutes ‘objective evidence that the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant.’ 

            In the case of Saracino v. NYCTA (N.Y. Sup Index #104263/07), we successfully argued that the plaintiff’s testimony established liability.  In that case the plaintiff testified that the bus accelerated suddenly and at such a speed that she was being propelled to the rear of the bus and had to hold on to the tops of the seats to avoid falling.  Then, without warning, the bus driver slammed on the brakes causing her to lose her footing and fall towards the front of the bus and crash into a seat.  In addition, we relied on the medical testimony of her treating surgeon to explain to the jury that the amount of force required to sustain her injuries was consistent with a serious impact and not from merely falling from a standing position. 

Co-op Apartment Liability for Construction Accidents

            The New York State Labor Law provides protection for many types of accidents involving construction, renovation and demolition work activities.  Generally speaking, the owner of the premises and the general contractor are legally responsible for maintaining a safe work site and are held responsible because they are in the best position to ensure worker safety (See, New York State Labor Law §§200, 241(6) and 240(1)).  In New York City, in particular, where many of the private residential buildings are owned as cooperative apartments (or co-ops) the question of who is legally responsible for construction accidents is clear – but perhaps not easily understood.  The individual unit “owner” is generally protected by the single family homeowner exception to the Labor Law.  However, the building owner can be held liable – even for work being done solely inside an individual apartment.

            In Coleman v. City of New York, 91 N.Y.2d 821, 666 N.Y.S.2d 553, 689 N.E.2d 523 (1997) the Court of Appeals examined the liability of a cooperative corporation and held that:

the owner of the property argued that it was not liable because it leased the property to a contractor who performed the work leading to the injury and did not itself contract for or benefit from the construction involved.  We disagreed, stating that "[l]iability rests upon the fact of ownership and whether Eastern had contracted for the work or benefitted from it are legally irrelevant."  (Supra, at 560, 606 N.Y.S.2d 127, 626 N.E.2d 912.)  Relying on our earlier decision in Celestine v. City of New York, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548, affg. 86 A.D.2d 592, 446 N.Y.S.2d 131, we articulated the bright line rule that "when the Legislature imposed the duties of section 240(1) on '[a]ll * * * owners' it intended to include owners in fee even though the property might be leased to another" (Gordon v. Eastern Ry. Supply, supra, 82 N.Y.2d, at 560, 606 N.Y.S.2d 127, 626 N.E.2d 912).

More recently, in Pineda v. 79 Barrow Street Owners Corp., 297 A.D.2d 634, 636, 747 N.Y.S.2d 236, 239 (2d Dept. 2002) where the plaintiff fell from a ladder while painting the living room of an individual shareholder without the prior consent or notice to the cooperative building owner, the Second Department held that, “as the fee owner and the owner’s agent, the defendants are absolutely liable under the Labor Law . . .”  The issue of a cooperative corporation's liability under Labor Law §241(6) was also addressed in DeNota v. 45 East 85th Street Corp., 163 Misc.2d 734, 622 N.Y.S.2d 192 (S.Ct. N.Y. Co. 1995).  In DeNota the plaintiff was cutting wood with a power saw in an apartment unit at the cooperative building owned and controlled by the defendants.  The cooperative corporation alleged that it should not be liable since it did not contract for the renovation work, which was done on behalf of the individual apartment owner.  The Court rejected this argument and denied the cooperative corporation's motion for summary judgment on this ground, explaining that (622 N.Y.S.2d at 193):

However, the statutory purpose of affording protection to workers employed in construction, excavation or demolition is to provide a recourse to the workers regardless of the absence of control, supervision or direction of the work [cites omitted].  The owner is in the position to ensure that adequate protection is provided and the statutory liability provides the motive [cases omitted].

            The Courts are merely following the centuries old definition of “owner” in coming to this conclusion.  While most people believe that they “own” a co-op apartment, in reality the apartment is owned by the cooperative corporation that owns the entire building.  The individual merely owns shares in the co-op corporation that entitles them to occupy a particular unit in the building.  Therefore, as the true “owner” of the work site the coop corporation can be held responsible for construction accidents. 

Liability for Providing Alcohol

Bars, restaurants and any person providing alcohol can be held responsible for plaintiff’s injuries caused by another patron for the unlawful sale of alcohol when he was visibly intoxicated.  The injuries can be caused by a car accident, assault or even falling on the plaintiff.

General Obligations Law §11-101 (the "Dram Shop Act") states:

                Compensation for injury caused by the illegal sale of intoxicating liquor:

                                    1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.

In McGovern v. 4299 Katonah Inc., 5 A.D2d 239, 773 N.Y.S.2d (1^st Dept. 2004), the plaintiff was injured when an allegedly intoxicated patron fell on top of her.  The Court held that the defendant must “negate the possibility that it served alcohol to a visibly intoxicated person” to be successful on a motion to dismiss a claim brought under the Dram Shop Act.  The Court denied defendant’s motion for summary judgment because the plaintiff offered evidence that one hour before the incident the other patron was seen drinking in the bar and stumbling around. 

It is well settled that the issue of whether the defendant provided alcohol to a visibly intoxicated patron is for a jury to determine at the time of trial.  In Zambrano v. Bobola, 2008 N.Y. Misc. Lexis 3730, 239 N.Y.L.J. 119 (NY County, 2008), the Court held that the defendant must eliminate material issues of fact to prevail on a motion to dismiss.  “A claim under the Dram Shop Act may be established through circumstantial evidence, including the testimony of eyewitnesses.  It is for the jury to decide the issue of fact whether [the defendant] continued to serve drinks to a visibly intoxicated patron.” 

So remember, you may be held responsible for a car accident, assault or other drunken antics of your guests.