December 1, 2006

Dog Bite - Animal Attacks


Once again, New York Courts have shown the difficulties in proving the vicious propensities of a dog. In Suchdev v. Singh, decided: November 24, 2006, Justice Weiss, a Supreme Court Judge in Queens County dismissed the plaintiff’s complaint. The Judge reasoned as follows:

This is an action to recover for personal injuries plaintiff sustained on December 19, 2004 when she was bitten by the defendant's, MENAKSHI SINGH's (hereinafter Mona), dog at the premises owned by her father, defendant MOHAN SINGH. The premises are a single family home in which MOHAN SINGH, his wife and two of his sons occupy the first floor and his son Arun (hereinafter Ronnie), his daughter Mona and Ronnie's friend Newang occupy the second floor apartment. In her complaint plaintiff alleges that on December 19, 2004 she was visiting her friend Ronnie, that his sister Mona, Ronnie and two friends were gathered in the livingroom. While Mona was feeding snacks to the dog, the dog turned and bit plaintiff in the face.

Although not separately numbered, the complaint alleges two causes of action. The first sounding in strict liability based upon the allegation that the defendants knew or should have known that the dog had vicious propensities; and the second sounding in common-law negligence.

In Collier v. Zambito, 1 NY3d 444 [2004], the Court of Appeals reaffirmed the long standing rule that the owner of a domestic animal, a dog in this case, will be held strictly liable for an injury caused by the dog when the owner either knows or should have known of the dog's vicious propensities and the injury is a result of those propensities (see also Hosmer v. Carney, 228 NY 73, 75[1920]). The court went on to say that an animal can be found to have vicious propensities even when its behavior would not be "considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm . . . albeit only when such proclivity results in the injury giving rise to the lawsuit" (Collier v. Zambito, 1 NY3d at 447). "Vicious propensities include the 'propensity to do any act that might endanger the safety of the persons and property of others in a given situation'" (Collier v. Zambito, 1 NY3d at 447 quoting Dickson v. McCoy, 39 NY 400, 403 [1868]). The determination of whether a dog has vicious propensities and whether the owner knows of such propensities involves the consideration of proof of such factors as the dog's prior similar acts, the tendency to growl, bare its teeth, snap at or jump up on people, the fact that the dog was kept for protection or as a guard dog, and whether the dog was restrained and how it was restrained (Collier v. Zambito, supra; Parente v. Chavez, 17 AD3d 648 [2005]).

Although the First and Second Departments have allowed recovery for injury caused by domestic animals based on common-law negligence even in the absence of any proof of the owner's knowledge of prior vicious propensities (see, Colarusso v. Dunne, 286 AD2d 37 [2001]), the Court of Appeals in Barde v. Jahnke, 6 NY3d 592 [2006] has recently held that recovery for injuries caused by domestic animals may proceed only under strict liability standards and not on a common-law negligence theory (see also Morse v. Colombo, 31 AD3d 916 [2006]; Mindel ex rel. Mindel v. Jones, 16 AD3d 857 [2005], lv denied 5 NY3d 705 [2005]). Accordingly, the plaintiff's complaint, insofar as it asserts a cause of action for common-law negligence, is dismissed.

The defendants have established, prima facie, their entitlement to summary judgment by submitting the deposition testimony of the parties which demonstrated that the dog did not have vicious propensities or "a proclivity to act in a way that puts others at risk of harm", and that the defendants lacked any knowledge of any such "proclivities" (see Longstreet v. Peltz, ___ AD3d ___, 821 NYS2d 899 [2006]; Cohen v. Kretzschmar, 30 AD3d 555 [2006]; see also Malpezi v. Ryan, supra). In this regard, defendants submitted, inter alia, the plaintiff's deposition where she stated that she had been to Mona's apartment on several occasions, that although the dog was usually in Mona's room, on two occasions the dog was in the room with her, that she was not afraid of the dog and the dog had never attacked, or growled or bit her before. Where as here the defendants have established their entitlement to summary judgment, the burden shifts to the plaintiff to come forward with competent evidence to raise a triable issue of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zukerman v. City of New York, 49 NY2d 557, 562 [1980]). This the plaintiff failed to do.

In opposition, the plaintiff asserts that the dog had a history of aggressive behavior and that the defendants knew of such behavior and failed to disclose it. In support of this claim plaintiff submitted the veterinary clinic's medical records of the dog which contains an entry dated November 17, 2004" bleeding ear tip," " bite wound from October 31, 2004". Plaintiff argues that based upon this evidence alone, the motion should be denied, because the defendant's deposition testimony that the dog had a "cut" on the ear not a bite, is in conflict with the note which raises questions of credibility as to the defendants' knowledge of the dog's vicious propensities. Plaintiff's argument is without merit. Whether the dog had a cut or a bite on his ear, however, is insufficient to raise a question of fact as to whether the dog has vicious propensities, where as here there is no evidence of the medical basis for the entry and no evidence that the dog was involved in a fight in which it was the aggressor (see Marshall v. Darmody-Latham, 11 AD3d 992 [2004]).

November 30, 2006

Recent Infant Compromise Decision involving lead paint


A recent case in Kings County discussed the power of the Court to reject the proposed settlement of a lawsuit involving a minor. In Joseph v. Drenis Realty LLC, 3819/00, decided: November 14, 2006, the Court found as follows: This application for an infant compromise order seeks approval for a proposed settlement of Mylic Olivier's claim for damages in a lead-paint poisoning case, instituted by his mother, Nadese Joseph, on his and her own behalf. For reasons that will appear, the application is denied, with leave to renew with new papers that address the concerns expressed.

The papers initially filed on this application consisted of a proposed Infant Compromise Order, an Attorneys' (sic) Affirmation of Paul Vesnaver; a Parent Affidavit of Nadese Joseph, the infant's mother; a letter dated August 23, 2005 from Structured Financial Associates to Plaintiffs' counsel, describing a structured settlement; a Physician's Affirmation of Leon Charash, M.D. dated September 14, 2005, accompanied by various medical records and reports; and a letter dated September 19, 2005 from Defendants' counsel to Plaintiffs' counsel, confirming a settlement at $200,000.00, "represent[ing] the balance of the insurance coverage limits available to the defendants for this matter."

Plaintiff Mylic Olivier was born on September 9, 1996, and was nine years old when the application was filed in October 2005. According to the Physician's Affirmation, Mylic "sustained the following injuries as a result of reported exposure to lead poisoning" at his residence at 38 St. Pauls Place, Apt. #3I, Brooklyn:

"organic brain damage; severe developmentally impaired with respect to social, behavioral, cognitive, motor and adaptive development; quantitatively and qualitatively limited interaction and play skills with his peers; does not demonstrate the understanding of complex directive; poor ability to process information, requiring continuous cues to engage in specified tasks and/or task completion; severe impairment in attention span and concentration."

Based upon his review and a most recent examination of Mylic on September 14, 2005, Dr. Charash "found that [he] ha[d] received maximum benefit from treatment and his condition has been stabilized with medication."

Of the total $200,000.00 proposed settlement, $30,000.00 has apparently already been paid to Mylic's mother on her claim for loss of services. Of the remaining $170,000.00, Plaintiffs' counsel is requesting a fee of $56,666.66, waiving disbursements, leaving $113,333.34 for Mylic. It was proposed that an annuity be purchased, providing for the following periodic payments:

$13,075.00 Semi-annually for eight (8) guaranteed payments (4 years) beginning September 9, 2014 (age 18), with the last payment on March 9, 2018

$20,000.00 September 9, 2021 (age 25)

$30,000.00 September 9, 2026 (age 30)

$40,000.00 September 9, 2031 (age 35)

$60,000.00 September 9, 2036 (age 40)

$113,000.00 September 9, 2061 (age 65)

In his affirmation, Mr. Vesnaver recommended the settlement as "a fair and appropriate settlement given the recovery made by the Infant Plaintiff." Mylic's mother, Nadese Joseph, agreed to the settlement in her Affidavit. Neither document provided any elaboration for the conclusion that settlement for the sum of $170,000.00 is a fair and reasonable settlement, nor did either provide any reason for structuring the settlement generally or with the periodic payments proposed, nor did either explain any basis for the $30,000.00 paid to Mylic's mother.

In telephone conversation with Plaintiffs' counsel and at a June 6, 2006 interview, the Court expressed several serious concerns raised by the application. They were, generally and in no particular order: the Court was given no medical opinion as to whether and to what extent Mylic is likely to be capable of handling his own affairs when he reaches majority; the Court was given no opinion by any qualified expert as to whether and to what extent some portion of the settlement funds might be effectively used before Mylic reaches majority to ameliorate any of the learning, behavioral, or other developmental effects that he has suffered from lead poisoning; the Court questioned both the authority and justification for a structure that deprives the infant of the opportunity to make his own allocation of substantial funds for use and investment, with the final, and largest, payment deferred until age 65; and the Court could see no justification for deflecting more than 20 percent of available insurance proceeds (after deduction of a one-third attorney fee) to the mother for "loss of services." Only some of these concerns have been adequately addressed in the many months the application has been pending.

In an Amended Physician's Affirmation, after a further examination of Mylic on March 27, 2006, Dr. Charash offered his opinion that Mylic "will be able to graduate from high school, and may within reasonable certainty have the capacity to go on to some additional training and education." He opined further "within a reasonable degree of medical certainty", that Mylic will "be competent to handle his own affairs upon reaching the age of majority."

A revised proposed compromise order has been submitted that includes a different schedule of payments, namely:

$13,075.00 Semi-annually for eight (8) guaranteed payments (4 years) beginning September 9, 2004 (age 18), with the last payment on March 9, 2018

$25,000.00 September 9, 2021 (age 25)

$40,000.00 September 9, 2026 (age 30)

$84,056.62 September 9, 2031 (age 35)

The revised proposed compromise order was not accompanied by an additional attorney's affirmation or an additional guardian's affidavit, explaining how the new schedule of payments will serve Mylic's interests. Although the revised proposed order was accompanied by eight pages of school records, they are not explained by any teacher or other professional, and do not provide any assessment of Mylic's current developmental status or any information on whether and how he might benefit from assistance that will not be provided by the public school system.

As to the $30,000.00 payment to Ms. Joseph, a March 9, 2006 letter from counsel advises that, "due to the additional needs of Mylic which resulted from the lead poisoning, such as the special diet required by Dr. Charash as noted in his affirmation as well as specialized aftercare once the school day is done, Ms. Joseph required a fund from which she could help defer these costs given the limited nature of her income." The "special diet required by Dr. Charash" is a reference to the following statements in his Amended Physician's Affirmation: "I have advised the infant-plaintiff's mother to provide the infant with vitamins and iron supplements. She was also given a dietary instruction, with advice to eat a lot of green leafy vegetables." The Court has been given no description of the "specialized aftercare" counsel mentions, or any professional justification.

In considering an application for approval of an infant compromise, the court must "scrutiniz[e] it to assure that it [is] fair and reasonable and in the infant's best interests." (See Edionwe v. Hussain, 7 AD3d 751, 753 [2d Dept 2004]; see also Barretta v. NBKL Corp., 298 AD2d 539, 539-40 [2d Dept 2002].) The facts and circumstances to be considered are those required to be included in the affidavit of the infant's representative, the affidavit of the infant's attorney, and in the medical or hospital reports, that must be submitted with the application. (See CPLR 1208[a], [b], [c]; see also Uniform Rules for the New York State Trial Courts, 22 NYCRR §§202.67, 208.36.) The considerations are similar to those that determine the fairness and reasonableness of settlements generally (see Allstate Insurance Co. v. Williams, 2006 U.S. Dist. LEXIS 67849, *5-*7, 2006 WL 2711538 [EDNY]), but require special focus on whether the infant's representative or counsel may have an interest adverse to or conflicting with that of the infant (see CPLR 1208[a][8], [b][2], [e].)

"[T]he power of the court to approve a settlement does not confer a concomitant power to dictate the terms of the settlement." (Stahl v. Rhee, 220 AD2d 39, 44-45 [2d Dept 1996].) "In a case where reasonable minds may legitimately differ, the judgment of the infant's natural guardian should prevail." (Id. at 46; see also Matter of Palmiere, 284 AD2d 965, 966 [4th Cir 2001].) But the court need not defer to a guardian's judgment that is "unreasonable, arbitrary, or capricious" (see Stahl v. Rhee, 220 AD2d at 46; Matter of Palmiere, 284 AD2d at 966), and the court may withhold its approval if all relevant information is not discernible from the record and "it does not appear that the infant plaintiff's best interests are being protected." (See Edionwe v. Hussain, 7 AD3d at 753-54.)

The deference given to the guardian's judgment covers the guardian's choice of a structured settlement. (See Barretta v. NBLK Corp, 298 AD2d at 539-40.) But the papers submitted on this application contain no explanation for that choice. (Compare Glenn v. Jones, 8 Misc 3d 799, 801 [Sup Ct, Nassau County 2005].) Nor is there any evidence that the guardian has investigated and considered whether any of the settlement funds would better be directed to the infant's immediate developmental needs (see Edionwe v. Hussain, 9 AD3d at 753-54), as requested by the Court more than once during the pendency of the application.

Equally troubling, if not more so, is Ms. Joseph's settlement of her claim for loss of services out of the available insurance proceeds. Except for a statement in a doctor's 2002 report that Mylic's father was living in Boston, the application contains no information on the father's relationship to the infant. The Court will assume, nonetheless, that Ms. Joseph would be able to establish facts that would entitle her to a claim for loss of services. (See Winnick v. Kupperman Construction Co., Inc., 29 AD2d 261, 266-67 [2d Dept 1968]; In re LaPonzina, 116 NYS2d 750, 751 [Sur Ct 1952].)

The right to recovery for loss of a child's services during the child's minority when caused by tortious injury has long been established at common law. (See Cuming v. Brooklyn City Railroad Co., 109 NY 95 [1888].) The parent is entitled to recover damages "measured by the pecuniary loss . . . sustained . . . including the value of [the child's] services, if any, of which [the parent] was deprived and reasonable expenses necessarily incurred by the [parent] in an effort to restore the infant to health." (Gilbert v. Stanton Brewery, Inc., 295 NY 270, 273 [1946].) There is no recovery for loss of society or companionship. (See id.; Devito v. Opatich, 215 AD2d 714, 715 [2d Dept 1995].)

There is no evidence on this application that Ms. Joseph has sustained or will sustain pecuniary loss by reason of deprivation or diminution of Mylic's services. (See Devito v. Opatich, 215 AD2d at 715; Foti v. Quittel, 19 AD2d 635, 635 [2d Dept 1963].) Although with respect to certain physical injuries, the absence of proof of loss of services might be cured by "ordinary human experience" (see Zimmerman v. New York City Health and Hospitals Corp., 91 AD2d 290, 295 [1st Dept 1983]), that is not apparent here, and would not in any event justify an award of $30,000.00 to the mother when the child is receiving $170, 000.00 (see id.)

As for expenses for vitamins and green leafy vegetables, assuming that such expenses could be recovered by Ms. Joseph if she actually incurred them (see Martell v. Boardwalk Enterprises, Inc., 748 F2d 740, 754-55 [2d Cir 1984] [educational expenses]), there is no evidence that she has. Any expenses of that type that might be incurred in the future must be reflected in Mylic's recovery, and not his mother's. (See Clarke v. Eighth Avenue Railroad Co., 238 NY 246, 249-50 [1924]; Stiles v. Caddick, 11 AD2d 889, 889-90 [3d Dept 1960].) Such an allocation "insures that whatever sum will be recovered will be more likely used for the infant's benefit than if a recovery be permitted by the parent." (See Clarke v. Eighth Avenue Railroad Co., 238 NY at 250.) The recovery will then be subject to the "usual protection of judicial supervision over the proceeds." (See Stiles v. Caddick, 11 AD2d at 890.)

Indeed, if such expenses are likely, and are the only basis for any recovery by the mother, it appears that the court would have the power to direct transfer of the mother's recovery to the benefit of the child. (See id.; see also Shields v. City of Watervliet, 41 AD2d 170, 172 [3d Dept 1973].) That is not a question that need be resolved now.

To the extent that the amount proposed to settle Mylic's claim, $170,000.00, does not include expenses that would necessarily be incurred for his care, and particularly since funds to cover those expenses were available through insurance, it is difficult to see how the amount proposed is a fair and reasonable settlement. Counsel's affirmation states conclusorily that the amount proposed is "a fair and appropriate settlement given the recovery made by the Infant Plaintiff", but "counsel . . . [does] not explain his reasons for recommending the settlement." (See Edionwe v. Hussain, 7 AD3d at 753-54.) The Court has already noted the absence of investigation into whether Mylic would benefit from immediate assistance and its likely cost. "In addition, there is no evidence of any diligent inquiry into the availability of additional insurance or assets against which the infant plaintiff might collect or concerns about liability if the case is tried." (Id., at 754.)

The Court must also note that, having reviewed hundreds of applications for approval of infant compromises, this is the first that does not contain a waiver of the parent's claim for loss of services. An informal survey confirms that this experience is shared throughout the courthouse. Every case, of course, is different, and one parent's decision to forgo a claim cannot bind another parent. But the experience suggests societal mores that encourage the parent to maximize the monetary recovery of the child, particularly when, as appears the case here, presented with a zero-sum field.

In preparing for renewal of this application, counsel should consider whether Ms. Joseph and Mylic have adverse interests, and whether his continued representation of both would create a conflict.

Civil CourtJudgeBattaglia

October 13, 2006

Medicaid Liens

MEDICAID LIENS - Fergeson v. IHB Realty Inc. In this case, plaintiff moved to modify a prior court order awarding $40,000 to New York City in full satisfaction of its asserted medicaid lien arguing the settlement should be set aside based on the recent ruling in Ark. Dept. of Health and Human Services, et al. v. Ahlborn asserting the holding made it clear the federal medicaid law and its anti-lien provision prohibited the recovery of medicaid liens from torts proceeds exceeding the medical expenses portion. The court stated the facts of this case did not run afoul of Ahlborn, noting all concerned parties were aware the matter was sent to arbitration with the court reserving the power to set liens. It noted it was clear liens would be deducted from the settlement regardless of any specific designation. The court directed counsel to negotiate a lesser compromise figure with the Department of Social Services which it agreed to set as the medicaid lien portion of the award in its order, and the amount of the reduced lien became the designated medical costs allocation in the prior settlement order, and pursuant to Ahlborn, the only amount recoverable by DSS. Thus, plaintiff's motion was denied.

October 11, 2006

DWI in NY State

Appellate Court decision regarding DWI in New York State - A driver who allegedly inhaled from a can of Dust-Off before veering into oncoming traffic and killing one person cannot face driving while intoxicated and vehicular manslaughter charges under the state's drunken-driving laws, an appeals court in Brooklyn has ruled. A divided panel of the Appellate Division, Second Department, held that the laws in question, Vehicle and Traffic Law §1192(3) and Penal Law §125.12, only apply to impairment caused by alcohol. The majority found that the state Legislature had clearly recognized that §1192(3) did not apply to driving under the influence of drugs, which is why it passed §1192(4). "For us to hold otherwise would render 1192(4) superflous[sic], a result to be avoided in statutory construction," the majority wrote in People v. Litto, 2005-02978. www.foleygriffin.com

June 1, 2006

NYC Construction Accident - Recent Settlement

Five companies that were involved in the demolition of a Queens bottling plant have agreed to pay a total of $16 million to a worker who suffered severe brain damage in a fall at the plant. The injured worker fell off of an 18-foot-high scaffold while working on the building. As the scaffold was not tall enough to reach the ceiling, the worker stood on a crate that was placed on the scaffold's top level. The claim was that this configuration was a violation of the New York State Labor Law. www.foleygriffin.com

Recent Jury Award

A jury awarded more than $13 million to a construction foreman who was injured when a job site's temporary bridge collapsed and dumped him onto a sidewalk eight feet below. After a judge ruled that the site's owners and the project's general contractors were liable via the broad applicability of the labor law, the jury found that the bridge's manufacturer was negligent in its construction of the bridge and that the site's engineer and the foreman's employer were negligent in their failure to inspect the bridge. The foreman, Paul Barraco, claimed that he sustained a back injury and fractures of both heels. He contended that he cannot resume work. Barraco was awarded $13,362,904, and his wife was awarded $637,096 for her residual loss. www.foleygriffin.com

May 11, 2006

MEDICAID LIENS


RECENT SUPREME COURT DECISION ON MEDICAID LIENS

Recently the Supreme Court decided a case that will have an impact upon State's ability to recover payments under Medicaid. In discussing litigation settlements and recoveries, the U.S. Supreme Court has ruled that States may not demand reimbursement from portions of the settlement allocated or allocable to non-medical damages; instead, States are given only a priority disbursement from the medical expenses portion alone. Why is this important? Before this ruling, states like New York, would seek reimbursement for all Medicaid related expenditures. This often would seriously reduce a person's recovery. Now, the State's recovery will be limited pursuant to the ruling. www.foleygriffin.com

January 17, 2006

Hospital May Be Held Liable for Private Doctor's Negligence

In a recent Nassau County medical malpractice case against North Shore University Hospital at Plainview, Dimitriou v. Mansouri, Nassau County Justice Bruce D. Alpert ruled that the hospital would not be released from the lawsuit of a plaintiff who sued to recover damages for personal injuries sustained as a result of malpractice of his private doctor who treated him at the hospital. The hospital moved to dismiss the complaint against it, claiming it could not be held responsible for the negligent acts or omissions of the plaintiff's treating private doctor. The rule is that a hospital could not be held liable for the malpractice of a private attending physician who was not its employee. However, there is an exception where the patient entered the hospital through the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing. The Court denied the hospital's motion stating that it failed to submit enough evidence to demonstrate that the plaintiff went to the emergency room seeking treatment from a private doctor rather than from the hospital itself. www.foleygriffin.com

January 11, 2006

The 90 Day Notice of Claim Rule

In the case of Tupaz v. City of New York, a Staten Island Judge, Justice DiDomenico, dismissed, on a legal technicality, the lawsuit of a Staten Island homeowner who sought to recover money damages against New York City after multiple City sewer back-ups caused damage to his house. The problem was that the homeowner filed the required Notice of Claim within the 90 days after the discovery of the cause of the damage, the defective sewer line, and not within the required 90 days of the actual damage. Although this was a property damage claim, the same rule applies (except for certain medical malpractice claims against the City) to personal injury claims. The lesson to learn here is if you have a claim that MAY be against The City of New York or any of its agencies or departments, make sure that a Notice of Claim is filed within 90 days of the event. www.foleygriffin.com.

January 10, 2006

New York State Liable for the Death of Group Home Member

Patrick v. State of New York. After the death of their son in the hands of State agents, his parents brought a claim against the State of New York alleging that their son died because staff members at the group home he lived in used excessive force to restrain him. They also claimed that the staff members were inadequately trained. The court ruled that the parents did establish "by a preponderance of the credible evidence" that the State's negligence caused their son's death and found the State fully liable. The court noted the cause of death was asphyxia during restraint, and that but for the use of excessive force by staff members of the group home, their son would likely be alive today. www.foleygriffin.com

January 9, 2006

Landlords Liability in New York State

Generally, in New York State, a landlord, must act reasonably in the maintenance of his/her property, keeping it in a reasonably safe condition. As most situations are unique to a degree, what is reasonable must be considered on a case by case basis. Each case will be evaluated by the Courts with the following in mind: the likelihood of injury to others; the seriousness of the injury; and the burden upon the landlord to avoid the risk of harm and injury to others. More particularly, a landlord is under a duty to keep in repair those parts of a property that are within his/her exclusive control. However, a landlord is required only to make the premises reasonably safe for the purposes for which they were intended to be used or for a purpose which he or she should reasonably anticipate. A landlord cannot ignore their property they lease to others and later claim that they did not know about a certain condition that caused someone to be injured. There is an affirmative obligation of landlords to exercise reasonable care to inspect and repair common areas of their premises for the protection of the tenants. This duty may not be delegated with the consequent immunity from liability. www.foleygriffin.com

Plaintiff's Lawyer Fails to Provide Discovery


One of the pitfalls of plaintiff personal injury practice is the failure to provide demanded discovery to your adversary. This can occur when an attorney for the injured party has either taken on too many cases, or has let a case slip through the cracks. The penalty for this inaction can be harsh. In the fall of 2005, New York State's highest court, The Court of Appeals, held that a trial court's dismissal of a plaintiff's personal injury action for the attorney's failure to comply with the Court's discovery orders warranted a dismissal "for neglect to prosecute the action". Unfortunately for the injured plaintiff, because the statute of limitations of three years had expired, the plaintiff was not allowed to bring the action again. The Court of Appeals stated that "disregard of deadlines should not and will not be tolerated." www.foleygriffin.com

January 6, 2006

Slip & Fall Upon Wet/Greasy Conditions Created by Restaurants.

There are many occasions when our clients are injured after they fall due to dropped debris from a restaurant staff member. New York law is clear on who is liable when these types of accidents happen and how to prove the fault of the restaurant if you are injured. In order for the injured person to establish liability of the restaurant for the debris and subsequent fall, she must submit evidence to the judge and jury to create a triable issue of fact of whether or not the restaurant either created the defective, dangerous and wet/greasy condition or had actual or constructive notice of it. The injured person may prove notice by submitting evidence that an ongoing and recurring dangerous condition existed in the area of the fall, which was routinely left unaddressed by the restaurant. If the injured person does establish this "recurrent condition", the restaurant may then be charged with constructive notice of each specific re-occurrence of the hazardous condition. Also, it is well settled that a restaurant is liable if its affirmative acts created or increased the hazard that caused the injury. www.foleygriffin.com

Medical Records - The New York State Privilege & Waiver

We represented the family of a young woman who was killed in a two car accident in Suffolk County, New York, when the driver of her car went through a stop sign and was hit by an oncoming car. There was a belief that the driver of the young woman’s car was drunk. This belief was confirmed by a test of his blood at the hospital he was taken to for treatment of his injuries. This blood test would not be admissible in a criminal trial due to a chain-of-custody issue. There would have to be an official blood test ordered by a warrant. The police did not get the warrant and the District Attorney’s office declined to prosecute claiming that there was no admissible proof under the New York State Vehicle and Traffic Law statute for Driving While Intoxicated. The family looked to Foley, Griffin, Jacobson & Faria, LLP to prosecute a wrongful death action against the drivers of both cars. However, because of New York State’s rule that a defendant in a personal injury/wrongful death action has his/her medical records protected by the physician-patient privilege, we could not introduce the medical records showing that the driver of the host car was intoxicated. There is only one exception to this rule, if the defendant waived the privilege. During the prosecution of the wrongful death action, we learned that the driver brought his own personal injury action for the injuries he sustained. His medical condition was now out in the open and his hospital records showed that he had a blood alcohol level over twice the New York State legal limit. Once the driver realized that his intoxication would be too strong an issue for him to overcome in his lawsuit, he withdrew it. We attempted to use his hospital records in the wrongful death action to prove he was intoxicated. His lawyers objected, claiming that he was still protected by the physician-patient privilege. We countered that once the driver waived the privilege in his action, it was waived for all time and all purposes. The fact that he discontinued his lawsuit was of no concern. After argument, the Judge agreed with our position and ruled that the hospital records of the driver would be admitted into evidence. www.foleygriffin.com