Police Officer Liability

In Tutrani v. County of Suffolk, the Court of Appeals unanimously decided that a Suffolk County Police Officer was properly held 50 percent liable by a jury for an auto accident in which another motorist was injured. The officer was driving his vehicle on the Long Island Expressway in the middle lane during rush-hour traffic when he abruptly decelerated from 40 mph to a crawl while changing lanes. Plaintiff, traveling immediately behind him, slammed on her brakes and was able to stop without colliding with the officer's vehicle. However, seconds later, plaintiff's vehicle was rear-ended by another vehicle.

The jury found both the officer and rear driver 50 percent at fault for the plaintiff's injuries. On appeal, the Second Department held the officer was not liable because his conduct was not a proximate cause of the accident as plaintiff was able to stop before striking his vehicle. The Court of Appeals overruled the Second Department, holding that "it is irrelevant that plaintiff was able to stop her vehicle without striking the officer's vehicle." The highest court in the state went on to find that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle. However, the rear driver's negligence in rear-ending plaintiffs stopped vehicle does not absolve the officer's liability as a matter of law. Clearly, the officer's actions created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear-end collisions. It is a foreseeable consequence of the situation created by the officer that a negligent driver may be unable to stop his or her vehicle in time to avoid a collision with a stopped vehicle in the middle of the highway. http://www.foleygriffin.com/

Lawsuit Dismissed Against Driver Caught in Car Chase

In Pisciotto v. LaRocque, a driver, caught in the middle of a speed race that ended in a three-car accident, was found not to be negligent in a lawsuit brought by his passenger. The driver was going down Town Path Road in Glen Cove when two vehicles pulled up alongside, flanking him. The court found that the testimony plainly showed a speed race, where both racers simultaneously attempted to pass the driver. One of the racers collided with the driver, then hit the other racer before crashing into a tree. The court held that mere speculation that the driver failed to take accident avoidance measures, such as braking or steering away, was not enough to keep him in the lawsuit. http://www.foleygriffin.com/

Lawsuit Filed on Behalf of Estate of Teenager

A Harborfields High School senior drowned in shallow water while he practiced holding his breath at the YMCA of Long Island's Huntington facility. Two lifeguards were on duty when the accident happened, as well as an aquatics coordinator. A lawsuit has since been commenced by the student's estate against the YMCA and some of its employees for "reckless, careless and negligent . . . life guarding and supervision of the 4-foot deep pool." The lawsuit also alleges the YMCA and their employees were "reckless, careless, and negligent in the ownership, operation, management, maintenance, control, life guarding and supervision of the subject premises."

The family believes that the lifeguards failed to stop the boy from a life-threatening activity and, when he was in distress, were inadequately prepared to respond in a timely and proper manner. In our opinion, the estate will have an uphill battle being successful on this case. Many times, courts will reject these claims before the family has a chance to present their case to a jury, based upon the fact that the injured party, or in this case this case, the decedent, "assumed the risk" of injury or death.

Student Assault - Brooklyn

In the case of S.K. v. City of New York, the plaintiff SK was a 7th grader from Brooklyn who was injured during a fight with a fellow student, LC, at the end of gym class. LC assaulted SK and struck him the head. This caused SK to have a hemorrhage that necessitated approximately ten brain surgeries. There was evidence that the Board of Education of the City of New York was aware that SK had previously and repeatedly been harassed and assaulted by fellow students, including LC. There was also evidence that the Board refused to transfer SK to a safer school after repeated requests by his father. At the time of the assault, LC initially cursed at SK and then SK cursed back. LC threw the initial punch and SK hit LC back. The attorneys for the Board, who obviously forgot what it was like to be a 7th grader, argued that SK deliberately chose to continue the fight instead of retreating or seeking help from the gym teacher. They asked the judge to throw the case out of court. In response to this move, SK's father offered a detailed history of the complaints he made to the school along with four specific incidents where SK was attacked by other students in 1998. He stated he met with the principal about these incidents. He also wrote a letter wherein he detailed the incidents of harassment and physical assault and asked that his son be transferred. He detailed similar incidents throughout the year of 1999. The judge wisely refused to dismiss SK's case, stating that it was up to a jury to decide (1) if the Board should have provided closer supervision of SK or taken other action to protect him, (2) if SK was a voluntary participant in the fight with LC or was merely acting in self defense, (3) if the gym teacher provided adequate supervision of his students, (4) if SK's chronic problems with other students required closer supervision, (5) if the Board was on notice of such problems, and (6) if the Board breached its duty to adequately supervise SK. http://www.foleygriffin.com/

High Court Clarifies "Loss of Chance" Doctrine

In Massachusetts, victims of medical negligence can recover damages for reduced chance of survival even if the patient's prospect for recovery was already less than 50 percent. The Supreme Judicial Court decision stemmed from a $1 million award to the estate of a man whose doctor failed to diagnose his stomach cancer. The decision is the first time the Massachusetts court has recognized the “loss of chance” doctrine in a medical malpractice case. Unfortunately, New York is far behind and still does not recognize this right.

Playground Injury by Child

On September 7, 2004, the eight-year-old plaintiff was injured at a playground on the New York City Housing Authority's premises when she climbed on an inverted fish tank and the glass broke, causing injuries to her leg. The child's mother testified that the fish tank had not been in the playground the day before, but that it was there when she and the plaintiff arrived late in the afternoon or evening on the day of the accident. Other evidence was offered to show that the fish tank had been in a "drop area" adjacent to the playground for one or two weeks and that a child dragged it into the playground when the plaintiff arrived on the day of the accident. The defendant moved for summary judgment dismissing the complaint. The Court refused to dismiss the case. http://www.foleygriffin.com/

Punitive Damages as Punishment

State Court Upholds Punitive Damages Against Automaker
The family of an 8-month-old boy killed in a 2001 auto accident will receive $13 million in punitive damages from DaimlerChrysler following a Tennessee Supreme Court decision. According to the wrongful-death lawsuit, the defective seat construction in the Dodge Caravan was to blame for the boy’s death.

Lead Paint Poisoning - Jury Verdict - Pain & Suffering

Brooklyn Supreme Court Justice Saitta, in his decision of June 23, 2008 in the case of Solis-Vicuna v. Notias, denied the defendants motion to set aside the jury verdict against them. The jury decided that the plaintiff in the case was entitled to future pain and suffering but not past pain and suffering, which while uncommon was not inconsistent. The plaintiff in the case sued defendants for personal injury resulting from the lead paint poisoning of the child plaintiffs while they lived in defendants' building. The evidence at trial was that the children's pain and suffering caused by the lead poisoning would manifest in the future as developmental deficiencies of their mental and intellectual abilities. The children's expert testified that lead intoxication would become evident as the children grew older. Justice Saitta ruled that the testimony at trial supported the jury's findings that the children will suffer in the future as a result of the lead poisoning. www.foleygriffin.com

Child Hurt On Collapsed Bleacher

On May 19, 2008, Brooklyn Supreme Court Justice Robert Miller decided in the case of Einhorn v. City of New York, that injured students of a Brooklyn private school could continue their lawsuit not only against the City of New York, but against their congregation and their school for the negligent planning, operation and control of a wedding that they were attending. The students were injured when the bleachers they were watching the wedding from collapsed underneath them. The evidence showed that the bleachers were over flowing with people. The Court held that the congregation could be sued because a jury may find that as the organizer of the wedding it had a duty to its invited guests, including the students, to use reasonable and ordinary care to insure against foreseeable risks, which included preventing overcrowding of the bleachers.