April 2nd, 2007

Slip And Fall On Ice/Slush — Case Dismissed

This New York slip and fall case is one that should never have been taken by the attorney:

While attempting to disembark a bus owned and operated by the defendants, the plaintiff slipped on a step which she described as wet and slushy, and fell from the bus. It is undisputed that a heavy snow had fallen several days earlier and that passengers were tracking snow, slush, and water from the ground onto the bus.

In trying to establish liability against the bus company, however, the court ruled that:

under the weather conditions which [sic] existed at the time of the accident, it would be unreasonable to expect the defendants to constantly clean the floors of their buses.

My own feeling is that juries don’t like such cases, and great care should be taken when selecting them. If a sidewalk trap has existed for years it is one thing, but sloppy/slushy conditions bring with it risks that are sometimes unreasonable to shift to another.

On the flip side, an interesting approach to the issue might have been to discuss the flooring of the steps, and the potential use of outdoor carpets or other materials to make the steps slip-resistant in adverse conditions (the way office buildings lay out the mats) but there was no such discussion in the record.

The case is McKenizie v. County of Westchester, from New York’s Appellate Division, Second Department.

March 14th, 2007

Prison Inmate Commits Suicide, And Family Sues

It would be difficult to imagine a more heartbreaking emotion than that of a parent that loses a child to suicide.

From the Asbury Park Press comes this story of a 24 year old man arrested for burglary, suffering from delusions, who hangs himself with his shoelaces while awaiting trial. The parents have brought suit against Monmouth County, which runs the jail, for negligence in failing to keep a constant watch on an individual with known psychological problems that was suicidal:

While suffering from delusions, paranoia and methadone withdrawal, inmate Nicholas E. Organek — who was being checked on every 30 minutes at Monmouth County Jail in Freehold Township — used his shoelaces to hang himself from an exposed pipe in his cell two years ago.

Physicians should have kept him on constant watch status in the jail given his history of suicidal thoughts and previous suicide attempts, according to a federal lawsuit recently filed by his parents.

There are some who like to think that all lawsuits are about “the money” and get their kicks mocking the injured or bereaved. But, while I don’t know these claimants, I think I can safely say that even if they received all the money in Fort Knox, it would do nothing to heal the heartache. Many litigants feel that by holding people accountable for their actions it makes it less likely someone else will suffer the same fate.

Update 3/15/07 –: Just hours after writing about this New Jersey case, I see another one from yesterday’s Albany Times Union about a suicide in an Albany jail, and the mother’s suit against the jail for ignoring repeated warnings that the prisoner would injure or kill himself.

March 13th, 2007

Must Someone Be Negligent In Head-On Collision?

When cars collide head-on in New York, does at least one of them have to be negligent? A jury said no, and the trial court agreed. The case was brought by an injured passenger in one of the cars.

In a ruling last week, the Appellate Division Second Department reversed with this principle of law:

It has repeatedly been held that a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver’s own making, violates the Vehicle and Traffic Law and is guilty of negligence as a matter of law.

Here, the evidence presented at trial demonstrated that the statute was violated by either [car one or car two]. Neither party presented a non-negligent explanation for the accident. Rather, each defendant claimed that although it had been raining and/or sleeting for some time, she did not lose control of her vehicle. In any event, the adverse weather conditions were foreseeable and would not have provided a non-negligent excuse for the collision.

The case was sent back for a new trial. The decision in Sena v Negron is here.

February 27th, 2007

New York Girl Can Sue For Prenatal Injuries

A New York appellate court has ruled that a seven year old girl can sue for injuries she received in utero, before the point she was viable outside the womb.

In Leighton v. City of New York, the school teacher mother was four months pregnant when she allegedly fell as a result of a defective toilet seat. Five minutes after her fall, she felt cramping in her lower abdomen and was taken to Methodist Hospital where she was treated and released. Thereafter the child was born three months prematurely.

The City of New York had argued that the child had no cause of action on the ground that “at the time of the alleged breach of duty [she] was a non-viable fetus,” and therefore, the City did not owe her a duty of care.

As New York’s highest court has not ruled on the subject, the appellate court turned to other precedent. The court noted the Restatement of Torts:

…which states that “[o]ne who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.” This principle is “not limited to unborn children who are viable’ at the time of original injury, that is, capable of independent life . . . [i]f the tortious conduct and the legal causation of the harm can be satisfactorily established” (id. § 869, Comment 1[d]).

The court also went on to distinguish abortion cases, noting:

Abortion cases are generally distinguishable from the instant case, since fetuses which are aborted are not born alive (see generally Group Health Assn. v Blumenthal, 295 Md 104, 453 A2d 1198). However, if the abortion fails and causes injury to the fetus who is later born alive, the child may have a cause of action sounding in medical malpractice to recover damages for the injuries sustained (see Sheppard-Mobley v King, 4 NY3d 627).

Justice Gloria Goldstein wrote for a unanimous four judge panel of the Second Department.

February 26th, 2007

Car Accident Lawsuit, Based on Dumpster in Street, Dismissed by Appellate Court

In this personal injury case arising from a car accident, the driver apparently took a turn on a wet road at about 35 – 40 mph and hit a dumpster, of the type seen at right. The accident occurred in a “dimly lit” area that was “in a part of the street that cars would normally drive on.” While there was little doubt the driver was negligent, issues arose in this suit by a passenger as to the company that placed the dumpster:

Was the dumpster in the roadway?
Is there any liability due to the dumpster not having reflectors?

A divided panel of the Appellate Division, First Department held in Smalls v. AJI Industries that summary judgment should have been granted to the dumpster owner. In doing so, they seemed to be resolving issues of fact that properly belong to a jury. The dissent from Justice Tom has, in my opinion, the more persuasive argument:

Resolving several issues of fact as a matter of law, the majority concludes that because the driver was negligent in the operation of the motor vehicle, other defendants cannot be held accountable regardless of the location and condition of the dumpster. Because the record contains evidence that the dumpster was located “in a part of the street that cars would normally drive on,” and was unseen until virtually the moment of impact, a trier of fact could reasonably conclude that the owners of the refuse container were negligent in placing it in an unsafe location and failing to equip it with reflective tape or other markings to render it discernable to motorists. Thus, the question of defendants’ relative culpability in contributing to plaintiff’s injuries is properly reserved for trial.

Questions of fact need to be left for juries. Here, simply because one defendant had clear liability (speeding, losing control of his car), the court has taken the issue of liability away from someone else who may also share in the fault.