New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits

 New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits. Read the story here.

New York City Council abolishes qualified immunity

Yesterday, the New York City Council passed legislation that will effectively end qualified immunity for police officers; thus removing one of the largest impediments to holding officers personally liable for violating citizens’ civil rights, several local news outlets reported.  In doing so, New York became the first city in the country to abolish the defense.  Law & Crime has more information here.

New York expands category of people who can recover for emotional distress from witnessing someone else's accident

As you probably know, in most jurisdictions a plaintiff has a cause of action for emotional distress based on having witnessed someone else suffer an injury even if the plaintiff is outside the zone of danger (within which the plaintiff would be in danger of physical injury) if certain conditions are met. 

New York, however, is not one of those jurisdictions.  Instead, New York still follows the minority approach.  Thus, in NY, plaintiffs seeking to recover for emotional distress from witnessing someone else’s accident must show that they (the plaintiffs) were within the zone of danger and in danger of physical injury at the time of the accident and that the person who suffered the injury must have been an “immediate family member.”

I am writing about this today because about two weeks ago, the New York Court of Appeals (the highest court in the state) expanded the category of people who can recover by recognizing that grandparents are “immediate family members.”  

It should be clear that the opinion did NOT extend the reach of possible liability to people outside the zone of danger, but it did expand the category of people who can recover if they are within the zone of danger.

The case is called Greene v. Esplanade Venture Partnership.  You can read the opinion here.  Courthouse News and the ABA Journal have more information about the case here and here respectively.

Why hasn't Gov. Cuomo signed the bill adopting the "discovery rule" for the statute of limitations in certain medical malpractice claims?

The New York Personal Injury Law Blog has a good (and short) discussion of a bill waiting to be signed that would adopt the so-called discovery rule for certain medical malpractice cases.  Before we go any further, let me confess that I am surprised there is a need to pass a bill for this to begin with!  I would have thought that by now all states have adopted the discovery rule; but evidently, I am wrong.  And what is worse is that the bill does not proposed adopting the rule for all cases. 

As explained in the article, the law "mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases [to] the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred.  In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold. But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired."

You should read the full article here.  Among other things, it discusses how the current state of medical insurance business does not explain the hesitation to sign the bill.

Court upholds the so-called "baseball rule" in case against New York Yankees; rules no liability for injury caused by foul ball

Not too long ago, I posted a story about a recently filed claim against the Chicago Cubs by a fan injured by a foul ball.  The claim will not be an easy one to support given the current law in Illinois but also the long standing trend in the rest of the United States.  This trend, which typically holds the defendants only have a limited duty to a relatively small number of spectators, was reaffirmed recently in New York in a case that had been filed against the New York Yankees.  In that case, a state appeals court in Manhattan ruled that the baseball team was not responsible for a fan's foul ball-related injuries at a 2011 game.  Bob Van Voris, a legal reporter for Bloomberg News, discusses the story here (8 minute audio). 

It sounds like the plaintiff will appeal the decision.  If he does, it is possible the state's highest court may reconsider the validity of the baseball rule.  Stay tuned.

Bill to adopt discovery rule as part of statute of limitations fails in New York

The New York Daily News is reporting that a bill to adopt the discovery rule for med mal cases in New York failed to be approved by the legislature.  The bill would have tolled the current 2 1/2 year statute of limitations until the plaintiff discovered the alleged malpractice.  New York is one of only six states that does not follow the discovery rule in this context. 

Thanks to the TortsProf blog for the update.

NY Court of Appeals reaffirms rule that immunizes dog owners for injuries caused by their negligence in handling their dogs

Eric Turkewitz, of The New York Personal Injury Law Blog, has a very interesting post on a recent decision by the NY Court of Appeals (the highest court in the state) on a topic I have written about in the past - the possible liability of a dog owner.

The facts of the case are relatively simple.  The defendant allowed his dog to run around in Central Park, and later called it to come back.  The dog bolted across the road exactly as commanded but unfortunately into the path of a bicyclist who suffered an injury as a result.  The plaintiff sued the dog owner for negligence.  Simple enough: the owner was negligent in either allowing the dog to run unleashed or in the way he called it back without taking precautions, and caused an injury as a result.

Prima facie case, right?   Not so in New York, where courts, for some reason, do not recognize causes of action for negligence in cases of injuries caused by pets, although they do in cases of injuries caused by other animals.

Instead of recognizing how illogical the current state of affairs is, however, the court reaffirmed its position and decided to continue to adhere to a rule that essentially provides immunity to dog owners who cause injury with their negligent handling of their animals.

The case is Doerr v. Goldsmith  and it is available here.  In his post, Turkewitz briefly comments on the concurring opinion and one of the dissenting opinions and I agree with him entirely.  The concurring opinion's reasoning is unpersuasive and the dissenting opinions are much more reasonable, logical and consistent with basic principles of tort law.  As Chief Judge Lippman, in dissent, points out, the position taken by the court, "serve[s] only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident."

Also, as pointed out by Judge Fahey, who also dissented, "We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."

I agree.

New case filed in NY alleges death was caused by Red Bull caffeinated drink

As you probably know by now, there has been a good deal of discussion about whether it is possible for caffeinated drinks to contribute to, or cause, someone's death.  (For my posts - and more links - on the issue go here, here, here, here, here, here, here and here.)  Several cases have been filed over the issue, all of them involving young victims.  Until now.  The family of a 33 year old New York man has filed a wrongful death lawsuit against the makers of Red Bull, claiming that side effects of the energy drink caused him to suffer a fatal heart attack. AboutLawsuits has a summary of the complaint and some background information here.

For a better and more insightful comment you can read Max Kennerly's post here.   He provides a detailed review of the complaint and the issues it raises.   He concludes the design defect claim is weak but the warning one is a bit stronger.

One 250 ml can of Red Bull Energy Drink contains 80mg of caffeine, about the same amount of caffeine as in a cup of coffee. The defendant, no doubt, will use this fact to argue the product is not any more dangerous than coffee.  The problem is that Red Bull is marketed differently than coffee.  Kennerly's post discusses some of the marketing in Red Bull's own website and links to at least one scientific study that explores he consequences of the consumption of Red Bull.

As if that wasn't enough, though, there is another interesting aspect to the complaint.  The complaint asked for $85 million in damages, when the law in New York bans requesting for specific amounts of money in complaints.  As Eric Turkewitz argues when a lawyer asks for a specific amount in a complaint "[e]ither the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue."

Eric's post is worth reading here.  He goes one to argue, correctly in my view, that the emphasis on the amount of the claim detracts from the seriousness of the issue.  The story now becomes one about how much money the plaintiff's lawyer wants instead of one about whether a product is in fact dangerous or whether the defendant should change the way it markets the product.

New York's erroneous approach to assumption of the risk in golf cases

Golf fans probably enjoyed watching the duel between Phil Mickelson and Bubba Watson this weekend. (Watson won by one stroke, in case you care.) Mickelson played very well and could have won, but he missed a couple of close putts and at one point hit a ball off the tee that went off target and hit a spectator. What does this have to do with torts? It reminded me that I had not yet reported on the decision of a case I have been following for over a year!

Long time readers of this blog will remember that back in April of 2009 I reported on a case called Anand v. Kapoor in which the court discussed the issue of whether a golfer can be liable for his conduct on the golf course if this conduct creates an unreasonable risk of harm to others. In the end, the court held that the voluntary decision to participate in the game means that golfers assume the risk of injury. As I said last year in my original post on this case, I disagree with this holding as a torts professor and as a golfer!

The court's decision is available here. My original comments about it is availble here and here. The case was appealed and last December the Appeals Court issued its ruling. In a 2 page long opinion that adds nothing to the one by the lower court, the court affirmed. I still don't like the result, but because the new opinion adds nothing, I will not repeat my objections to the analysis here. You can read my older posts on the subject mentioned above. For more go to the Wall Street Journal Law Blog and to Jonathan Turley's blog.

New York's erroneous approach to assumption of the risk is back in the news

Long time readers of this blog will remember that I have criticized New York courts on more than one occasion for their sloppy analysis when it comes to the concept of assumption of the risk. See here and here, for example.  The first of these cases, about which I reported on back in April of 2009 is back in the news because the Court of Appeals just heard oral arguments. I am hoping the Court corrects the mistake.

The case is called Anand v. Kapoor and it is available here. My original comment about it is availble here. This is the case in which the New York state Appellate Division, Second Department, discussed the issue of whether a golfer can be liable for his conduct on the golf course if this conduct creates an unreasonable risk of harm to others.

In the end, the court held that the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. 

As I said last year in my original post on this case, I disagree with this holding as a torts professor and as a golfer!

Sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence ... unless what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.

 For my full comment on the case go here. For more on the case go to the Wall Street Journal law blog.

UPDATE (January 31, 2011):  The Appeals Court has affirmed the lower court.  Go here for my comments.

New York court adds to the confusion re assumption of the risk

Long time readers of this blog will remember that I have criticized New York courts on more than one occasion for their sloppy analysis when it comes to the concept of assumption of the risk. See here and here. Now comes news of yet another case from New York that adds to the confusion. In a case called Ballou v. Ravena-Coeymans-Selkirk School District (available here), the court held that although a cheerleader assumes some risk when practicing stunts with her squad, her participation in the potentially dangerous activity is not a complete defense by her school district for liability for the serious injuries she suffered and that "[s]chools are required to exercise reasonable care to protect student athletes from unassumed, concealed or unreasonable increased risks." The decision on this case may be irrelevant now that, just a few days ago, NY's highest court held that assumption of the risk was not a valid defense if the plaintiff is a minor. See here. But to the extent that it adds to the debate on the issue of assumption of the risk, it follows the wrong type of analysis I have criticized in the past. What I have argued in the past is that courts in NY use the "primary assumption of the risk" analysis to support the conclusion that a plaintiff is unable to satisfy the prima facie element of duty. This has nothing to do with assumption of the risk, which is a an affirmative defense based on an evaluation of the plaintiff's conduct. Using the phrase "primary assumption of the risk" to refer to cases in which the issue is whether there is a duty is confusing (at least). The Ballou case reported today follows this line of reasoning when it holds, as quoted above, that "[s]chools are required to exercise reasonable care to protect student athletes from unassumed, concealed or unreasonable increased risks." Note what this statement actually says. It says that under the circumstances of the case the plaintiff can support a claim that the defendant has a duty to exercise reasonable care. In other words, once again, the court is using the language of assumption of the risk (supposedly an affirmative defense) to reach a conclusion related to an element of the prima facie case. The issue in the case was whether the defendant had a duty, not whether the plaintiff assumed the risk. Until NY courts gets this distinction straight, they will continue to make the same mistake. For more on the story, go to Law.com.

New York court holds assumption of the risk does not apply against children

Last Tuesday, in a case called Trupia v. Lake George Central School District, New York's highest court refused to recognize the doctrine of primary assumption of risk as a defense against liability for injuries suffered by a 12 year old. The court rejected the attempt of the Lake George Central School District to amend its answer to a negligent supervision suit to assert assumption of risk in a case where a 12-year-old student was injured when he fell while sliding down a bannister, as he had on earlier occasions. According to a report in Law.com, the court wrote that allowing the amendment would edge the state back toward a time when plaintiffs' contributory negligence was widely invoked by defendants to bar liability for injuries. This being so, the court should have abandoned assumption of the risk as a defense entirely as so other jurisdictions have done. But wait! Assumption of the risk had been abandoned in NY. In fact, the state legislature abolished contributory negligence and assumption of risk as absolute defenses and adopted an approach under which awards are apportioned according to the culpable conduct of the parties. However, assumption of risk survived as a bar to recovery for organized sports and recreational activities, such as skiing or horseback riding, where participants freely assume a known risk, negating the duty of defendants to safeguard them. I have criticized that aspect of the application of the assumption of the risk doctrine by NY courts here and here. In Trupia, the court reaffirms its approach to allow assumption of the risk as a defense in certain cases while denying its use to the facts of that specific case.

New York court gets assumption of the risk wrong, again.

Some time ago, I argued that an appellate court in New York got it all wrong when applying the concept of "assumption of the risk" in a case involving an injury on a golf course. (See here.) Now comes news of a new case, this time involving a skiing accident, in which a different division of the court makes the same mistake. Of course, it is not necessarily the court's fault in that it is simply applying the precedent in the jurisdiction, but at some point, someone should realize the precedent makes no sense.

Once again, the court was applying the so-called "primary assumption of the risk" doctrine. In this case, a 17 year old skier was injured while attempting to execute a maneuver over a rail on the "park" section of a ski area. He sued arguing that the rail posed a concealed danger to skiers because it was not "skirted," meaning its vertical support bars were not covered or cushioned. However, a unanimous 3rd Department panel held that under the doctrine of primary assumption of risk, the defendant's obligation was to make the conditions of performing an inherently risky maneuver like rail sliding as safe as they appear to be, not as safe as it could be.

That is the problem. The court is essentially holding that the plaintiff is unable to satisfy the prima facie element of duty. This has nothing to do with assumption of the risk, which is a an affirmative defense based on an evaluation of the plaintiff's conduct. Using the phrase "primary assumption of the risk" to refer to cases in which the issue is whether there is a duty is confusing (at least).

Here is another example: "If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty." Again, if the conclusion is that the defendant has performed its duty, then the court is simply saying that the plaintiff can't establish the element of breach of duty, which, again, has nothing to do with assumption of the risk.

Yet another example: "Claimants presented no evidence that the industry or any regulating body had adopted any standards regarding the use of skirting on rails or that ski parks normally adhered to the practice of placing skirting on all rails, including low difficulty rails such as that at issue." Here the court is going back to the question of duty. By looking at the lack of uniformity in the industry custom, the court is saying the plaintiff has no evidence to support the duty he wants the court to impose on the defendant... and, do I need to say it again?... this has nothing to do with assumption of the risk....

The case is called Martin v. State of New York.

Duty while playing golf?

Law.com has a story today about a case from New York that involved a number of interesting questions in the context of one of my hobbies.

The story starts when three friends went to play golf. After each had hit his first two shots toward the first hole they separated and went to look for their balls. According to the decision, the defendant then hit an errant shot that hit one of his friends in the left eye causing severe injuries. The defendant claimed he shouted out a warning when he realized where the ball was headed, but neither of his companions heard a warning. The Trial Court dismissed the case on grounds that the defendant was not negligent and that the plaintiff had, in any case, assumed the risk of injury through his voluntary participation in the sport. The New York state Appellate Division, Second Department, affirmed holding that a golfer did not have a legal duty to yell "fore" after taking a shot that eventually caused the plaintiff's injury.

Millions of people play golf in the US every year and accidents like this one are, actually, not unusual. To avoid them, golfers know, or should know, the universally accepted practice of yelling the word "fore" as a warning to others to protect themselves from errant shots.

One interesting question presented by this case is whether a golfer can be held negligent for his conduct on the golf course if his conduct creates an unreasonable risk of harm to others. I don't see why not, and there is case law that supports my position. The other interesting question is whether the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. I don't think so; and, thus, I disagree with the ruling of the court here.

The 3-1 Second Department majority affirmed a lower court's dismissal of the claim, holding that, given the circumstances of the accident, the defendant could not have reasonably anticipated that the plaintiff was in any danger from his shot.

Although not very eloquently expressed, what the court is trying to say is simply that the defendant was not negligent. There was no evidence that showed he did not exercise reasonable care before, while or after taking his shot. If that was all, this case would be totally routine.

But, unfortunately, that is not all.

The Court then went on to say, that even if the defendant had been negligent, the case had to be rejected because the risk of being struck by a misdirected shot is an "inherent" part of golf and that the plaintiff "assumed the risk" because voluntary participants in sporting and recreational activities are deemed to have consented to "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."

This is an example of confusion about the concept of assumption of the risk ... and about the game of golf.

First of all, sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. In skiing there is an inherent risk of falling, but courts recognize claims against other skiiers if their negligence causes other skiiers to fall. The same should be true of golf.

Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence. ....UNLESS what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.

Yet, that is precisely what the court seems to be saying when it says that "to conclude that the defendant can be held 'liable' in tort for a poorly-executed golf shot because he may have negligently failed to shout 'fore' is inimical to the rationale underlying the doctrine of primary assumption of the risk, and at odds with the public policy goal for its adoption" -- to encourage "free and vigorous participation" in sports and recreational activities."

I disagree with that as a torts professor and as a golfer!

It is certainly not frivolous to argue that a golfer is negligent if he or she does not take proper care to make sure he or she knows where the other golfers in his or her group are before taking a shot and, if they are in the way, if he or she fails to warn them that he or she is about to take the shot. As a golfer, this is one of the first things you learn to do, precisely because you know how dangerous it would be to hit someone else.

Yet the court did not give this argument much importance. The Court found that the "carelessness" of failing to follow these procedures "does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf." Again, I disagree. Justice Cheryl E. Chambers argued in a signed dissent that there was a question of fact as to whether the defendant's violation of golfing procedures unreasonably increased the risks to other competitors.

The case is Anand v. Kapoor, available here.

UPDATE (Nov 18, 2010): The court of appeals heard oral arguments.  Take a look here for my reply to a reader's comments on the case.

UPDATE (January 31, 2011):  The Appeals Court has affirmed the lower court.  Go here for my comments.