November 26, 2014

NHTSA Determines that Seat Belt and Drunk Driving Laws Saved over 13,000 Lives in 2012

The United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) recently released a Traffic Safety Facts - Research Note which summarizes the statistical date on lives saved by the implementation of seat belt laws and minimum drinking age laws. The note estimates that over 13,000 lives were saved by these provisions. The NHTSA is the division of the U.S. Department of Transportation which is responsible for highway and road safety. It is mandated with researching traffic safety measures, providing information, and forming regulations to make the roads safer.

The NHTSA considers lives saved to be one of the basic measurements of how effective safety devices, such as seatbelts, laws and regulations surrounding traffic safety are. They calculate the lives saved by comparing rates of compliance with the various laws and device usage numbers with changes in motor vehicle fatalities. Of course it is important to keep in mind that the numbers used to calculate the lives saved are only estimates, as it is impossible to know exactly what happened in every fatal accident and whether the lack of use or compliance with the relevant safety tool was the cause of the fatality.

The NHTSA estimated that in 2012 the use of seat belts in passenger vehicles saved approximately 12,174 lives up from 11,983 lives in 2013. They also predicted that if 100% of people used seat belts 3,031 lives would have been saved. This implies that there is still work to be done to stop preventable fatalities. As of 2012, forty nine states and the District of Columbia had seat belt laws in place. In thirty two of these states and the District of Columbia had primary laws requiring the use of a seatbelt. A primary seat belt law is one in which a car may be pulled over by the police and the driver fined solely for not wearing a seatbelt. In the remaining nineteen states the seat belt laws are what are referred to as secondary law states. In a secondary law state there must be another reason to pull the vehicle over. Motor vehicles in secondary states cannot be pulled over solely because their occupants or driver is not wearing a seatbelt. Statistics released by the NHTSA have shown that in states with primary laws concerning seatbelts the rate of fatalities involving injuries to non-restrained persons is less than in secondary state laws. This implies that there is a positive value in having stricter seat belt laws and particularly in having stricter enforcement measures for those laws.

Another measure of the effectiveness of road safety laws is looking at fatalities prevented due to minimum drinking age laws. The NHTSA estimates that minimum drinking age laws saved 525 lives in 2012. The NHTSA calculates the minimum drinking age laws effectiveness overall to be 13%. It does so by looking at a target age range, in this case 18-20 year olds, and calculating the reduction in involvement of those persons in fatal crashes. They look not only at the death of persons in that target age range but at all deaths that come from crashes and accidents when the driver is in the specified age range. So any accident where a person died and the driver was between 18-20 would be included in the calculation. Minimum drinking age laws are put in place by the states but the Federal Government incentivizes states to keep the minimum drinking age 21 or over by tying Federal funding of highways to it through the National Minimum Drinking Age Act. If a state does not implement a minimum drinking age of 21 or above that state will lose part of the highway funding it receives from the Federal government.
More information about estimating lives saved and the methodologies used in the NHTSA's report can be found in the Lives Saved FAQs. The Lives Saved FAQs goes into much more detail about the purpose of using lives saved as a measurement of effectiveness as well as into the methodologies of how the figures were arrived at.

The full results of the survey can be found on the NHTSA website.

November 26, 2014

Rate of Cell Phone and Electronic Device Use While Driving Remains Steady, Reports NHTSA

The United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) recently released a research note on the prevalence of drivers using hand held devices while driving. NHTSA is tasked with keeping the roads safe. It does so by conducting research on driver behavior and traffic safety, enforcing safety performance standards for motor vehicles and motor vehicle equipment and providing information to consumers and other road users.

The note is based on a survey by the National Center for Statistics and Analysis which along with NHTSA is part of the National Highway Traffic Safety Administration. The survey, the National Occupant Protection Use survey (NOPUS), is the only nation-wide probability based survey of device use conducted in the United States. The NOPUS is based on in-person observation taken by surveyors at intersections during daylight hours. The information is only recorded from stopped vehicles by trained volunteers and the data collected includes such information as age, gender, race and vehicle type (car or truck).

Perhaps counterintuitively, the NOPUS found no statistically relevant increase in the use of drivers text messaging or visibly manipulating electronic devices with the rate increasing only marginally from 1.3 percent in 2011 to 1.5 percent in 2012. Driver's hand-held cell phone use remained steady at 5 percent. The rate of drivers holding a phone directly to their ear while driving also stayed at 5 percent. This figure translates into 66,000 drivers driving while holding a phone to their ear at any given daytime moment during 2012. The statistics also mean that at any given daytime moment in 2012 9 percent of drivers were using some type of device.

distracted driver.jpgThe NOPUS also took into account the demographics of drivers. It found that there was a significant difference depending on gender with female drivers being more likely to be using a cell phone while driving. 6 percent of female drivers held a phone to their ear while driving while only 4 percent of male drivers were observed to be holding a phone to their head while driving. It also found that cell phone use while driving was also higher among younger drivers. Drivers 16-24 years old were most likely to be using a cell phone while driving while those 70 years or older were the least likely to be using a cell phone while driving. Six percent of drivers 16-24 admitted to holding a phone to their ear while driving while only one percent of drivers 70 or older were seen doing the same thing making the age gap significantly wider than the gender gap when it comes to predicting who is talking and driving.

The age gap however was much more apparent when looking at drivers who were visibly manipulating an electronic device while driving, the category that includes text messaging. There was a sharp drop off in drivers who admitted to visibly manipulating a phone while driving based on age, with 3 percent of drivers aged 16-24 doing so, 1.4 percent of drivers 24-69 and only 0.2 percent aged 70 and older. This gap did not occur when looking at drivers speaking with a visible headset where the percentages were very close between the different age groups, a small gap only occurring between the 24-69 and the 70 plus groups.

As of August, 2013 no state had banned all cell phone use by drivers, however eleven states, including New York, had banned the use of cell phones without some kind of hands free device. A driver can be pulled over solely for using a phone without a hand held device, without there being any other traffic violation. A total of forty one states, including New York, and the District of Columbia ban text messaging while driving. In New York the fine for texting or using a cell phone without a hands free device ranges from 50 to 150 dollars for a first offence plus points added to the drivers license.

Distracted driving can lead to a number of dangerous situations, including motor vehicle accidents, pedestrian collisions, even death resulting from a serious accident during which the driver was using a mobile device. Although not all states have implemented tougher distracted driving laws, maintaining focus while behind the wheel is in the best interests of all those sharing the road.

The NHTSA study can be found here.

November 26, 2014

Seat Belt Use Remains Higher In States With Stricter Laws on Seat Belt Use

Recently the United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) released a Traffic Safety Facts - Research Note on the topic of seat belts. It reported that nationally in 2013 seat belt use reached 87%. This was up from 86% in 2012, but considered statistically insignificant. The data used in the research note was gathered from the National Occupant Protection Use Survey (NOPUS) which is conducted annually by National Center for Statistics and Analysis of the National Highway Traffic. It is the only probability-based nationwide survey, conducted annually, which reports on seat belt use. The NHTSA was established Highway Safety Act of 1970 as the successor to the National Highway Safety Bureau is a part of the U.S. Department of Transportation. Among its other tasks it collects and publishes statistics and studies on highway and vehicle safety.

seatbelt.jpgCritically, the survey showed that since 1995 there has been an upward trend in seatbelt use. In 1995 only 60 percent of vehicle passengers and drivers wore a seatbelt regularly. This upward trend directly mirrors a decrease in daytime percent of unrestrained passenger vehicle occupant fatalities. Or put more simply as the rate of people wearing seatbelts increased the number of fatal accidents occurring during the day involving people not wearing seatbelts decreased.

Also of note was that in 2013 the number of people wearing seat belts in heavy traffic increased from 89 % in 2012 to 90 % in 2013, an increased deemed statistically significant. This also implies that people are more likely to be wearing a seatbelt when they are driving in heavy traffic. Also of note was that seat belt use in the Northeast increased by four percent from 80% in 2012 to 84% in 2013, while remaining well under the national average of 87%. The highest rates of seat belt use were in the Northwest with a 93 % rate of use.

The survey also found a direct correlation between states with seatbelt laws and those without and between states where a car can be pulled over solely for not using seat belts ("primary law States") as compared with the States with weaker enforcement laws ("secondary law States") or without seat belt laws. In primary law States a vehicle can be pulled over and ticketed only for the driver or passengers not wearing a seat belt, while in secondary law States the driver or passengers may be ticketed but only after the vehicle is pulled over for another reason such as speeding or having expired tags. States with primary law States saw an average usage rate of 91 % while states without any seat belt laws had an average usage rate of only 80 %.

As of May, 2013, 32 states, and the Distinct of Columbia, had primary laws regarding seat belt use, 17 had secondary laws while only one state, New Hampshire, as of May, 2013, had no laws regarding seat belts. At that time in New Hampshire it was legal for all occupants over the age of 18 to not wear a seatbelt.

New York State is a primary law state with laws requiring the use of seat belts, meaning that in New York State a vehicle may be pulled over only for the failure of its driver and or occupants to wear a seat belt. New York State's Occupant Restraint Law requires seat belts for adults riding in motor vehicles and other types of restraints, including booster seats, for children riding in motor vehicles. Front seat passengers over 16 may be fined 50 dollars for not wearing a seat belt. There are additional regulations for those driving or riding in a car driven by a driver holding a learners license. The driver is responsible for ensuring his or her passengers comply with the law and he or she may be levied an additional fine plus points on his or license for failure to comply.

More information can be found here.

November 26, 2014

NHTSA Reports a Increase in Alcohol Impaired Traffic Fatalities in 2012

According to the United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) thirty-one percent of fatal traffic accidents included a driver who had blood alcohol concentration over 0.8 grams per deciliter (g/dL). A blood alcohol concentration over was over 0.8 grams per deciliter is considered to be impaired. This amounted to 10,322 fatal crashed involving impaired drivers in 2012 alone. This includes crashes involving the impaired drivers of motorcycles. This number represents an alarming increase in fatalities of 4.6 percent over 2011 or to put it in even more alarming terms an alcohol-impaired-driving fatality occurred every fifty one minutes in 2012.

The NHTSA was established Highway Safety Act of 1970 as the successor to the National Highway Safety Bureau is a part of the U.S. Department of Transportation and is mandated with reducing deaths, injuries and economic losses resulting from motor vehicle crashes. It does so by conducting research on driver behavior and traffic safety, enforcing safety performance standards for motor vehicles and motor vehicle equipment, grants to state and local governments to enable them to conduct effective local highway safety programs, and providing information to consumers and other road users.

beers.jpgAmong the information provided is a comprehensive rundown of traffic safety facts released annually including date on drunk or impaired driving. It can be found online here. It recently released the statistics from 2012 which showed an alarming increase in the rate of impaired driving. It is important however to note that it is impossible to tell if all of the fatalities in question were caused by impaired driving. However, the large number of fatalities where a driver was found to be impaired, thirty-one percent of all fatalities, points to a strong likelihood that impaired driving and fatalities are linked. Of all the people who died in accidents involving an alcohol impaired driver sixty five percent of those who died were drivers with a blood alcohol content of over 0.8 percent. Twenty-seven percent were other people driving or riding in motor vehicles, of which sixteen percent were passengers in the same vehicle as the impaired driver, and the remaining eight percent were people not in a motor vehicle.

These statistics suggest that the greatest risk from driving while impaired by alcohol is to the impaired driver followed by passengers riding with the impaired driver. While alcohol impaired driving fatalities have overall declined twenty one percent in the last ten years, the uptick in 2012 is worrying. As of 2012 all the states in the union as well as the District of Columbia and Puerto Rico had made it illegal to drive with a blood alcohol content of 0.8 or higher. Time of day also correlated with alcohol impaired driving fatalities, with four times as many fatalities happening at night as occurred during the day. Age also correlated with fatality rates, with thirty-two percent of fatalities having a driver age 21-24, and twenty-nine percent involving a driver aged 25-34. Fatalities were also more common with male drivers as opposed to female drivers.

The NHTSA also breaks down the number of fatalities by state. New York State had 1168 fatalities. Of those, sixty-four percent did not involve alcohol impaired drivers, matching the national average. The number of fatalities increased along with the blood alcohol content of the driver, meaning that the higher the blood alcohol content the more risk of a fatality.

The takeaway from this seems to be that while the overall trend is towards less drinking and driving, 2012 saw a slight uptick in drunk driving fatalities and there is still an alarming number of fatalities involving drivers with well over the 0.8 limit. For those seeking more information about traffic fatalities can be obtained by writing to the National Center for Statistics and Analysis (NCSA), NVS-424, 1200 New Jersey Avenue SE., Washington, DC 20590 or by contacting the NCSA at 800-934-8517 or NCSAweb@dot.gov.

November 26, 2014

New Trial Ordered in Brooklyn Car Accident Case After Jury Verdict Sheet Deemed Unclear

caraccident.jpgIn Ki Tak Song v Oizumit the Appellate Division, Second Department reversed a jury verdict for the defendants and ordered a new trial after it found that the jury was confused when filling out its verdict sheet. The Plaintiff, Ki Tak Song, was suing the plaintiffs Yoko Oizumi and Daniel Oizumi for personal injuries he allegedly suffered in a car accident. Daniel Oizumi was driving Yoko Oizumi's vehicle when it allegedly struck Song's vehicle from the rear. The jury originally found that the defendant's were negligent but that their negligence was not a substantial factor causing the injury to Song. Song's appeal was based on the fact that the jury had filled out two copies of the verdict sheet and that there was evidence that they were confused as to the questions on the first sheet.

A verdict sheet is presented to jurors after the completion of a trial and it presents them with questions about the case which they must answer. In this case the answers on the first verdict sheet were inconsistent. The court had, without further instructions to the jury and without consulting the parties, given the jury a second verdict sheet despite the fact that the answers on the first sheet were internally inconsistant. The plaintiff appealed claiming that the verdict was a product of jury confusion and is inherently inconsistent as a matter of law.

After the verdict was entered the court informed the parties that the verdict was based on answers given by the jury on a second verdict sheet because the jury had been confused by the first verdict sheet and had made a mistake on it. The court told the parties that they had instructed the court officer to give the jury another copy of the verdict sheet to the jury without convening the jury or speaking directly to it. Therefore there was no chance for the court to give the jury instructions on properly filling out the sheet or on the meaning of the questions contained within it. There was also no chance for the parties to challenge any instructions made or examine the first verdict sheet.
The court at this time told the parties that the jury was "scratching out on the first page" and that the jurors would be initialing the mistakes it had made on the first sheet. However, when the party's saw the first verdict sheet after the verdict was entered they saw that what the jury had done was not a simple mistake but a change which covered up an inconsistency on the first sheet. The first sheet asked the jurors "Were the defendants negligent?" next to the question was one signature, normally all jurors will check off either yes or no and sign. Also next to the question all the jurors had put an X next to the answer "no" and a check mark next to the answer "yes." The "yes" was then crossed out and initialed next to.

The form also asked the jurors "Was the negligence of the defendants a substantial factor in causing the accident?" Next to this question the jurors had written an X next to no. However, the instructions told them that if they decided the defendant's negligence was not a substantial factor in causing the accident then they should not answer the subsequent questions including one which allocated blame between the defendants and the plaintiff. They went on to answer these questions, allotting 20% of the blame to the defendants. This implies that the instructions on the form were unclear.

While juries have a right to alter their verdict if it is recorded incorrectly so that it matches their true intentions in this case the court found that because the first sheet was internally inconsistent, and because the jury had failed to initial several of the questions, the Supreme Court had erred in failing to direct the jury to reconsider its original verdict before giving the second verdict sheet to the jury. Therefore the Appellate Court ordered that the judgment be reversed and the case sent for a new trial.

Ki Tak Song v Oizumi, 2014 NY Slip Op 05775

November 25, 2014

Second Department Allows "Expert" Testimony in Brooklyn Slip and Fall Action

On September, 24 the Supreme Court, Appellate Division Second Department overturned a decision by the Supreme Court, Kings County which granted a motion made by the defendants in that case for judgment as a matter of law pursuant to CPLR 4401. CPLR 4401 allows either party to ask for a judgment as a matter of law at any time after the close of the evidence presented by an opposing party. A judgment as a matter of law is a judgment made by the court that the non-moving party's evidence is insufficient to reasonably support its case. The original Supreme Court case was between Chayeh Fleisher and the City of New York. Fleisher claimed that she had slipped on a sidewalk in Brooklyn because the pavement was raised or uneven, and that the City was responsible because it had known of the defect in the sidewalk and had not fixed it in a timely manner. The City is only legally responsible for hazardous conditions created by sidewalks if it has notice of the condition long enough before the accident to be able to fix the problem.

concrete.jpgAccording to Fleisher, the City was made aware of the defect in the sidewalk via a map given to the city by the Big Apple Pothole & Sidewalk Protection Committee. In order to successfully sue the city for injuries caused by her fall, a plaintiff must prove, as per the Administrative Code of the City of New York § 7-201 (c) (2), that the city had prior knowledge of the defects in the sidewalk at that specific location and a sufficient amount of time to fix the problems. The Supreme Court denied the plaintiff's application to admit the Big Apple maps into evidence and further denied her request to admit the maps through the testimony of Irvin Loewenstein, a former Director of Sidewalk Management, and former Director of the Prior Notification Unit of the City's Department of Transportation. It also denied her request to have Loewenstein qualified as an expert in Big Apple maps so he could testify about the contents of the maps at the trial.

The Appellate Court ruled that because Lowenstein had worked for Big Apple Maps on behalf of the Department of Transportation for many years he could be assumed to have the requisite "skill, training, education, knowledge or experience" for which to be considered a reliable expert. Further they decided that this experience would allow him to lay a foundation for the maps to be entered into evidence. Business records are considered exempt from the rule disallowing hearsay to be admitted into evidence. But in order to be entered into evidence business records, regularly kept records kept in the normal course of business, must have a foundation laid for them. This can be done by someone who is familiar with the records; in this case the Court decided that Lowenstein, because he had worked with the maps while with the Department of Transportation, was properly qualified as an expert witness to lay a foundation for the maps.

The Appellate Court's decision is important because disallowing the maps and Lowenstein's testimony would have significantly affected the outcome of the case. Because the plaintiff was unable to introduce the maps the court found for the defendant on its motion for judgment as a matter of law because there was not sufficient evidence to prove that the city knew about the defect, which is a requirement before recovering from the city in these kinds of personal injury cases. Had the evidence been introduced, and there is precedent in other cases where Big Apple maps have been admitted as evidence, there is a good chance the defendant would have prevailed or at least have been able to satisfy the requirement that the City know of the fault. Because of the Appellate Court's decision the case will go back to the Supreme Court for a new trial in which Lowenstein will be allowed to testify, and the maps will be allowed into evidence.

November 4, 2014

Lax Discipline of Nurses Leaves Vulnerable Populations Open To Abuse

Due to the nature of their work, it is important that nurses' professional conduct is regulated to prevent abuses of power. In New York State, such misconduct is regulated by the New York State Education Department's Office of the Professions. It is in charge of the investigation and prosecution of professional misconduct, while the Board of Regents is responsible for the disposition of disciplinary matters. Penalties for misconduct vary from fines, license suspension to, in extreme cases, the loss of a license altogether. There are, however, questions as to whether the penalties given to nurses who commit misconduct are adequate to prevent further misconduct, and prevent nurses who have problems with drugs and other substances from practicing while intoxicated.

nuse.jpgSummaries of investigations and penalties assessed are available online on the New York State Education Departments website listed by last name and by date. While such summaries do not give very much information about the circumstances of the misconduct, they can provide a general overview of the regulatory process and the range of misconduct dealt with by the Education Department.

The misconduct ranges from nurses who have committed crimes that on their face are not connected with their professional lives, such as driving while intoxicated, to misconduct on the job such as failure to comply with infection prevention techniques. In September, 2014, out of fifty-one cases, eleven dealt with driving while intoxicated and several were for errors in medication administration or maintaining patient records. The prevalence of driving while intoxicated cases may point to a problem with substances in the nursing profession.

This volume of cases, coupled with limited information provided (often a terse paragraph such as "licensee admitted to the charge of failing to witness a patient ingest medication that she was ordered to administer to him"), makes it hard to determine the scope of misconduct and whether the current regulatory framework is doing enough to prevent and punish nurses who commit misconduct. A recent New York Post article entitled "Nurses getting wrist slaps for incompetence, drug use" illustrates the scope of the problem. The Post points out that in the New York City area fifty nurses are disciplined by the Board of Regents each year and many receive nothing more than a slap on the wrist for instances of serious misconduct.

The Post highlights the case of Kathy Dzus who was disciplined for working while high on cocaine. The summary on the Department of Education website reads "licensee did not contest the charge of practicing the profession of nursing while the ability to practice was impaired by drugs." The Post was able to get more information through a freedom of information request while the official site does not go into any degree of detail. Dzus was only given 2 years probation, a 2 year stayed suspension, and a five hundred dollar fine. Because her suspension is stayed she is free to work with patients immediately despite the danger she previously put them in by working while on cocaine.

Dzus is not the only nurse whose penalty appears insufficient given the severity of her misconduct. When asked about the disparity between the misconduct and the penalty, the Board of Education told the Post that the agency does not actively seek out incidents of misconduct, but that it waits to get reports of misconduct before taking action. Given the importance of nurses in patient care and the intimate nature of their work, it appears that a more rigorous process for investigating abuse needs to be in place to prevent nurses who have substance abuse problems from working while intoxicated or under the influence.

October 30, 2014

Case Study: The "Serious Injury" Threshold

Lonnie Gates was rear ended by a truck owned by Sears, Roebuck and Co. and driven by Gene H. Longden. Under New York State's no-fault insurance rule, a person injured in an automobile accident may recover for medical bills and other economic damages from the insurance company covering the vehicle they are riding in, or are hit by, regardless of who was at fault in the accident. This recovery is limited to economic damages up to fifty thousand dollars. The damages recovered from the insurance company are meant to replace the right to sue for damages unless the plaintiff suffers a "serious injury".

Many cases involving the no-fault insurance rule revolve around the definition of "serious injury." New York Insurance Law § 5102 [d] defines serious injury as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." Therefore, in order to have a right to sue, a plaintiff who has been injured must claim that he has suffered a serious injury fitting into this definition.

rear end2.jpgGates sued, claiming that he had been seriously injured in the accident. The defendants, Longden and Sears, moved for summary judgment. To grant summary judgment,the court must determine that no questions of fact exist that must be decided by the jury. The defendants claimed that Gates did not suffer a serious injury and that, if the court found that he had, it was not caused by the accident in question. Gates cross-moved for summary judgment on the issues of liability, proximate cause and serious injury.

The Supreme Court, Onondaga County, denied the defendants' motion for summary judgment, but the Appellate Division, Fourth Department reversed. The Appellate Court however only reversed the Supreme Court's decision to deny summary judgment in part. The Appellate Court found that the Supreme Court did not err in using its discretion not to consider the affidavit of defendants' expert who was a engineer and not a medical doctor. Because the Supreme Court did not consider this testimony, the defendants failed to meet their burden to prove that the injury was not caused by the accident and summary judgment was rightly denied on this point.

The court also ruled that the Supreme Court did not err in denying the defendants' motion for summary judgment as to significant disfigurement. It found that it was a question for the jury whether a large scar on the lower back constitutes a significant disfigurement. A significant disfigurement is defined as a condition caused by an accident that can be seen "as unattractive, objectionable, or as the subject of pity or scorn." The court also found that because Gates had missed six weeks of work while confined to his home following the injury, a case may exist for a significant injury based on a serious limitation.

For the case to go forward to trial, Gates must only provide evidence that there is a question as to whether his injuries fit within the definition of "serious injury" laid out in New York Insurance Law § 5102 [d]. The court's decision in this case means that it is a question that must be decided by the jury at trial whether a large scar on the lower back, or six weeks of confinement and missed work, fall within the definition of serious injury.

Gates v Longden, 2014 NY Slip Op 05744

October 30, 2014

Hospital Not Responsible For Slip and Fall When It Did Not Cause And Had No Notice Of The Danger

Cassondra Williams sued the County of Erie and Erie County Medical Center Corporation after she slipped and fell in a corridor of the Erie County Medical Center while at work. Williams worked for a company that provided food service to the hospital and the corridor in which she fell was used primarily by her employer to delivery food. Building owners have a responsibility to those using the buildings to provide a safe environment. But when suing the owners of a building or space the plaintiff has the burden of proving that the owners either created a dangerous condition or had constructive notice of the condition.

The Supreme Court, Erie County granted summary judgment to the hospital dismissing the case, finding that Williams failed to prove that the hospital had either created the condition or had known about it before she fell. Summary judgment is a decision made by a court that there is no triable issue of fact to be decided. As such the only issue to be decided is an issue of law. Because juries decide the facts and judges apply the law, when no question of fact exists the court can grant a motion for summary judgment. This serves prevent cases in which there is no dispute of fact from going to trial.

To prove that they had not caused the accident the defendants presented evidence that had come to light in a New York General Municipal Law § 50-h hearing. A General Municipal Law § 50-h hearing when a notice of claim is filed against a municipality such as a city, county, fire department, or school district. In a 50-h hearing the parties may be questioned and the claimant may be required to be examined by a physician. Evidence brought to light in a 50-h hearing maybe entered into evidence by either party at a later civil trial. The evidence from such a hearing can form the basis for a summary judgment as it did in this case

The defendants, the hospital and the county, presented evidence that they did not create the danger and did not know about it prior to Williams' accident. Additionally, they presented evidence that they had cleaned the dietary corridor with an autoscrub machine during the overnight shift preceding the daytime shift that Williams worked. Williams arrived at 6:30 am, several hours after the autoscrub machine had finished, giving time for any leftover water to dry. The defendants also submitted evidence that during the daytime shift the main use of the corridor was by the company who employed the plaintiff, and that because of this, contractually, the plaintiff's employer was solely responsible for cleaning and maintenance of the corridor. The plaintiff had testified in the hearing that she did not see any water on the ground before she fell at 9:00 am and that she had not seen any water on the ground before her fall. She claimed that an employee of the hospital, as opposed to herself or one of her co-workers, had spilled the water. The court found that because her employer was in charge of cleaning and maintenance, and because the autoscrub had finished many hours earlier, the hospital had not created the danger.

However, the hospital could still have been found responsible for the accident if they had constructive notice, meaning that they should have know or a reasonable person would have known that there was a dangerous condition in their building. The court laid out the well established law that a dangerous condition "must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant . . . to discover and remedy it." The court found that because Williams did not see the water several minutes before her accident there was no way the hospital could have had constructive notice of the danger. The Appellate Division, Fourth Department, agreeing with the Supreme Court, upheld the decision of the lower court, granting summary judgment in favor of the hospital.

Williams v County of Erie 2014 NY Slip Op 05067

October 29, 2014

Syracuse Police Officer Who Ran Red Light Without Stopping Liable for Injuries To Other Driver

In Ruiz v Cope, the Appellate Division, Fourth Department affirmed a decision by the Supreme Court of Onondaga County to award a man money damages after a non-jury trial against a police officer, Brendan Cope, the Syracuse Police Department, and the county. At the time of the accident Cope was being field trained under a sergeant's supervision. The accident occurred when, shortly before the collision, Cope received a call on his radio alerting him of shots fired. The sergeant supervising Cope turned on the sirens and lights and Cope drove through a red light at the intersection striking the Plaintiff, Chalina Ruiz.

cop car.jpgCope entered the intersection against the light, failing to come to a complete stop. His failure to fully stop at the intersection was a violation of the Syracuse Police Department's rules and regulations. There were conflicting accounts from witnesses and physical evidence, included a forty-five foot skid mark, regarding whether Cope slowed down or looked in the direction Ruiz was coming from before entering the intersection.

In the Supreme Court, Onondaga County the defendants moved for summary judgment, meaning that no issue of fact exists for the jury to decide, claiming Cope's actions did not rise to the level of recklessness under New York Vehicle and Traffic Law § 1104. Vehicle and Traffic Law § 1104 allows authorized emergency vehicles, including police cars, to disregard certain traffic laws in the event of an emergency. This law allows a police car to cross an intersection at a red light if the car slows down as needed for safe operation. However, the law does not "relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others." The police in this case were claiming that there was no question of fact that Cope's behavior was reckless, and that because of this summary judgment should have been granted in their favor by the Supreme Court.

The Appellate Division, Fourth Department, upheld the decision of the Supreme Court. The Appellate Court noted that there were doubts as to whether Cope slowed down to a near stop at the intersection, and as to whether he looked left before crossing the red light. The Court also noted that a question existed as to whether Cope had been reckless, because Cope's view of the intersection was obstructed by buildings, the roads were wet, other vehicles were on the road, and Cope had violated the rules and regulations of the Syracuse Police Department. Therefore, the Court upheld the Supreme Courts decision to deny summary judgment in favor of the police.

At trial the Supreme Court found that Cope had disregarded a known and obvious risk when she crossed the intersection against the light without stopping. The Appellate Department also upheld the judgment of the Supreme Court holding that Ruiz had sustained serious injuries as defined by New York Insurance Law § 5102 (d). This law, often called the no-fault insurance law, restricts lawsuits resulting from automobile accidents to cases of serious injury. The court in this case found that Ruiz had presented sufficient evidence in the form of testimony from her chiropractor to fall within the definition of "serious injury." Insurance Law § 5102 (d) defines serious injury in several ways, one of which is a significant limitation of use of a body function or system for 90 out of 180 days following an accident. In this case Ruiz presented evidence of loss of motion for more than 90 out of the 180 days following the accident.

Ruiz v Cope, 2014 NY Slip Op 05061

October 29, 2014

Appellate Department Upholds Right of Plaintiff to Impeach Doctor Based Upon 1099 Records

In Dominicci v Ford, an appeal to the Appellate Division, Fourth Department from a July 3, 2014 decision by the Supreme Court of Monroe County, the appellate court affirmed the lower courts decision to deny a request from State Farm Automobile Insurance Company to quash a subpoena for records belonging to a doctor working for State Farm. The records were being requested in order to suggest bias on the part of the doctor who often worked for State Farm examining accident victims.

The plaintiff, Limarie Dominicci, was rear-ended by Thomas Ford, who was insured by State Farm. During the trial, State Farm, who was not a party to the original case, retained a doctor to examine Dominicci on Ford's behalf. Under New York law a person may be required to undergo a medical examination when they have put their physical health in question in a trial. In this case, because Dominicci was claiming damages based on injuries sustained in the automobile accident he was required to be examined a doctor chosen by the defendant.

The doctor who examined Dominicci was called to testify during the proceedings on behalf of Ford. Dominicci requested a judicial subpoena duces tecum on State Farm requesting copies of 1099 forms and other employment related papers reflecting payments made by State Farm to the doctor in question. A judicial subpoena duces tecum is a means of compelling the discovery of written documents. State Farm objected to the production of the documents claiming that they were to be used only to impeach the examining physician's general credibility. The plaintiff claimed that the documents were to be used to cross-examine the examining physician at trial with respect to his bias or interest.

justice.jpgIn general, New York States rules of evidence are lenient regarding the admissibility of evidence, allowing evidence to be admitted as long as it is relevant to the case (with certain exceptions). When a witness has a reason to be biased or interested in the outcome of a case that evidence is admissible. One job of the jury is to consider the evidence and decide how much weight to give to any one piece. If a witness has reason to be biased in one party's favor, or is otherwise interested in the outcome of the case, then evidence of this fact is admissible for the jury to consider.

Here, because the doctor was repeatedly being hired by State Farm to examine accident victims, and presumably paid to testify at trial about the examinations, the doctor may have been biased in favor of State Farm. While the production of 1099 forms proving the doctor worked for State Farm does not prove that the doctor was biased towards the insurance company, it may cast doubt upon the doctor's impartiality. Whether this is true is an issue of fact for the jury to determine, but in general this type of evidence is admissible.

The Supreme Court found that it was a well-settled point of law that motions to quash subpoena duces tecums should only be made when the materials being subpoenaed are "utterly irrelevant to any proper inquiry." The party being subpoenaed has the burden of proving the irrelevancy of the requested materials. Questions and requests for documents that show a witness is more or less credible are allowed even in cases where the only purpose is to show the bias of a witness. The Appellate Court, agreeing with the Supreme Court, concluded that the lower court had not abused its discretion in denying the motion to quash the subpoena.

Dominicci v Ford, 2014 NY Slip Op 05081

October 20, 2014

New York State Found Not Liable For Actions of Off Duty Corrections Officer Who Shot Man In Altercation

In its recent decision in Wood v State of New York, the Appellate Division, Second Department upheld the Court of Claims decision to grant summary judgment dismissing a claim of wrongful death against the State of New York, as the employer of an off duty New York State Corrections Officer. New York State was sued in the Court of Claims by the Administratrix of the Estate of Chris Anthony Kenner, who died after being shot while in an altercation with Emilio Maldonado. The Court found that because Maldonado was not acting as an employee of the State of New York at the time of the incident, the State of New York could not be held responsible and the court granted summary judgment in favor of the State.

Employers may be held vicariously liable for the acts of their employees under a theory of law called the doctrine of respondeat superior. The doctrine of respondeat superior makes employers liable for acts committed by employees only when the act is made within the scope of employment. To be considered within the scope of employment, the act must be performed while the employee is engaged in doing business for the employer or activities necessary or incidental to the employers business.

For example if a delivery driver were to hit another car on his way to make a delivery the delivery company who employed the driver could be held responsible for the accident. An employer is not responsible if the employee is acting individually, unrelated to the furtherance of the employer's business. Therefore, if the delivery driver took a detour and got in a fight with a relative the employer would not be responsible for the fight, because it would not be a foreseeable consequence of employing the driver or necessary to the driver carrying out his responsibilities.

gun1.jpgIn this case Maldonado, an off duty New York State Corrections Officer, was driving his own vehicle accompanied by family members when he got into an argument with Chris Anthony Kenner and his brother. At the time of the incident Maldonado was carrying a personal firearm and his badge. At his deposition Maldonado testified that Kenner and his brother had kicked and punched him through the open window of his car, and that when he saw Kenner reaching towards his waistband he drew his weapon. He then testified that Kenner's brother kicked the weapon causing it to discharge killing Kenner.

Maldonado also testified in a related criminal proceeding that he had intended to "cuff" Kenner and his brother and place them under arrest. However, because he never took any affirmative steps to arrest or detain Kenner and his brother, nor did he attempt to stop them when they fled the scene, the Court found that Maldonado was not acting within the scope of his employment when he shot Kenner. The plaintiffs had the burden of proving that there was a triable issue of fact that Maldonado was acting within the scope of his employment. In the Court's opinion, the plaintiffs failed to do this.

Had Maldonado arrested Kenner's brother or ordered the pair to stop while identifying himself as a peace officer there may have been a question as to whether Maldonado's actions were within the scope of his employment. However, because Maldonado was not working at the time of the incident; was driving his own personal vehicle accompanied by family members; was carrying his own privately registered firearm; and did not make any attempt to arrest or detain either assailant, the Court found that he was not acting as a peace officer but in a private capacity. Therefore, the State of New York, as his employer, cannot be held responsible for his actions.

Wood v State of New York, 2014 NY Slip Op 05173

October 20, 2014

Court: Empty Dolly May Create Unsafe Condition When Left Unattended in Store Aisle

In Russo v Home Goods, Inc. the defendant Home Goods, Inc. was accused of creating a tripping hazard by leaving an empty dolly, otherwise known as a "pallet jack" in the aisle of its store. The Appellate Division, Second Department reversed the Supreme Court's finding of summary judgment for the defendant, ruling that a triable issue of fact existed as to whether the defendants had created the unsafe condition.

aisle.jpgDorothy Russo, the plaintiff, was shopping in one of the defendant's Home Goods, Inc. stores when she tripped over the pallet jack. The pallet jack had a shelf on top of it so it could be used to move furniture and other goods around the store. Russo was looking up at lamps on a high shelf when she entered the aisle containing the pallet jack. Several steps into the aisle she tripped over the pallet jack and landed face down on top of it. She testified at her deposition that while she did not know the exact height of the pallet jack it was bellow her knees and close to the ground.

Storeowners have a duty to their customers to maintain their stores in a reasonably safe condition for the benefit of their customers. In order to be entitled to summary judgment the moving party must prove that there are no issues of fact that need to be decided by the jury. When deciding to grant summary judgment, the court must look at the evidence in the light that is most favorable to the non-moving party. In this case the court was required to look at the evidence in the light most favorable to the plaintiff as Home Goods, Inc., the defendant, was moving for summary judgment. The Supreme Court found that because the pallet jack was an open and obvious condition, and not inherently dangerous. Due to this, no triable issue of fact existed to be decided by the jury.

However, the Appellate Court reversed the Supreme Court's ruling because they found that there was an issue as to whether leaving the pallet jack in an aisle where it could easily be tripped over was inherently dangerous. An issue existed as to whether the store had been maintained in a reasonably safe condition. In making this determination, the Court considered that the store had a policy of not leaving pallet jacks unattended in the aisles because of safety concerns. Employees of Home Goods, Inc. had been instructed not to leave pallet jacks unattended and to immediately return them to the storeroom after they had been used. The defendants' manager admitted that the pallet jacks were off limits to customers and that employees had been instructed to keep them in the storeroom specifically because they were a known tripping hazard. The court found when looking to the totality of the circumstances, including the fact that the pallet jack was empty and lay close to the ground, that a jury could find that leaving the pallet jack unattended at the entrance to an aisle could be considered an unsafe condition.

The Court went on to say that just because the dangerous condition created by the pallet jack was open and notorious does not mean that an unsafe condition was not created. The fact that the pallet jack was in plain site in the aisle of the store may mean that the store's financial liability is reduced, but it does not eliminate the store's responsibility to create a reasonably safe environment for shoppers. The Court underlines the fact that the determination of what is a reasonably safe condition is fact specific and cannot be divorced from the circumstances of the event and the specific facts of the case.

Therefore, because the Court found that there was an issue of fact to be decided by the jury, it reversed the summary judgment ruling of the lower court.

Russo v Home Goods, Inc., 2014 NY Slip Op 05529

October 20, 2014

Second Department Overturns Negligent Supervision Case

The Appellate Division, Second Department, in Nelson v Friends of Associated Beth Rivka Sch. for Girls, has held that an emergency room record containing statements made by a preschool student, should have been admitted. This overrules a lower court ruling that the records were not admissible because of doubts regarding the validity of the student's testimony at trial.

monkey bars.jpgLeah Nelson, a preschool student at Beth Rivka Preschool in Brooklyn, N.Y., was injured when she fell from equipment on the school's playground. Her family sued the school in the Supreme Court of Kings County for damages, alleging that the school had not properly supervised Leah. The case hinged on whether Leah had fallen from the monkey bars, which the school admitted were not age appropriate for preschoolers, or from a ladder designed to be played on by younger children. The two teachers in charge of supervising preschool students on the playground testified at trial that the playground's monkey bars are off limits to preschool-aged children, but that Leah had fallen from an orange ladder designed for younger children.

During the trial, Leah's ability to accurately remember the accident and her credibility as a witness were questioned. The defendants questioned her as to whether she knew she was "going to have to . . . talk about the monkey bars" and whether she had been told "what to tell everybody." The defendants also called into question whether she could remember the accident by entering into evidence statements made by Leah at her deposition saying that she did not remember, specifically, what she had been doing when she had been injured. In order to counter these contentions and prove that Leah had fallen from the monkey bars and not the ladder, the plaintiffs attempted to enter into evidence records made shortly after the accident. The records contained statements made by Leah to personnel at the hospital that she had been hurt falling from the monkey bars. The defendants claimed that because Leah had been coached as to what to say and did not remember what she was doing at the time of the accident, the emergency room records should be barred from being admitted into evidence.

Normally, once a witness has been impeached or found to be unreliable or unable to remember the relevant events, similar statements made out of court may not be admitted into evidence. Because of this legal precedent, the trial court did not allow the emergency room records to be admitted and the jury subsequently found in favor of the defendants.

However, in reversing the trial court's decision, the Appellate Court, Second Department has held that because the defendants were claiming not only that Leah could no longer remember the accident, but also that she had been coached after the accident to tell the court that she fell from the monkey bars, evidence that she fell from the monkey bars created before she had any incentive to lie is admissible. Leah's statements to the emergency room personnel recorded in the emergency room records, made shortly after the accident, should have been admitted because at the time she made them there was no incentive to falsify her testimony or opportunity to coach her. The appellate court also noted that the statements made by Leah to the emergency room personnel fall within a well-defined exception to the hearsay rule allowing for statements made out of court for the purposes of medical treatment to be admitted because they are presumed to be truthful. When statements are made, not with subsequent legal proceedings in mind but in order to further medical treatment shortly after an accident, they are considered more likely to be reliable.

The appellate court found that because the case hinged on whether the jury believed Leah's testimony, not allowing the medical records to be admitted might have substantially altered the outcome of the case. Therefore, the appellate court reversed the trial courts decision and the case has been sent back for a new trial.

October 15, 2014

Exemptions from the Scaffold Act

Earlier on the New York Injury Lawyers Blog, we discussed New York's Scaffold Act- officially known as Labor Law § 240 - and how the strict liability imposed on contractors and owners by that law imposes liability upon employers when laborers fall during the course of their work. A related issue is to whom, exactly, the Scaffold Act applies.

To recap: New York's Scaffold Act mandates that contractors, owners, and managers of construction sites provide appropriate safety devices (often scaffolding, though the law allows for other devices) to their workers when those workers are performing construction or demolition work on a "building or structure." The purpose of the law is to protect laborers from falls, or from being hit by objects or people that fall from above. The Act has done much to improve construction safety across New York State.

The law, though, does contain some exemptions - it specifies a certain class of "owners" who need not abide by its provisions. The law, on its face, without considering its other sections, would seem to apply to home construction just as it would to any other. After all, homes are "structures," and oftentimes the laborers working on a home are going to dangle precariously from a great height to perform their work. But Labor Law § 240 also says this: it does not apply to "owners of one and two-family dwellings who contract for but do not direct or control the work." As anyone who has had some work done on their home before and not directly supervised that work knows, this is an exemption that applies often to homeowners.

roof work.jpgThe recent case Sanchez v. Palmiero puts this principle into practice. The Appellate Division, Second Department, did not dismiss the case, for reasons that will be discussed shortly, but it did make one salient point: simply using a portion of one's home for business purposes - say, by adding a home office - does not automatically mean that he or she no longer qualifies for the homeowner's exemption to the Scaffold Act. In Sanchez, the defendant owned a building being worked on by the plaintiff. The plaintiff fell from the roof of that building, was injured, and subsequently sued. The building was a single family home, but was vacant at the time of the incident and had been vacant since being purchased by the defendant. So the issue at bar was whether this vacant structure was a home or a business, and, as such, did the owner need to abide by the provisions of the Scaffold Act?

The court did not fully answer that question, as this was a ruling on a motion for summary judgment. For this case to get to trial, the plaintiff had to first make a "prima facie" case - he had to show enough evidence that there was some kind of violation of the Scaffold Act, and that he was injured as a result. If the plaintiff can do that, and Mr. Sanchez did, the burden then shifts to the defendant to show that he did not have to abide by the Scaffold Act because he was a "homeowner" and thus exempted.

The defendant successfully overcame this burden here, but did not win his case outright. Why? Because the law then grants the plaintiff another chance to show his case should move forward by once again shifting the burden onto him to overcome the evidence put forth by the defendant. If he can do so - and Mr. Sanchez again did so here - he has raised what's known as a "triable issue of fact," and hence the plaintiff has overcome the defendant's motion for summary judgment, and the case can proceed to trial. Here, the "triable issue" was whether the defendant intended for the structure to be primarily residential, or primarily for business.

No doubt, this area can be complicated - the law often is. If you think you were injured as a result of an employer not following the provisions of the Scaffold Act, talk to an attorney who can sit down and hear your story.

Sanchez v Palmiero, 2014 NY Slip Op 04473