New York Legal Update

Secondhand Smoke Action Proceeds

When making motions for summary judgment it is critical to submit evidence in admissible form. The City of New York may have just made a costly mistake by forgetting this fundamental of motion practice. In the case of Marquez v City of New York, 2008 NY Slip Op 01059, the plaintiff brought a personal injury action against the City alleging that the secondhand smoke he inhaled while incarcerated in City jails between August 1998 and January 2001 caused his bladder cancer. The City moved for summary judgment arguing that the scientific community has not accepted the proposition that a causal connection exists between bladder cancer and secondhand smoke.  But in doing so, the City only submitted an affirmation by counsel and an expert's unsworn statement. Thus, the City's summary judgment motion was denied. Who can tell what will happen now when the case goes before a jury even if the City submits proof that there is no scientific evidence of a connection between secondhand smoke and bladder cancer.

Nurse Exposed To HIV Virus May Seek Damages For Emotional Distress Beyond Six Months

The New York courts have previously determined that nurses who have been negligently exposed to the HIV virus through a scientifically accepted method of transmission of the virus may recover damages for emotional distress because of the fear of developing AIDS. But one appellate court has limited the time period for which one can recover such damages to 6 months after the exposure because the scientific evidence suggests that 95% of HIV-positive individuals will test positive within six months after exposure. Thus, an individual exposed to the virus can be reasonably assured that he or she is free of infection if tests conducted six months after the exposure are negative (see, Brown v New York City Health and Hosps. Corp., 225 AD2d 36 [2d Dept 1996]). 

However, the Court of Appeals relaxed this time frame yesterday in Ornstein v New York City Health & Hosps. Corp., 2008 NY Slip Op 01027. The facts in that case were as follows. On September 1, 2000, while working as a nurse on a per diem basis at Bellevue Hospital in Manhattan, plaintiff and a nurse's aide began bathing a critically-ill patient suffering from AIDS. As she was turning the patient, plaintiff was stuck in the thumb by a hypodermic needle that had been left in the patient's bed by an intern. Because the needle contained blood, plaintiff was immediately treated with anti-viral medications for potential HIV exposure. She remained on these medications for two months, suffering side effects that continued for several months thereafter including nausea and neuropathy in her hands and feet. Plaintiff also promptly commenced a regimen of periodic HIV testing. The plaintiff was tested every three months for a period of two years following her exposure but consistently tested negative for infection with HIV. She commenced an action against the new York City Health and Hospitals Corporation alleging negligent infliction of emotional distress.

Relying on Brown, the defendants argued that plaintiff should be restricted to presenting the jury proof that she experienced mental anguish for only a period of six months following the needle-stick incident.

However, the Court of Appeals rejected a bright line 6 month rule. First, the Court stated that the 6 month rule did not make sense in this case because the plaintiff was never advised that her risk of testing positive in the future would dramatically decrease, if not virtually cease, once she tested negative at the six-month juncture. She was also unaware of this fact from her own medical training. In fact, the plaintiff testified that her fear of contracting HIV from the needle-stick incident continued until she tested negative in June 2002, about a year-and-a-half after exposure. In addition, the Court stated that the 6 month rule established by Brown did not account for the fact that a plaintiff exposed to HIV may suffer injuries that are distinct from the fear of contracting the virus. For instance, the plaintiff offered medical proof that she continued to suffer from post-traumatic stress disorder even after her concern that she had contracted the virus was alleviated. Plaintiff testified that she lost income because she was never able to return to per diem hospital work after the incident due to her fear of similar future exposure incidents. In addition, while her HIV status was uncertain, she was unable to engage in direct patient care but had to confine her duties to office work. She stated that, after it was determined that she had not contracted the virus, she continued to suffer from post-traumatic stress disorder and that this condition was a contributing factor in her decision to permanently change the nature of her employment from direct patient care to teaching. The Court found that if this evidence was believed, a rational jury could find that plaintiff's psychiatric condition and resulting loss of income were directly related to the exposure incident, warranting monetary recovery. The Court noted that the defendant was still free to introduce scientific and medical evidence at trial that the plaintiff's fear of AIDS was unreasonable at some point, but it was simply unwilling to adopt the bright line 6 month rule. Thus, the Court ordered a new trial on damages.

Rear End Collisions Into Double Parked Cars And The Vexing Problem Of Proximate Cause

Double parked cars in Manhattan - it is as common as grass in the suburbs. Taxicabs picking up fares, buses loading and unloading passengers, and everyone else giving up the hunt for the one existing parking space and putting on the hazards for the few minutes it takes to run in a buy a lottery ticket. Everyone does it in Manhattan and it is basically unavoidable. But given the First Department's decision in White v Diaz, 2008 NY Slip Op 00433 last week you may want to strongly reconsider double parking; the Court held that if you double park and someone else strikes your vehicle from the rear, you may have contributed to the accident. 

The car accident in question occurred shortly before 6:00 a.m., when an Access-a-Ride van double-parked on First Avenue near East 94th Street in Manhattan to pick up the plaintiff. It was struck in the rear by a van driven by defendant Diaz and owned by defendant Agramonte. Diaz admitted to falling asleep behind the wheel. Plaintiff was a passenger who had just entered the Access-a-Ride van, which was driven by defendant Nunez and owned by defendant Atlantic Paratransit (the Nunez defendants). Defendant Nunez testified that he double parked in the first lane for moving traffic on First Avenue in front of plaintiff's building to wait for her, because there were no available spots at the curb and he did not see the entrance to the building's parking lot. He said he waited approximately five minutes with his hazard lights on before plaintiff arrived. After the plaintiff got in, but before she was able to put on her seat belt, the accident occurred.

Following discovery, the Nunez defendants moved for summary judgment, arguing that since their van was struck in the rear while stopped, the accident was proximately caused solely by the negligence of Diaz, and their van's presence in the traveling lane merely furnished the condition or occasion for the accident.

After analyzing a number of similar rear end collisions into stopped vehicles, the Court denied the defendant's motion for summary judgment. The Court stated that, "where there is any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of law, the better course is to leave the point for the jury to decide." The Court concluded that a reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double parking for five minutes on a busy Manhattan street. The Court stated that the precise manner of the accident need not be foreseeable. Rather, it was enough that it was foreseeable that the flow of traffic, being impeded by the double-parked van, that an inattentive, careless or distracted driver might not stop in time to avoid the van. The Court stated that a reasonable jury might conclude that if the Nunez van had pulled over to the curb or into a nearby parking lot to wait, it would not have been in the path of the Diaz van and plaintiff would not have been injured.

A few personal observations: After this case, I can't envision any instance in which a stopped double parked vehicle can be found not to have contributed to a rear end collision. It was undisputed that the driver of the other vehicle fell asleep while driving. If this can not be seen as the entire proximate cause I don't know what can. In addition, it seems to me to be irrelevant how long the Access-a-Ride van was double parked. The accident occurred instantaneously and thus it was irrelevant how long it was double parked. In fact, the longer it was doubled parked without an accident occurring would seem to suggest that the double parking could not have contributed to the accident. Think of the number of vehicles which passed the double parked Access-a-Ride van during the 4 minutes and 59 seconds it was double parked and did not strike it in the rear. When determining proximate cause isn't it appropriate to calculate, or at least approximate, how many potential accidents did not occur? Finally, it now becomes perilous for all taxicabs and buses in the City. All will have to foresee being struck in the rear while picking up passengers.   

Parents, Little League, And Assumption Of Risk

Parents Beware - be careful while attending your next little league game or practice. We all know that those participating in athletic activities assume the risks that those activities entail. But what about spectators or bystanders to athletic events? To what extent do they assume the risks of athletic events. On January 8th the First Department decided a case which parents may want to take note of - Roberts v Boys & Girls Republic, Inc., 2008 NY Slip Op 00073.

The plaintiff-mother was watching her son's little league team during a scrimmage game. She was injured when she strayed into the path of a bat being swung by another player taking a practice swing along the off-field side of a chain-link fence running parallel and adjacent to the field's third-base sideline. Had the accident not occurred, the player, upon the completion of his practice swings, would have passed through an opening in the fence near home plate to take his turn at bat. The Court found that the mother assumed the risk of her injuries and thus dismissed her action on a summary judgment motion. The Court found that the risk of being struck by a swung bat was perfectly obvious. It found that the area where the bats were being swung was "logically situated" to the game taking place on the field. It was marked with equipment, and was in continuous use by players for about the hour and a half that the plaintiff-mother was at the game. The Court stated that the area in question "was immediately adjacent to the field, discrete, obvious and avoidable by any reasonably wary spectator or bystander."

The Court noted that the plaintiff-mother had testified that she observed numerous children along the fence area swinging bats when she entered the ball field, and again observed such activity from the bleachers as she watched her son practice. In addition, shortly before the accident, when plaintiff returned from the bleachers to the area behind home plate, she passed by a group of players holding bats in the same area. Finally, there was testimony that the player whose bat hit the plaintiff began his fateful swing when plaintiff was still some 8 to 10 feet away. Thus, the Court concluded that the sideline on-deck area was open and obvious to the plaintiff and "as safe as it appeared to be."

The Court stated if athletic and recreational activities are to persist, "there must be tolerated a disparity between the level of safety that might be optimally or even reasonably achieved and that which the law mandates."

Wrongful Death Award Made Directly To Grandchildren Invalid

A cause of action to recover damages for wrongful death action is a property right belonging to the distributees of the decedent. If someone dies with both surviving children and grandchildren can a wrongful death award be made directly to the decedent's grandchildren? No, answered the Second Department Tuesday in Carter v New York City Health & Hosps. Corp., 2008 NY Slip Op 00216.

In that case the decedent was survived by 9 children and 59 grandchildren. In a wrongful death action, a jury made an award of $96,000 to seven of the decedent's grandchildren, but nothing to the decedent's children. Citing EPTL 4-1.1[a][3]), the Court stated that since the decedent was survived by children and no spouse, all of the decedent's property should pass to the children, by representation. And since all nine of the decedent's children were still alive at the time of the decedent's death, none of the decedent's grandchildren qualified as a distributee. The Court thus vacated the award to the grandchildren. It did however, order a new trial on damages because given the charge to the jury, the damages improperly awarded to the grandchildren might well have been intended as a lawful award to the proper distributees.   

School Not Liable For Asthma Death

When a child dies it is understandable that a parent would seek to impose liability on anyone who had any responsibility to care for the child. For school districts, just how far should the duty to care for a child go, and when does such a duty end? An interesting case from the Second Department last Tuesday - Williams v Hempstead School Dist., 2007 NY Slip Op 09582 - suggests that as soon as the child leaves school grounds any duty ends.

The child was a 5 year kindergarten student of the defendant school district. The child had asthma, which was know by the child's teacher and school nurse. At the beginning of the school year, the child's mother gave the nurse asthma medication, an inhaler, and an authorization and directive by the child's pediatrician for their use.

One morning, the child's teacher and a teacher's aide noticed that he was coughing. Thus, the teacher's aide took him to the school nurse, arriving at the nurse's office at approximately 10:40 A.M. The nurse gave the child his inhaler medication and checked his breathing. The nurse noted he was breathing, alert, and in no distress. She then contacted the child's mother. The nurse then walked the child back to his classroom (he was not coughing at this point) and asked the teacher for his homework. The mother arrived to pick up her child at about 11:40 A.M. When she did so, the child was breathing and able to walk. After indicating to the nurse that she was taking her child to his pediatrician, which the nurse had suggested, the mother got in her car with the child and left the school. While in the car the child appeared to be hot and ill, and the mother stopped twice to attend to him. Thereafter, the mother decided to drive directly home, which was closer than the pediatrician, to call for help. Upon reaching her home, the mother left the child in the car, called 911, and then moved him into the house where, upon their arrival, emergency medical personnel treated him before taking him by ambulance to the hospital. The child was pronounced dead at about 12:56 P.M. at the emergency room.

In her wrongful death action the mother alleged negligent hiring of the nurse and negligence predicated on the professional malpractice of the nurse. The defendants - the nurse and the School District - moved for summary judgment dismissing the complaint.

While the Supreme Court denied the motion, the Second Department reversed and dismissed the complaint. The Second Department stated that since child had been released to the plaintiff mother who assumed complete custody and control of him prior to the time of his death, no duty existed on the part of the defendants at the time of the child's death. In their own word, the Court stated:

Having removed [the child] from the geographic boundaries of the District, as well as from the actual control of the defendants, and having decided in response to his physical distress to take [the child] home (where, according to hospital emergency room records, the plaintiff administered medication to him), the plaintiff cannot establish, as matter of law, that a duty existed which could give rise to any liability by the defendants.

The Cable Guy and Labor Law § 240(1)

Does the work of the cable guy or telephone repairman fall within the protection of Law Law § 240(1)? A case from the First Department last week - Rhodes-Evans v 111 Chelsea LLC., 2007 NY Slip Op 07540 suggests that for many instances it does not.

The plaintiff was a Verizon field technician who was assigned to splice fiber optic cable in an existing cable box located in the parking garage of the defendant's building to provide new digital telephone service to a tenant in the building. The cable box was 10 to 15 feet above ground level. The floor of the garage was littered with construction and other debris, and the plaintiff had to clear an area to place a ladder that she used to reach the cable box. Unable to move a large piece of sheet metal on the floor, the plaintiff placed the ladder so that at least two of its legs were on the metal. Plaintiff stood on the second rung from the top of the ladder looking for the splice on which she was to work. The box in which the splice was encased was to her right, thus necessitating that she turn the upper part of her body in that direction. As she searched for the splice, the ladder started going backwards. To avoid falling, plaintiff twisted her body and grabbed onto the cables and used her body to pull the ladder back into position. In so doing, she injured her back. The ladder never actually fell. Nor did plaintiff.

The building owner moved for summary judgment, inter alia, on the grounds that the plaintiff was not entitled to any relief under Labor Law § 240(1) since she was not engaged in construction-related activity. In order to be entitled to the statutory protection of Labor Law § 240(1), a worker must establish that he r she sustained injuries while engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240[1]). The Supreme Court had denied the owner's motion finding that the work in which plaintiff was engaged constituted an alteration.

However, the First Department reversed and granted the owner's motion. The Court stated that in order to constitute an alteration, the statute required making a significant physical change to the configuration or composition of the building or structure. And it stated that there was nothing in this record to suggest that splicing a fiber optic cable located in a box was making a significant physical change to the garage or building. 

If the plaintiff had been installing a new system, perhaps by installing a new box, and not splicing wires, perhaps the results would have been different. The plaintiff had attempted to make this argument, but the Court found that record did not support such a claim.

Liability Of Landowners When The Lights Go Out

What is the duty of a landowner to provide illumination when there is a blackout? The Second Department issued a somewhat confusing decision on this question last week in Solan v Great Neck Union Free School Dist., 2007 NY Slip Op 06861.

In that case, the plaintiff arrived at the parking lot of the Great Neck North High School minutes after a power failure had extinguished the lights illuminating the parking lot. Although the parking lot was in total darkness, the plaintiff observed some lights inside the school. The school board meeting which the plaintiff intended to attend had been moved to an auditorium which had lights powered by a generator. In attempting to cross the parking lot to enter the school, the plaintiff tripped and fell over a cement parking space divider, which she was unable to see because of the darkness, sustaining personal injuries.

In her action against the School, the plaintiff claimed that the School had a duty to supply backup power to the parking lot lights to ensure continued illumination of the lot during a power outage. A jury returned a verdict in favor of the plaintiff finding the School 90% at fault and the plaintiff 10% at fault. However, the trial court granted the school's verdict to set aside the verdict and dismissed the complaint.

The Second Department affirmed. It stated:

A landowner's duty to maintain its property in a reasonably safe condition in view of all the circumstances, including providing a safe means of ingress and egress, does not include a duty to have an uninterrupted power source for parking lot lights in the event of a power outage.

However, in the next sentence the Court went on to say:

The power outage did not relieve the defendant of its duty to address the dangerous condition created by the loss of power when the otherwise open and obvious cement divider was obscured from view by darkness.

I'm not sure how these two statements are consistent (unless the Court meant that the School was required to cure the dangerous condition by moving the cement dividers. But either the School had a duty to provide illumination or it didn't). In any event, the Court went on to hold that there was no valid line of reasoning nor permissible inferences to be drawn from the evidence which could lead a rational person to the conclusion that the School had a reasonable time to address the darkness in the parking lot in the matter of minutes between the power outage and the plaintiff's fall.

So presumably the School did have a duty to provide illumination to the parking lot but only after some period of time to address the issue. 

Of course the irony is that if the School was required to provide illumination to the parking lot at some point, this would most likely involve the use of portable generators along with their power cords strewn across the parking lot. Would this not increase the risk of tripping accidents significantly? Is it wise to require a duty that increases the risk of injury? Its a Blackout. How did we exist before electricity? What is more onerous - requiring the School to put up portable generators, or requiring pedestrians to walk a little more carefully, or perhaps carry a flashlight in their cars?  Thus, while I agree with the Court's result, I think it would have been better if the Court had just stuck with its statement that a landowner does not have a duty to provide an uninterrupted power source for parking lot lights in the event of a power outage. 

Ground Zero Worker's Petition To File Late Notice Of Claim Removed To Federal Court

The September 11th Victim Compensation Fund created a Federal cause of action for damages arising out of the September 11th attacks. The act which created the act also provided that this Federal cause of action would be the exclusive remedy for damages arising out of the attacks.

Last Thursday, the First Department held that even bringing a petition to file a late notice of claim against the City of New York must be brought in Federal courts not State Supreme Court - Matter of Felder v City of New York, 2007 NY Slip Op 06810

The petition was brought by a New York City Police Officer who assisted in rescue, recovery and removal operations at the Ground Zero World Trade Center(WTC) Site. By petition and proposed notice of claim dated August 26, 2005, the officer sought leave to file a late notice of claim against the City of New York for damages resulting from the officer's alleged respiratory injuries and other "long-term health issues" arising from toxic exposure at the WTC Site. The petition alleged that these WTC-related injuries did not become apparent to him or his physicians until about June 6, 2004. Although the petition acknowledged that the 90-day notice rule had not been complied with, the officer argued that the City was aware of the facts and circumstances underlying his claim well within the 90-day period.

The First Department held that the Supreme Court lacked subject matter jurisdiction to determine the petition. It stated that the federal statute completely pre-empted state-law causes of action, and a claim which came within the scope of that cause of action, even if pleaded in terms of state law, was in reality based on federal law. The Court thus removed the petitioner's claims for injuries to the United States District Court, Southern District of New York.

Multiple Chemical Sensitivity Lawsuit Fails

Multiple Chemical Sensitivity (MCS) is a condition in which those afflicted by it claim they suffer from a variety of symptoms caused by low levels of various environmental factors. They claim unusually severe sensitivity or allergy-like reactions to many different kinds of pollutants including solvents, VOC's (Volatile Organic Compounds), perfumes, petrol, diesel, smoke, "chemicals" in general, and the condition often encompasses problems with regard to pollen, house dust mites, and pet fur & dander. The condition is also referred to as Chemical Injury, Chemical Sensitivity, Environmental Illness (E.I.), and Multiple Allergy (see, www.multiplechemicalsensitivity.org). It is a controversial diagnosis (see, Quack Watch). People with the condition sometime seek special accommodations, apply for disability benefits, and file lawsuits claiming that exposure to common foods and chemicals have made them ill.

Last Thursday (September 6th), the First Department rejected such a Multiple Chemical Sensitivity lawsuit in Spierer v Bloomingdale's, 2007 NY Slip Op 06575.

The plaintiffs had claimed injuries due to multiple chemical sensitivity caused by a two-week exposure to bedding (mattresses and box springs) manufactured by defendant Simmons and purchased from Bloomingdale's. The Court stated that other courts had consistently determined that the cause or causes of MCS could not be reliably established by scientific proof. And it indicated that this was borne out in the evidence before it, which consisted of environmental and medical tests undertaken at the behest of plaintiffs. That evidence was both inconsistent in determining the chemical compounds to which the plaintiffs might have been exposed and lacked scientific support for a causal link between the chemicals found and MCS. In addition, the evidence failed to address other potential causes of the plaintiffs' symptoms. One chemical testing report indicated that numerous compounds might have caused plaintiffs' symptoms, that the comprehensive testing necessary to test for all such compounds would be a "gargantuan task," that "unless some additional information is obtained that might provide insight into the problem, any further [testing would] result in . . . inconclusive findings." There was also evidence that no other customer of the bedding products had ever complained of a similar reaction to the products. Thus, the Court awarded summary judgment to the defendants.

Is it ever possible for a multiple chemical sensitivity lawsuit to prevail? It would seem very doubtful. Given the nature of the claim that multiple environmental factors could cause a variety of symptoms, which are also dependent on the individual, it would appear nearly impossible to prove causation. Perhaps the courts should just come out directly and hold that multiple chemical sensitivity claims are not cognizable.