Monday, February 8, 2016

Second Department Affirms Granting of Mistrial Over Plaintiff's Repeated References to Lack of Medical Insurance

In Peters v. Wallis, the trial court granted a motion to set aside a jury verdict against the defendant as contrary to the weight of the evidence, declared a mistrial and directed a new trial on the issue of liability.  On appeal, the Second Department modified to deny the motion setting aside the jury verdict, but the Court affirmed the mistrial on the finding that plaintiff's repeated references to her lack of medical insurance at the time of the accident may have influenced the jury. 

Second Department Finds Question of Fact as to Whether Plaintiff Was "Permitted to Work" Within the Meaning of the Labor Law

In Aslam v. Neighborhood Partnership Hous. Dev. Fund, the plaintiff was injured in a fall from a scaffold.  The plaintiff testified that he had received permission from his employer to work on the building, but the defendants owner and general contractor argued that plaintiff was expressly prohibited from working on the building.  The Second Department found that defendants had raised a question of fact as to whether plaintiff was "permitted or suffered to work" on the building, a requirement for the Labor Law to apply.

Friday, January 29, 2016

Second Department Reverses and Orders A New Trial For Plaintiffs Despite Their Lack of Objection to Jury Charge

In Figueroa-Burgos v. Bieniewicz, the plaintiffs commenced an action against the defendant for lack of informed consent regarding the plaintiff's breast-reduction surgery.  The jury found in favor of the defendant and the plaintiffs appealed.  The jury was charged that the defendant had a duty to inform the plaintiff of alternatives to surgery and also that the defendant had a duty to inform the plaintiff of the risks of surgery.  The jury was asked to determine if the defendant departed from good and accepted medical practice by failing to provide appropriate information to the plaintiff and, if so, whether such departure was a proximate cause of the plaintiff's alleged injury.  The plaintiffs did not object to the jury charge or verdict sheet.

On appeal, the Second Department nevertheless considered the unpreserved objection that the jury was not properly charged with the standard for lack of informed consent.  The Court found that the jury was not properly instructed on the three elements of lack of informed consent: (1) that the defendant failed to disclose alternatives to surgery and failed to inform the patient of reasonably foreseeable risks that a reasonable practitioner would have disclosed under the circumstances; (2) that a reasonably prudent patient would not have undergone surgery if she had been fully informed; and (3) the lack of informed consent is a proximate cause of the injury.  Here, the jury was only asked to decide if two of the three elements existed, so the Second Department reversed the judgment and remanded the matter for a new trial on lack of informed consent.  

Can A Party Appeal on Behalf of Another Party? Second Department Reminds the Bar That the Answer Is: "NO"

In Barrett v. Dennis Lounsbury Builders, Inc., defendant Garvey attempted to appeal the dismissal of the plaintiff's Labor Law § 200 and common-law negligence claims asserted against defendant Dennis Lounsbury Builders, as well as the refusal of the lower court to search the record and grant Garvey summary judgment on his cross-claim against Lounsbury for common-law indemnification. The Second Department dismissed Garvey's appeal, holding that "[w]here the order does not affect the rights of an appealing party, that party is not aggrieved by the order and the appeal must be dismissed."  Likewise, a party is not aggrieved by an order that does not grant relief that was not requested.     

Monday, January 25, 2016

Labor Law § 240(1) and Electric Shock - At Least One Judge Recognizes A Split Between the First Department and the Remaining Appellate Courts On the Issue of Adequacy of Safety Devices

In a concurring opinion in Nazario v. 222 Broadway, LLC, the First Department adheres to its precedent that a worker who falls from a ladder after sustaining an electric shock is prima facie entitled to judgment on liability pursuant to Labor Law § 240(1).  Here, the worker fell along with the ladder after receiving the shock. The majority found that because the ladder was unsecured, allowing both the worker and the ladder to fall, the plaintiff had established his entitlement to judgment on liability under the statute.  The majority rejected the defendants' contention that the ladder was defect-free, and therefore the plaintiff was obligated to prove that the defendants had failed to provide him with an appropriate safety device.

Justice Tom concurred, but felt constrained to do so by the Court's prior precedent.  Notably, however, Justice Tom disagreed with the majority that it is enough for a plaintiff to show that he was injured falling from a defect-free ladder after receiving an electric shock.  Instead, Justice Tom noted that it is the plaintiff's burden to prove both the absence of an adequate safety device and proximate cause. Here, falling from a defect-fee ladder would ordinarily raise a question of fact as to the sufficiency of the safety device, even when the falling worker received an electric shock.  He noted that the Court's prior holdings had "created a special class of decisions which, contrary to the foundational Court of Appeals holdings in this area, remove a plaintiff's quintessential burden to establish causation under the Labor Law."

Finally, Justice Tom stated that the decisions of the First Department in this regard were contrary not only to the Court of Appeals, but also to the other three Departments of the Appellate Division, which have all found that questions of fact existed as to the adequacy of the safety device where the injured worker fell after receiving an electric shock (see Grogan v Norlite Corp., 282 A.D.2d 781 [3d Dept 2001]; Donovan v CNY Consol. Contrs., 278 A.D.2d 881 [4th Dept 2000]; Gange v Tilles Inv. Co., 220 A.D.2d 556, 558 [2d Dept 1995]).      

Thursday, January 21, 2016

Majority of First Department Panel Finds That Study-Abroad Organizer Owed Duty to Care For Program Participant

In Katz v. United Synagogue of Conservative Judaism, the plaintiff was a participant in a study-abroad program in Israel operated by United Synagogue.  During her first semester abroad she allegedly injured her knee for which she was treated by a doctor.  During the second semester she performed volunteer work where she stayed with a host family.  Plaintiff's relatives lived an hour and a half away in Jerusalem, and plaintiff had a cell phone to contact her parents.  She allegedly re-injured her knee for which she again received treatment at a hospital.  She was told to rest and return in two weeks if the knee remained swollen.  A week later she was accompanied by a United Synagogue staff member to an orthopedist appointment where an MRI was prescribed.  Another week later she was again accompanied to her MRI appointment and the following week returned to the orthopedist, once again accompanied by United Synagogue.  She was prescribed physical therapy but did not seek treatment because she told United Synagogue to make arrangements for her.  When they failed to do so, she complained to the program director who was not responsive.  Finally, she complained to her parents.  Upon returning to the states she underwent surgery that she claims was exacerbated by her failure to obtain physical therapy in Israel.

The majority found that United Synagogue owed a duty to the plaintiff because it was in the best position to protect her from harm -- although the majority recognized that "plaintiff, an adult, with access to her parents in another country and family in Jerusalem, may not have been as helpless as she makes herself out to be."  The majority further found that this was not an ordinary study-abroad program because of portion of the program was not held at a university.  Lastly, the majority suggested that it was not extending the doctrine of in loco parentis, which does not apply at the college level, because the program had an internal policy of assisting with arrangements for medical care.

The dissent disagreed, finding that the majority was, in fact, applying the doctrine of in loco parentis, which has been affirmatively rejected by the Courts with respect to study-abroad programs.  The dissent noted that the plaintiff had the means to make arrangements for her medical treatment, and that any failure by defendant to do so amounted to a mere breach of contract, which would not create an independent tort duty. Finally, even assuming that defendant owed a duty to the plaintiff, the dissent would have dismissed the claim based on a lack of proximate cause. 

The majority consisted of Justices Acosta, Saxe and Moskowitz. The dissent was written by Justice Andrias, in which Justice Tom joined.  With a 3-2 split the defendant will have an automatic right of appeal to the Court of Appeals once finality has been achieved.  We will continue to monitor the case for a possible leave motion in advance of finality being obtained.          

First Department Finds That its Decision as to One Defendant Was Law of the Case as to the Remaining Defendants

In David v. Persaud, the plaintiff alleged that defendant Dr. Cerbone, an ER attending and defendant surgeon, Dr. Hutchinson, failed to diagnose and treat a post-operative infection at defendant St Barnabas Hospital which ultimately led to the death of her decedent.  On motions and cross-motions by all defendants for summary judgment, the trial court denied the motions and Dr. Cerbone appealed.  The First Department reversed and dismissed the claim against Dr. Cerbone, finding that "plaintiff's expert failed to causally relate the alleged four-day delay in diagnosis... to decedent's death."

Thereafter, Dr. Hutchinson and St Barnabas moved to renew their motions for summary judgment, which were granted and plaintiff appealed.  The First Department affirmed, finding that the lower court had properly relied on law of the case doctrine.  The First Department also found that renewal was the appropriate procedural course because its earlier decision dismissing the case against Dr. Cerbone constituted a change in the law.