In Brown v. Concord Nurseries, (4th Dept., February 2, 2007), the plaintiff fell from a ladder while attempting to clamp a broken spring in an overhead door mechanism. The Fourth Department affirmed Judge Makowski's ruling that this work constituted the repair of a building rather than routine maintenance and thus constituted an activity giving rise to strict liability under New York State Labor law §240(1).

In M.F. & R.F. v. Delaney, (4th Dept., February 2, 2007), the plaintiff-mother commenced an action on her children's behalf alleging damages for injuries allegedly sustained as a result of exposure to lead paint at a premises owned by the defendants. The Fourth Department found that the trial court should have granted plaintiffs' motion to dismiss the affirmative defenses raised by the defendants alleging failure to mitigate, assumption of risk and culpable conduct. The infant plaintiffs were only two and three years old and were thus of such young age as to be considered non sui juris as a matter of law. Significantly, however, the affirmative defenses were also dismissed with regard to the conduct of the plaintiff's mother alleging negligent supervision, etc. on her part. The Fourth Department held that the negligence of the mother could not be proved in order to reduce the recovery of the infant plaintiffs. The Fourth Department did allow the defendants to assert affirmative defenses alleging that the plaintiff's mother affirmatively created or exacerbated the lead paint conditions at the subject premises.

In Davis v. McCullough, (4th Dept., February 2, 2007), plaintiff brought a personal injury action alleging that his infant daughter was injured while using a motorized toy at the defendant's home. It was alleged that the defendant was negligent in failing to warn the plaintiff or his daughter of the dangerous condition of the motorized toy and in failing to provide adequate supervision. After a defense verdict in the liability phase of a bifurcated trial, the plaintiff appealed several rulings including bifurcation of the trial. The plaintiff argued that the seriousness of the injury was relevant with regard to the reasonableness of the defendant's conduct. The Fourth Department disagreed, however, holding that the Court did not abuse its discretion in bifurcating the issues of liability and damages for trial.

Kimpland v. Camillus Mall Associates, LP, (4th Dept., February 2, 2007), involved a slip and fall accident in the defendant's parking lot. The plaintiff there slipped and fell on "black ice". The defendant moved for summary judgment which was granted by the trial court. In support of its motion, the defendant submitted the pleadings and the deposition testimony of the plaintiff. However, the defendant did not submit any evidence that the ice formed so close to the time of the accident that it could not reasonably have been expected to notice or remedy the condition. Thus, the Fourth Department found a question of fact as to whether the defendant had actual or constructive notice of the "black ice" condition. It is unclear from the ruling exactly what evidence would have been sufficient to support a finding of summary judgment in favor of the defendant.

In Kozakiewicz v. Frontier Middle School, (4th Dept., February 2, 2007), a student's parents sued on behalf of their son seeking damages against a middle school, school district and board of education for injuries sustained when the infant plaintiff was allegedly assaulted by a fellow pupil during lunch recess. Judge Burns granted summary judgment in favor of the defendants and the plaintiff appealed. The Fourth Department affirmed summary judgment in favor of the defendants holding that, even if the defendants had requisite knowledge or notice, the alleged lack of supervision was not a proximate cause of the injuries sustained by the plaintiff's son.

In Lodestro v. Upstate Milk Cooperatives, (4th Dept., February 2, 2007), the plaintiff settled a negligence action against defendants for $20,000.00. At the time of the proposed settlement, the recovery was subject to a workers' compensation lien in excess of $196,000.00. The plaintiff moved seeking distribution to her of one-third of the net settlement funds, with one-third going to the attorney and the final third going to the workers' compensation carrier. The motion was granted by Judge Feroleto but the Fourth Department modified the order, vacating the distribution of the settlement funds to plaintiff (but not to her attorney). As such, the attorney received one- third of the settlement and the compensation carrier received two-thirds while the plaintiff herself received nothing.

In Ham v. City of Syracuse, (4th Dept., February 2, 2007), plaintiff brought a personal injury action against a defendant police officer and various municipal defendants. The Fourth Department upheld the trial court's denial of defendant's motion for summary judgment holding that a question of fact existed as to whether the police officer's conduct amounted to "reckless disregard for the safety of others." There, the police vehicle slowed down and perhaps even stopped before entering an intersection against a red light but did not have his siren or emergency lights activated.

In Pellegrino v. Youll, (4th Dept., February 2, 2007), the jury returned a verdict finding no negligence against the defendant-motorist in a personal injury case arising out of a motor vehicle versus bicycle accident. The trial court's order granting a new trial was affirmed by the Appellate Division because it was established at trial that the defendant had failed to adhere to his statutory duty to yield the right-of-way pursuant to Vehicle and Traffic Law §111(d)(2)(a) and that, therefore, the defense verdict could not have been reached on a fair interpretation of the evidence.

In Hunter v. Galland, (4th Dept., February 2, 2007), the plaintiff was an employee of a utility company. He was allegedly attacked by dogs while in the course of his employment. The plaintiff sought compensatory and punitive damages based on the defendant's failure to warn with regard to the presence of dangerous dogs at the residence. The Supreme Court held and the Fourth Department affirmed that punitive damages were not warranted for a failure to warn even where defendant knew of the presence of dangerous dogs at the residence.

The New York State Court of Appeals in Appalachian Insurance Company v. General Electric Company, (Ct. of Appeals, February 15, 2007), ruled on a declaratory judgment action brought by excess carriers against their insured, General Electric. There, GE had been faced with a flood of litigation for liability arising out of exposure to asbestos. The majority of these claims arose out of exposure from steam turbines manufactured by GE and installed at thousands of sites across the United States. In order to take advantage of excess coverage, GE sought to define all steam turbine related asbestos claims in each given year as a single "occurrence" within the meaning of the applicable policy language. The excess carriers argued that each plaintiff's case should be taken as a separate "occurrence' within the meaning of the policy. The Court of Appeals ruled in favor of the excess carriers but did note that multiple plaintiff's claims may arise out of the same "occurrence" under other circumstances such as a series of related explosions, the accidental release of hazardous substance or some other calamity.
Prepare by Scott Orndoff