In Pabon v. Scott, (4th Dept., October 8, 2010), plaintiff commenced a personal injury action following a motor vehicle accident. The accident occurred when defendant Harper intended to make a right turn at an intersection controlled by a four way stop sign. Harper testified that the stop sign normally at that intersection had been removed. Harper, a bus driver, driving a private vehicle at the time of the accident, had driven through this intersection multiple times on her bus route. Harper had previously reported the missing stop sign to the school bus dispatcher. Trial court granted summary judgment in favor of Harper because she would not be subject to a traffic ticket for entering the intersection without stopping where there was no stop sign. However, the Appellate Division reversed the trial court stating that Harper's own knowledge that the stop sign should have been there and had been removed raised a triable issue of fact as to whether Harper failed to exercise due care in operating her vehicle. The Appellate Division further held that even if a vehicle enters an intersection with the right-of-way, the driver may nevertheless be found negligent for failing to use reasonable care when proceeding into the intersection.

In Council v. Utica First Insurance Company, (4th Dept., October 1, 2010), plaintiff, Council, commenced an action for declaratory judgment that the defendant, Utica First Insurance Company, was obligated to defend and indemnify its insured, a nightclub, against whom the plaintiff, Council, had obtained a default judgment. The plaintiff suffered injuries as a result of an altercation with an employee of the nightclub. The plaintiff sought to recover against the nightclub's insurer, Utica First. The Appellate Division found that although Council had properly alleged a cause of action gounded in negligence which would fall within the insurer's obligation to defend its insured, upon review of the merits, the Court concluded that Utica was entitled to judgment as a matter of law. The record showed that Council was the victim of an unprovoked assault by a bouncer at the nightclub. The Appellate Division determined that this event fell within the "assault and battery" exclusion of the club's insurance policy with Utica. Furthermore, the Appellate Division determined that the defendant-insurer could still maintain that the insured acted intentionally, despite a finding of negligence in the underlying action. The Court determined that "the issue of negligence was not actually litigated, as the judgment was entered on default, and the finding of negligence therefore has no collateral estoppel effect."

In Margolis v. Volkswagen of America, Inc., (4th Dept., October 1, 2010), plaintiff commenced a personal injury action arising from a motor vehicle accident. The plaintiff's car was struck by a van owned by Raymond Case, the president of defendant Ray Case Floors, Inc. An employee of Ray Case Floors, Inc. was operating the van at the time of the accident. The employee/van driver testified that following his work at a client's home he intended to stop at a drugstore to purchase headache medication on the way back to his employer's garage. He further testified that he took a wrong turn and subsequently decided that he would not stop at the drugstore, and would instead, return directly to the garage. After that decision was made, this accident occurred. The defendant Case and Ray Case Floors, Inc., moved for summary judgment contending that the employee was acting outside the scope of his employment at the time of the accident and, therefore, the employer is not liable for this accident. The Appellate Division affirmed the Special Term's determination that even if the employee actually continued his intended stop at the drug store, it may have been foreseeable and could have been deemed incidental to the furtherance of the employer's interests and, therefore, there was a triable issue of fact as to the employer's liability.

In Brandy B v. Eden Central School District, 15 N.Y.3d 297 (2010), the Court of Appeals determined that a school district is not liable for the misconduct of a student absent actual or specific notice of dangerous conduct. In this case, an eleven year old boy with a troubled history was, following much improvement in behavior and social skills, placed into regular schooling. Thereafter, while riding a school bus, it was determined that the boy exposed himself to and forced a five year old to touch him. The Court determined that the boy had no history of sexual misconduct and as such, found that this misconduct was unanticipated and that the school district had no notice of any propensity by the student to conduct himself in such a manner. The Court determined that the issue of whether the school was on adequate notice of this potential, which would ordinarily be an issue of fact for the jury, did not rise to the level for jury submission with regard to this record.

In Snyder v. Plank, et al., (4th Dept., October 1, 2010), plaintiff commenced a personal injury action seeking damages sustained when she slipped and fell while visiting an inmate at the Livingston County Jail. Supreme Court granted defendants' motion to dismiss the complaint as time-barred pursuant to CPLR 215 (1). That statute provides that a plaintiff shall commence "an action against a sheriff, coroner or constable, upon a liability incurred by him [or her] by doing an act in his [or her] official capacity or by omission of an official duty" within one year of the act or omission. Pursuant to Correction Law § 500-c (1), the sheriff of each county "shall have" custody of the county jail, which includes the duty to maintain those premises in a reasonably safe condition. The Appellate Division affirmed, holding that the duty to maintain the jail in a reasonably safe condition arises by virtue of the sheriff's office, i.e., the sheriff's custody of the jail. Finally, the Appellate Division rejected plaintiff's contention that maintaining the floors of the jail is not an official duty of the sheriff because the inmates, not the sheriff, mop the floors. The Appellate Division found that the sheriff is the caretaker of the jail, and therefore, it is irrelevant that inmates are assigned the task of cleaning the floors.

Prepared by John M. Coyle