Starting in 2012, New York Courts will be using a new pattern jury instruction concerning wrongful death damages (PJI 2:320). The change in the New York wrongful death pattern jury instruction now includes language concerning pre-impact terror. The new language states:

Plaintiff is also entitled to recover the amount you find that will fairly and justly compensate for the emotional pain and suffering actually endured by the plaintiff between the moment the plaintiff realized that he was going to be gravely injured or die and the moment plaintiff sustained a physical injury. In order to find that plaintiff is entitled to recover for these damages, you must find that: (a) plaintiff was aware of the danger that caused his grave injury or death, (b) plaintiff was aware of the likelihood of grave injury or death, and (c) plaintiff suffered emotional distress as a result of his awareness of his pending grave injury or death.

This change in the pattern jury instruction means that the jury will now hear from the court, not just the plaintiff's counsel, that pain and suffering for pre-impact terror can be awarded as damages.

In Valdez v. City of New York, 2011 WL 4916330 (October 18, 2011), the plaintiff had an order of protection issued against her boyfriend. In violation, the boyfriend telephoned the plaintiff and threatened to kill her. After the phone call, the plaintiff took her children to their grandmother's house and, on the way, made a telephone call to the police resulting in the police promising to arrest her boyfriend "immediately." Without having determined that the arrest had been made, but merely assuming it was, she returned home and on the next night, the boyfriend showed up and shot and severely injured her. The plaintiff sued the City of New York alleging that based on her telephone conversation with the police, the City had a "special relationship" with her that created a duty of care and that defendant was negligent in not arresting the boyfriend before the attack. A jury found in plaintiff's favor. The Court of Appeals vacated the jury verdict. The Court stated that although a municipality owes a general duty to the public to provide police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. A special duty is created when (1) a municipality assumes through actions or promises an affirmative duty to act on behalf of the injured party, (2) there is knowledge that inaction could lead to harm, (3) there is direct contact between the municipality's agents and the injured party, and (4) the injured party reasonably relies on the agent's affirmative undertakings. Here, the Court found that there was no special duty owed to the plaintiff merely based on the police making an alleged assurance to arrest her boyfriend "immediately." The Court determined that whatever reliance the plaintiff placed on the police assurance that they would arrest the threatening boyfriend "immediately" was unreasonable as a matter of law. The plaintiff had not told the police where they could locate the boyfriend and, therefore, the plaintiff could not assume that the police could locate him so quickly as to effectuate an immediate arrest. She could not reasonably assume that the boyfriend had been taken into custody enabling her to return safely to her home.

In the case of Simon v. Usher, 17 N.Y.3d 625 (October 18, 2011), the Court of Appeals reviewed CPLR 2103(b)(2), the statute that allows a five day extension for responding to a mailed paper when the mailed paper requires a response within a stated time period. This case involved change of venue papers under CPLR §511(b). Venue was laid by the plaintiff in Bronx County. Defendant maintained that Bronx was improper because it was not the residence of any party. Defendant moved to change venue to Westchester County. Under CPLR 511(b), the defendant must thereafter move to change the place of trial within fifteen days of service of the demand. The issue for the Court here was whether under CPLR 2103(b)(2) the 15 days to move to change venue became 20 days after the defendant mailed the original demand. If it did, defendant's motion was timely. If it did not, defendant's motion was too late and the case would stay venued in the Bronx. The Court of Appeals held that the 15 days did become 20 days because defendant mailed out the demand. The Court held it did not matter that defendant was "responding" to his own demand because CPLR 2103(b)(2) does not contain language restricting its application to instances where a party is responding to papers served by another.

In the case of Kuebler v. Kuebler, 90 A.D.3d 1611 (4th Dept., 2011), the plaintiff commenced an action against his son seeking damages for injuries plaintiff sustained as a sole passenger of his own vehicle which his son, the defendant, was operating with a learner's permit. The vehicle left the roadway and struck a tree. The plaintiff was aware that defendant had only a learner's permit at the time of the accident. The Court below granted plaintiff's motion for summary judgment indicating that defendant's negligence was the sole cause of the plaintiff's injuries. The Appellate Division, Fourth Department, modified the order of the lower court as to the issue of the plaintiff's comparative fault. The Appellate Division held that a licensed driver supervising an unlicensed driver with a learner's permit owes a duty to use reasonable care as an instructor and a duty to take measures to prevent negligence on the part of the driver with the learner's permit. The Court held that there were triable issues of fact as to the plaintiff's comparative fault because the testimony established that the plaintiff was distracted and not paying attention when the accident occurred. The plaintiff testified that he did not know the vehicle was going off the roadway until he felt the tires go off the shoulder.

In Gurnett v. Town of Wheatfield, 2011 WL 6848478 (4th Dept. 2011), there was an appeal from an order of the Supreme Court which denied the application of the plaintiff for leave to serve a late notice of claim upon the Town. Unless excused by the Court a notice of claim should be served within 90 days of the date of occurrence. Here, plaintiff, an employee of the Town of Wheatfield, originally served a notice of claim alleging that she had been subjected to a hostile work environment beginning on December 4, 2009. Following a hearing pursuant to General Municipal Law § 50-h, the plaintiff sought leave to amend the notice to reflect that the conduct complained of began on May 29, 2009. The Appellate Division, Fourth Department reversed the lower court. The Appellate Division held that courts have wide discretion in determining whether to grant leave to serve a late notice of claim but in this case the lower court abused its discretion. Here plaintiff established that she had filed written reports with the Town as her employer in June 2009. Defendant made no showing that delay in filing the notice of claim caused it substantial prejudice.

Prepared by Kristen B. Degnan