In Kweh v. Edmunds, (March 28, 2012, 4th Dept.), the plaintiff's estate commenced a wrongful death action stemming from a motor vehicle accident which occurred when a vehicle operated by decedent Kweh crossed over into the defendant's lane of travel. The defendant made a motion for summary judgment based on the emergency doctrine. In order to succeed on an emergency doctrine defense, it must be established that the plaintiff's vehicle "suddenly entered the lane where defendant was operating his vehicle" and "that there was nothing defendant could have done to avoid the collision". The Fourth Department held that the defendant's own testimony raised an issue of fact as to whether he was negligent in failing to take sufficient evasive action to avoid the accident.

The plaintiff in Radford v. Peerless Insurance Company, (March 28, 2012, 4th Dept.), made a claim against her insurance agent under a number of theories including negligent misrepresentation and breach of fiduciary duty arising from the agent's alleged failure to procure certain insurance coverage. The Fourth Department dismissed the plaintiff's complaint and held that since there was no "special relationship" between the plaintiff and her insurance agent, the agent never owed a fiduciary duty to the plaintiff and could not be held liable under any of the alleged theories of negligence. The Court further held that liability for negligent misrepresentation can only be imposed against those individuals who are in a "special position of confidence and trust with the injured party". There was no such relationship presented in the Radford case.

The plaintiff in Paveljack v. Cirino, (March 28, 2012, 4th Dept.), alleged a serious injury under Insurance Law §5102(d) as a result of a motor vehicle accident. In its motion for summary judgment, the defendant established that the plaintiff's complaints of pain had fully resolved within approximately one and a half months after the accident. The plaintiff then stopped all treatment for approximately two and a half months. The plaintiff failed to offer an explanation for that cessation of her symptoms and treatment and, as a result, her claim was dismissed.

The plaintiff in Bannister v. L.P. Ciminelli, (March 28, 2012, 4th Dept.), commenced action after he slipped and fell on ice while working in an open courtyard at a school renovation project. The plaintiff alleged a violation of Labor Law §241(6). The plaintiff's 241(6) cause of action was premised solely upon a violation of 12 NYCRR 23-1.7(d). That code section prohibits employers from allowing any employee to use "a floor, passageway, walkway, scaffold, platform or any other elevated working surface which is in a slippery condition". The Fourth Department held that since this accident occurred in an "open area" and not on a defined walkway, passageway or path, 12 NYCRR 23-1.7(d) did not apply and dismissed the case.

In Hastings v. Sauve, (April 5, 2012, 3rd Dept.), the plaintiff was injured when her vehicle collided with a cow which had wandered onto Route 53 from the defendant's farm. Plaintiff alleged that the defendants were negligent in not properly confining the cow to the pasture and by allowing it to wander onto the adjacent highway. The Court noted that this particular claim involving domestic animals could only proceed under strict liability based on the owner's knowledge of the animal's vicious propensities and not on simple common law negligence. These particular plaintiffs failed to allege strict liability. Nevertheless, the Court held it would still have dismissed the plaintiff's case since there was no evidence that this particular cow had a "vicious or abnormal propensity" that caused this accident. The Third Department made it a point to note its discomfort with the vicious propensity rule in this particular case. According to the Third Department, "the existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendant's legal responsibility for what happened is totally dependent upon it." The Court opined that a case such as this should be ruled by traditional rules of negligence instead of strict liability.

Prepared by Kevin E. Loftus