The defendant in Caldwell v. Cablevision Sys. Corp., 20 N.Y.3d 265 (February 7, 2013) called one of the plaintiff's treating physicians as a fact witness to testify how the plaintiff's trip and fall occurred. The plaintiff's physician had made a note in his treatment records that the plaintiff told him she tripped over a dog. This did not correspond with her complaint where she alleged she tripped over a defective surface. The defense paid the plaintiff's physician "$10,000" for one hour of testimony. The plaintiff's counsel objected to the excessiveness of the fee paid to the witness and requested that the Court strike the testimony or provide a jury charge commenting on the excess fee. The lower court denied the request and only gave the jury a general bias charge.

The Court of Appeals held that payment of more than the statutory daily fee of $15 to a fact witness is not precluded but the matter of amount is always ripe for questioning and cross-examination. The Court further held that the ideal jury charge in this case would have directed the jury to assess whether the compensation was disproportionately more than what was reasonable for the witness's lost time from work and whether it had an effect on influencing the testimony. The Court noted that this particular Dr. was only called as a "fact witness". Query whether such a charge could be given to a Dr. who is called as a witness to give medical testimony?

In Bielicki v. Excel Industry Inc., (4th Dept., March 22, 2013) the plaintiff commenced an action seeking damages for injuries he allegedly sustained while delivering a package to the defendant's property. Plaintiff allegedly was injured after he attempted to open a stuck door. According to the plaintiff, the defendant had prior notice that the door "stuck on occasion". Defendant moved for summary judgment and argued a door that would not open was not an inherently dangerous condition which would give rise to a duty in tort. The Fourth Department overturned the lower court's decision which granted summary judgment for the defendant. In its decision the Fourth Department held that a stuck door could constitute a dangerous condition and that the risk that a person attempting to pull open such a door might injure himself is arguably foreseeable.

The plaintiff in Hale v. Meadowood Farms of Cazenovia, (4th Dept., March 22, 2013) commenced a Labor Law action seeking damages for injuries he sustained when he fell off a ladder while helping reconstruct a barn for the defendants. In their underlying motion for summary judgment, the defendants argued that the homeowner exemption relieving owners of "one to two family dwellings" from liability under Labor Law §240 applied to them. In overturning the lower court's decision which dismissed the plaintiff's Labor Law §240(1) claim, the Fourth Department pointed to the conflicting testimony from the individual defendant shareholders as to whether this barn was used in the commercial operations of the company. The Fourth Department held that those inconsistencies presented credibility issues which must be resolved at trial.

The plaintiff in Chambers v. Evans, (4th Dept., March 22, 2013) was an automobile mechanic who was injured while servicing the defendant's vehicle. The defendant took his vehicle to the plaintiff's place of employment to have work performed. While he was working on the vehicle, the plaintiff produced an electrical short which caused the vehicle to unexpectedly start. The plaintiff was dragged by the vehicle a distance with resulting injuries. The plaintiff alleged that the defendant failed to warn the plaintiff that the standard transmission vehicle was equipped with a car starter. The Fourth Department affirmed the lower court's denial of the defense's motion for summary judgment. The Fourth Department held that under general tort rules a person may be negligent if he or she fails to warn another of known dangers. Testimony in this case established that the defendant was aware of the risks posed by the existence of a remote car starter in standard transmission vehicles. Based on the testimony, the Fourth Department held that the defendants had a duty to warn the plaintiff of this allegedly dangerous condition.

The plaintiff in Williams v. Weatherstone, (4th Dept., March 22, 2013) commenced an action on behalf of her twelve-year old daughter following an accident at the child's bus stop. The record established that shortly before the accident plaintiff's daughter was waiting for her school bus at the end of her driveway when the bus driver mistakenly passed her. The bus continued a short distance then turned around and approached the child on the opposite side of the road. The bus driver testified that he intended to make another turn in order to pick up the child at her stop. However, the child crossed the road in an effort to catch the bus on the opposite side when the co-defendant's vehicle struck her. The lower Court denied the defendant School District's motion and held that the defendant owed a duty to the child. The Fourth Department agreed and held that the School District breached its duty to transport the child to school in a safe manner. The two Judge dissent held that the School District did not owe a duty since at the time of the accident the defendant had not assumed "physical custody of the child" and thus "she remained out of the orbit of its authority".

Prepared by Kevin E. Loftus