In Parslow v. Leake, 984 N.Y.S.2d 493 (4th Dept., 2014), the plaintiff, who was 18 years old at the time of the incident commenced an action for damages he allegedly sustained when he fell from the second story window of a fraternity house while in a restroom. One of the defendants, a resident of the premises, represented by Michael J. Chmiel of Chelus, Herdzik, Speyer & Monte, P.C., moved for summary judgment to dismiss the claims against him. Against that defendant, plaintiff claimed a failure to control the conduct of third persons for the protection of others on the premises and a failure to provide adequate supervision of minor guests who become intoxicated in the fraternity house.

The Appellate Division, Fourth Department acknowledged that hosts of parties where alcohol is consumed, risk exposure to liability under two distinct theories of negligence: (1) the duty of an owner/occupant to control the conduct of third persons for the protection of others on the premises and (2) the duty to provide adequate supervision for minor guests who become intoxicated in their home.

The Court found the duty to "control the conduct of third persons" inapplicable because the injuries alleged by plaintiff were not caused by the conduct of another intoxicated guest on the premises. Additionally, the Court rejected the "duty to supervise minor guests who become intoxicated" theory as the plaintiff was under the age of 21 but was over the age of majority, 18. The Court concluded that the defendants had no duty to protect the plaintiff from the results of his own voluntary intoxication.

In Gawron v. Town of Cheektowaga, NY Slip Op 03051 (4th Dept., May 2, 2014), plaintiffs husband and wife commenced an action seeking damages for the injuries they allegedly sustained when their vehicle, operated by plaintiff husband, was struck by a truck owned by the defendant Town of Cheektowaga and operated by defendant town employee. The truck was equipped with a plow. At the time of the accident the plow was lowered to the ground as defendant driver was in the process of using the plow to remove accumulated water and debris from the roadway. Water was propelled onto the windshield of the truck blocking the employee's vision and causing him to cross-over into an oncoming lane and into the plaintiff's vehicle. Plaintiffs moved for partial summary judgment on the issue of defendants' negligence. Defendants, represented by Art Herdzik and Martha Donovan of Chelus Herdzik, cross-moved for summary judgment dismissing the complaint. The trial court denied all motions. Defendants appealed.

Vehicle and Traffic Law §1103, in effect, exempts all persons while engaged in work on the highway from the negligence standard of care. Instead §1103 imposes a reckless disregard standard of care. The town argued that Vehicle and Traffic Law §1103(b) applied as a matter of law and that defendant driver was not acting recklessly at the time of the accident. Plaintiffs contended that because defendant driver was not performing work which was specifically assigned to him the exemption under Vehicle and Traffic Law §1103(b) did not apply.

The Fourth Department acknowledged that, at the time of the accident, the work being conducted by defendant driver was not work he had been specifically assigned on the date of the incident. However, the Court reasoned the statute, by its language, does not exempt only those vehicles engaged in "assigned" work. The Court concluded that all municipal vehicles actually engaged in work are exempted from the rules of the road. Therefore, the Appellate Division held that the reckless disregard standard of care set forth in Vehicle and Traffic Law §1103(b) applied to the town and its driver. The Fourth Department declined to decide whether defendant driver's conduct rose to the level of reckless disregard within the meaning of Vehicle Traffic Law §1103(b) concluding that plaintiff submitted evidence from which a jury could find that defendant driver acted with reckless disregard.

In Isabella and Hallock v. Koubek, --- N.E.3d ---- (March 27, 2014), the Second Circuit Court of Appeals certified the following question to the New York Court of Appeals: "whether defendant may pursue a third-party contribution claim under New York Vehicle and Traffic Law §388 against the owner of a vehicle, where the vehicle driver's negligence was a substantial factor in causing the plaintiffs' injuries, but the driver is protected from suit by the exclusive remedy provisions of New York Worker's Compensation Law §29(6)?" Isabella v. Koubek, 733 F.3d 384 (2d Cir., 2013).

Plaintiff Isabella was riding back from a business meeting with his co-worker in an automobile owned by the co-worker's husband, Koubek. The vehicle in which the plaintiff was a passenger collided with a vehicle driven by defendant third-party plaintiff, Doris Hallock. Plaintiff Isabella sustained injuries in the accident but was precluded from bringing an action against his driver by §29(6) of the Worker's Compensation Law because the driver was his co-worker. Plaintiff Isabella and his wife (suing derivatively) later commenced a personal injury action against Doris Hallock in Federal Court based upon diversity of citizenship. In the absence of a grave injury or written indemnification agreement Hallock was barred from commencing a third party action against the co-employee driver of the Isabella vehicle. However defendant Hallock filed a third-party action against the vehicle owner Koubek, the owner of the automobile in which plaintiff was riding, seeking contribution and indemnification.

Defendant Hallock argued that plaintiff Isabella's injuries stemmed from plaintiff's co-worker's negligence and that Koubek, as the owner of the vehicle, was vicariously liable pursuant to Vehicle and Traffic Law §388. Koubek moved for summary judgment dismissing the third-party complaint arguing that his wife's statutory immunity stemming from the Worker's Compensation Law shielded him from Hallock's vicarious liability claim as well.

The New York Court of Appeals stated that §29(6) and §11 of the Worker's Compensation Law make worker's compensation benefits the exclusive remedy of an injured employee and therefore bar an employee from recovering against a negligent co-worker or employer. The Court of Appeals noted that third-party defendant Koubek's liability was purely vicarious under the Vehicle and Traffic Law and that he was not himself a culpable wrongdoer. The Court, relying on its prior decisions, held that because plaintiff's driver (and co-worker) was statutorily immune from suit, there could be no liability imputed to the owner (the co-worker's husband) and no action could be sustained against him.

In Dodds v. Town of Hamburg, 2014 NY Slip Op 03060 (4th Dept., May 2, 2014), plaintiffs appellants commenced a personal injury action against the Town of Hamburg for injuries they sustained during a collision with a Town of Hamburg police vehicle. While travelling southbound on Route 75 in the Town of Hamburg near the Lakeshore Road intersection, the officer observed a vehicle travelling northbound with snow covering its windshield and the driver operating the vehicle with his head sticking out the window. The officer engaged his left turn signal prior to making a U-turn to pursue the vehicle but did not activate his emergency lights or sirens. While turning, the officer collided with another southbound vehicle, occupied by plaintiffs. The trial court denied defendant Town of Hamburg's motion for summary judgment and denied plaintiff's cross-motion for partial summary judgment on the issue of negligence. Both parties appealed.

The Appellate Division, Fourth Department held that the Supreme Court erred in denying the defendant's motion for summary judgment because at the time of the accident defendant police officer was operating an "authorized emergency vehicle" under Vehicle and Traffic Law §1104(a) and was engaged in an "emergency operation" when he attempted the U-turn to pursue an actual or suspected violator of the law. Therefore, the reckless disregard standard of care expressed in Vehicle and Traffic Law §1104(e) applied.

The Fourth Department also noted that "a momentary judgment lapse does not alone arise to the level of recklessness required of a driver of an emergency vehicle in order for liability to attach." The complaint was dismissed.

In Downie v. McDonough, 2014 NY Slip Op 03048 (4th Dept., May 2, 2014), plaintiff commenced an action for injuries she sustained in a motor vehicle accident. In her bill of particulars, plaintiff alleged that as a result of the accident she sustained a serious injury under the permanent consequential limitation of use, significant limitation of use, and 90/180 day categories set forth in Insurance Law §5102(d). Defendant moved for summary judgment dismissing the complaint on the grounds that the plaintiff did not sustain a serious injury within the meaning of those categories. The Supreme Court granted the motion only with respect to the 90/180 day category.

In support of his motion for summary judgment, the defendant submitted the affirmed report of an orthopedic surgeon who examined the plaintiff less than three months after the accident, reviewed her medical records, and concluded there was no objective evidence to substantiate plaintiff's subjective complaints of pain or to warrant further orthopedic treatment. The defendant also submitted copies of plaintiff's medical records including the x-ray report from the date of the accident. The x-rays revealed no fractures, disc herniations, subluxations, soft tissue swelling or any other abnormalities in the cervical, thoracic, or lumbrosacral spine. Additionally, during her deposition, the plaintiff testified that she had returned to her physically demanding job as a full time house cleaner less than two months after the accident.

In opposition to defendant's motion, plaintiff submitted the certified records of her treating chiropractor which included an MRI report reflecting the existence of bulging discs in plaintiff's cervical spine.

The Appellate Division, Fourth Department stated "that proof of a herniated or bulging disc without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury." The Court noted that plaintiff relied on mild to moderate range of motion limitations in her cervical spine exhibited the day after the accident. According to plaintiff's treating chiropractor, less than four months after the accident, plaintiff exhibited normal flexion, extension and right lateral bending. Plaintiff's range of motion restrictions were approximately 10-11% for left lateral bending and bilateral rotation. The Court concluded that those limitations were minor, mild or slight and thus properly characterized as insignificant or inconsequential within the meaning of the statute. Moreover, subjective complaints of pain or headaches are insufficient to establish a serious injury.

The Fourth Department reversed the Supreme Court's decision on the law and granted defendant's motion for dismissal in its entirety.

Prepared by Christopher S. Safulko