In Lankenau v. Boles (4th Dept., 2014), the plaintiff, a New York resident, commenced a negligence action in New York seeking damages for injuries she sustained in a motor vehicle accident that occurred in Pennsylvania. In their answers, the defendants asserted an affirmative defense that the plaintiff failed to mitigate her damages by her failure to wear an available seatbelt. Plaintiff moved to dismiss the affirmative defense and the Trial Court denied the motion. The Appellate Division affirmed the Trial Court's ruling holding that the New York common law seatbelt rule which permits the reduction of an award of compensation as to a plaintiff who did not wear a seatbelt applied rather than the Pennsylvania law which prohibited introduction of evidence that a plaintiff was not wearing a seatbelt. The Court reasoned that the New York common law seatbelt rule was a "lost allocating" rule, and, as such, the jurisdiction where the tort happened only has a limited interest in applying its own law as opposed to the jurisdiction in which the case is pending. Accordingly, since the New York common law rule on seatbelt usage serves to allocate the loss by way of comparative negligence, that Court applied New York Law.

In Dominicci v Ford (4th Dept., 2014), plaintiff commenced a personal injury action as a result of a motor vehicle accident in which the plaintiff was rear-ended. During the course of the litigation, the defendant's insurance company retained a physician to conduct an independent medical examination of the plaintiff on behalf of the defendant. Subsequently, plaintiff's counsel served a judicial subpoena duces tecum on the insurance carrier seeking, amongst other things, production of 1099 forms or other wage statements reflecting payments made by the carrier to the examining physician. The defendant's insurance carrier, a non-party, moved to quash the plaintiff's subpoena. In opposition, the plaintiff argued that she intended to use the subpoena documents to cross examine the examining physician at the time of trial with respect to his bias or interest. The trial court denied the motion to quash and the Appellate division affirmed ordering the insurance carrier to disclose the materials sought by the plaintiff in her subpoena. The court reasoned that these materials were relevant as they went to bias, motive or interest of a witness and the plaintiff should be entitled to disclosure of same.

In Bish v. Odell Farms Partnership (4th Dept., 2014), the plaintiff, a cement truck driver, commenced a labor law action seeking damages for injuries he sustained while cleaning a cement truck on property owned by defendant, a dairy farm operator. On the date of the accident, the plaintiff had delivered a load of cement to the farm in a truck owned by his employer. After the truck was unloaded, the plaintiff drove it to an area of the farm property adjoining a ditch in order to wash out the truck. The plaintiff climbed the ladder affixed to the truck and washed out the truck using an attached hose and water tank. As the plaintiff was descending the ladder upon the completion of the cleaning task, he slipped on a wet rung and fell backwards into the ditch. The defendant moved for summary judgment dismissing the complaint and the trial court granted the motion only in part, denying the motion with respect to the plaintiff's Labor Law §240(1) cause of action. In reversing the trial court, the Appellate Division determined that the plaintiff's activity in which he was engaged at the time of injury (i.e. the routine cleaning of his employer's cement truck after making a delivery) should not be afforded Labor Law protection as the plaintiff was not engaged in the cleaning of a building or structure pursuant to the language of the statute.

In Williams v. County of Erie, et al. (4th Dept., 2014), the plaintiff commenced an action seeking damages for injuries she sustained when she allegedly slipped on an accumulation of water in a corridor of a hospital owned and operated by the defendants. Plaintiff was working for a company that had contracted with the defendants to provide food service to the hospital. The defendants moved for summary judgment. The trial court granted the motion. In affirming the trial court's ruling, the Appellate Division concluded that the defendants met their initial burden of establishing that they did not create, nor have constructive notice of the allegedly dangerous condition. The defendants submitted evidence that they cleaned the floors of the corridor using an auto scrub machine during the overnight shift preceding the plaintiff's accident. When the plaintiff arrived for work around 6:30 a.m., she did not notice anything on the floor of the corridor. The defendants also submitted evidence that the corridor is used primarily by food service workers and that the plaintiff's employer had the responsibility for cleaning and maintaining the area during the day shift. The Appellate Division found that there was no testimony that the water was visible and existed for a sufficient length of time prior to the accident to permit the defendants time to discover and remedy it. Therefore, according to the appellate court, plaintiff had failed to establish the existence of a jury issue as to causation or constructive notice.

Prepared by Michael M. Chelus