By C. Briggs Johnson

In Grady v. Chenango Val. Cent. School Dist., 2023 NY Slip Op 02142 (Apr. 27, 2023), the Court of appeals recently decided two cases and reaffirmed that the “primary assumption of the risk doctrine” (a doctrine that prevents a plaintiff from recovering damages in a personal injury lawsuit altogether) is still “applicable only in a narrow set of circumstances, in recognition of the fact that ‘athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks.’” Id., quoting, Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395 (2010).

Here are the two important takeaways from these cases: (1) that the assumption of the risk doctrine is only rarely applicable in personal injury lawsuits in New York; and (2) the facts always and truly matter.  If a plaintiff injures him or herself in a recreational or sporting activity for a risk that is inherently involved with participating in that sport or activity (falling off a horse, or an errant baseball throw, for example), then a plaintiff’s action will likely fail.  However, if a plaintiff injures him or herself for a risk that is not normal, logical, or inherent in that sport or activity – if the risk is unique, or heightened, or unrelated to that sport or activity – then a plaintiff will likely still be able to recover damages in a personal injury lawsuit.

The Court in Grady further explained that plaintiff’s action will be barred when he or she “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” inherent in the relevant athletic or recreational activity. Grady, 2023 NY Slip Op 02142, quoting, Custodi v. Town of Amherst, 20 N.Y.3d 83, 88 (2012).  By contrast, a plaintiff is not “deemed to have assumed ‘risks that are concealed or unreasonably enhanced’” by such activities.  Grady, 2023 NY Slip Op 02142, quoting, Custodi, 20 N.Y.3d at 88.

Applying these principles, the Court of Appeals decided two different cases.  In Secky v. New Paltz Central School District, the Court of Appeals affirmed the dismissal of plaintiff’s complaint where he injured his shoulder during a basketball practice drill where the players were competing to retrieve a rebound.  There, plaintiff’s coach explained that the boundary lines of the court would not apply during the drill, and that only major fouls would be called; and the bleachers stationed near the court were retracted.  Plaintiff injured himself while pursuing a loose ball towards the bleachers when another player collided with him, causing plaintiff to fall into the bleachers and injure his right shoulder.   The complaint was deemed meritless because the Court of Appeals had already held that “the risk of collision [with an open and obvious item near a basketball court]” is an inherent risk in playing basketball.  Grady, 2023 NY Slip Op 02142, quoting, Trevett v. City of Little Falls, 6 N.Y.3d 884, 885 (2006).

By contrast, in Grady v. Chenango Valley Central School District, the Court found issues of fact regarding whether plaintiff assumed the risk of his injury while participating in a baseball drill.  The drill involved baseballs to be thrown from two parts of the infield to two players in close proximity to each other in the same area at first base.  A protective screen was set up to try and protect both players near first base.  However, an errant baseball bypassed one of the first baseman and the screen and hit the other first basemen, causing serious injuries.  The Court found issues of fact because the drill – which involved two first baseman close to each other and two baseballs being thrown in their direction (of course, there is usually only one baseball and first basemen in a normal baseball game) – “‘was unique and created a dangerous condition over and above the usual dangers that are inherent’ in baseball.”  Grady, 2023 NY Slip Op 02142, quoting, Owen v. R.J.S. Safety Equip., Inc., 79 N.Y.2d 967, 970 (1992).

On May 8, 2023, a Brooklyn jury returned a defense verdict following a one-week trial handled by Matthew Vitucci. The trial involved the claim by Plaintiff, Ausencio Aguirre Martinez, that he slipped and fell from a defectively constructed and inadequately maintained service entry stairway located between the lobby and basement of a building located 1056 5th Avenue, in Manhattan.

At trial, counsel for Plaintiff presented testimony, photographs and video of the incident which showed that Plaintiff, an appliance deliveryman, attempted to deliver, by himself, a 450-pound washing machine down the 22 service entry steps. He lost his balance and fell from the midpoint of the staircase.

Plaintiff claimed to have sustained various and severe injuries from the fall including a fracture dislocation of the right shoulder and lumbar herniations.

Plaintiff claimed that his fall was occasioned by a buildup of water on the steps; he claimed that melting snow from a storm, days earlier, led to melting and that wetness on the sidewalks surrounding the building was tracked into the service area stairway leading to a hazardous condition. Plaintiff alleged that the Defendants failed to inspect, clean, or maintain the steps. It was the further claim of plaintiff that the subject stairway contained treads of non-uniform height which contributed to the fall. 

On cross examination, it was highlighted that plaintiff worked with a partner who was available to assist with the delivery of the washing machine. The co-worker admitted on the stand that plaintiff’s taking a heavy piece of equipment down the stairway by himself was dangerous given the number of stairs.

Plaintiff produced an expert to opine on the various allegations presented; the expert’s testimony was limited following a successful challenge via various motions in limine which pointed out that the expert’s conclusions were not supported by any applicable building codes.

Following closing arguments, the jury returned a verdict for the defense after brief deliberations.

Congratulations to Pat Cooney. Following a three week trial in Erie County, New York, the jury returned a verdict finding that our client, Kelvin Sharpe, a bus operator for Pine-Hills/Trailways, was not responsible nor did he contribute to the happening of the accident.

Seven of the passengers brought suit against our clients with combined settlement demands of over 6M. A “Litigation Coordination” order directed liability be tried in Erie County (1st suit filed). Two of the damages cases which are venued in Supreme Court, Bronx County will now be tried against the tractor trailer driver and his employer only.

The lawsuit arose from a 3 vehicle accident occurring at 2:30 a.m., on November 6th2014, on I81, just south of Syracuse New York. Before the accident, defendant Tarbell (25/50 policy) left his car abandoned in the left passing lane in a perpendicular manner across the lane. Codefendant, a tractor trailer driver, who was traveling in the right lane before the accident admitted to the police that the car was “practically invisible” and you could not see it before “you were on top of it”.

The tractor trailer driver pulled over to the right to see if anyone was in the car. Unfortunately he pulled over in an area where the shoulder tapered because there was a bridge ahead, leaving his trailer “half in and half off” the right travel lane. As the driver was exiting his cab, he saw the bus and another uninvolved tractor trailer approaching. He realized there was going to be an accident.

The bus struck the Tarbell vehicle at 65 mph., throwing the vehicle 100’ down the highway. It came to a rest on the left median. Kelvin remembers little to nothing about the accident. With expert testimony, use of police photos, DDEC data, ECM data and other investigation we were able to reconstruct the accident. Kelvin made an evasive maneuver to the right, gradually moving across the right lane (to prevent bus from tipping over), struck the guide rail and regained some control by turning back to the left. Unfortunately, Mr. Sharpe was not able to ride the guide rail and stop the bus because the tractor trailer was parked on the roadway. The driver of tractor trailer had tried to move, but was not able. Much of the testimony which tried to establish the tractor was on the shoulder was easily refuted with introduction of 2 photos showing the damage to the bus and the tractor trailer. The trailer sustained heavy damage to its right side. The left front of the bus (driver’s compartment) sustained massive damage. The off-setting damage clearly established the tractor trailer was in the right lane when it was struck by the bus.

Allegations against Mr. Sharpe included reckless driving, speeding, failure to break and failure to use high beams. The 2nd tractor trailer operator, who escaped the accident, provided favorable testimony. The jury deliberated for 2.5 hours finding the Tarbell vehicle 70% negligent and the tractor trailer 30% negligent.

We are excited to report that we successfully defended a jury verdict in our clients’ favor in the Appellate Division, Second Department (Rosenberg v. Hanasab, 2023 NY Slip Op 02136, 1 [2d Dep’t Apr. 26, 2023]).  This case arose out of an alleged slip and fall on ice on our clients’ property (the steps leading into their home).  But our trial attorney, Kim Townsend, successfully persuaded the jury that no snow or ice existed on the stairs on the date of the accident, and that there was a storm in progress at that time.  Kim also highlighted how the ambulance call report indicated that plaintiff told the ambulance personnel that she fell in the street, and not on our clients’ steps.

On appeal, plaintiff’s main argument was that the ambulance call report was unauthenticated and inadmissible, and that allowing this into evidence was prejudicial to plaintiff, requiring a new trial.  However, our appellate attorney, C. Briggs Johnson, showed that the ambulance report was properly admitted into evidence because it was satisfactorily attributed to plaintiff, and it contained a statement inconsistent with her position at trial.

The Appellate Division, Second Department, agreed with us.  They held that the balance of the evidence demonstrated that our clients were not negligent for the accident, and that plaintiff’s argument regarding the ambulance report was “without merit.”

Congratulations to first year associate, Matthew Finegan!

We are thrilled to announce that Matthew has officially been admitted to practice law in the State of New York! Well done on passing the bar exam and achieving this significant milestone in your legal career.

Matt works with Matthew Vitucci and Pat Cooney handling premises and commercial transportation matters.

 

Plaintiff, an employee of the general contractor, was standing atop a metal step ladder when an exposed wire came in contact with his ladder. Based upon a post-accident investigation, it was determined that someone had stripped a fluorescent light, plugging the stripped wires of the light into an extension cord allowing the exposed wires to meet the metal ladder.  At the time of the accident, plaintiff was installing metal framing in the ceiling, so when he grabbed the ceiling frame, he completed the circuit resulting in his death by electrocution.

Plaintiff’s estate sued the building owner and the tenant and our client, the electrical subcontractor. The plaintiff’s employer, the general contractor, was impled as a third-party defendant due to plaintiff’s grave injury.

On our motion for summary judgment, the Court agreed with our argument that our client, the electrician contractor, was not a proper Labor Law defendant as we did not direct, control, or supervise the work being performed by plaintiff. The Court also agreed with our argument that it was plaintiff’s employer who was responsible for electrical safety on the job site and that our client did not cause, create or have notice of any alleged defect, successfully achieving dismissal of all common law claims.

By William Parra

The Grieving Families Act (the “Act”), which the New York State Legislature passed on the final day of the June 2022 legislative session, was vetoed by Governor Hochul last night, as the Act formally expired. This followed an op-ed she published yesterday supporting the amendment of the wrongful death statute to expand recovery, particularly for the families of deceased children.

The Act expanded the types of damages recoverable in wrongful death suits, where recovery is presently limited to “pecuniary losses” of a decedent’s distributees, which is generally limited to a decedent’s future lost earnings. Although case law allows recovery of pecuniary loss in the form of a decedent’s pre-death conscious pain and suffering and for loss of parental support, guidance, assistance and inheritance, these damages are often difficult to prove. The Act sought to 1) permit a decedent’s survivors (vaguely defined as “close family members”) to recover for their own “emotional anguish” or pain and suffering; 2) extend the applicable statute of limitations from 2 to 3.5 years; and 3) take immediate, retroactive effect in all pending wrongful death suits.

In vetoing the Act, Governor Hochul voiced her support for the proposed expansion of the existing statute, citing the inequity against the families of minors and others in valuing a life based solely on its future earning potential. However, she cited the following concerns with the scope, financial impact and other “significant unintended consequences” of the Act, as drafted:

The Governor called for serious evaluation and study of the financial impact of these expansive changes on these groups particularly, and on the New York State economy generally. Most significantly, she agreed with opponents of the Act that have argued that the State’s constitutional prohibition against limits on jury verdicts on damages must be studied and considered. This refers to the fact that although almost every other state allows for some or many of the expanded classes of beneficiaries or types of damage claims the Act sought to add, but each of those states also have laws capping verdicts on such damages, which New York does not.

The Governor’s veto indicates that the drive to significantly expand the scope of the wrongful death statute is only temporarily defeated, that she is sympathetic and in favor of its expansion, but that she will only sign a bill that considers the overall impact to the general economy.

Should you have any questions, please do not hesitate to contact Howard Klar or William Parra.

Gallo Vitucci Klar LLP is proud to announce that 12 of our Partners and Associates have been named to the Super Lawyers and Rising Stars list for the year 2022. These GVK recipients have been recognized as the top attorneys in the New York Metro area for 2022. No more than 2.5 percent of lawyers in the state are selected per year to the Super Lawyers or Rising Stars listings, yet many of our attorneys have been named to the list year after year. Approximately 20% of our attorneys have received this recognition this year.

2022 Rising Stars

The GVK 2022 Rising Stars include, Partner, Jessica Clark who was selected to the Rising Stars list for her tenth consecutive year for her excellence in construction and general litigation. Partner, Brandon Weinstein was selected to the Rising Star list for his second consecutive year for his excellence in civil litigation and personal injury. Partner, Ancilla Dias-Pinto was selected to the Rising Star list for her second consecutive year for her excellence in personal injury.

2022 Super Lawyers

In addition to these three Rising Stars, Senior Partners; Howard P. Klar, Matthew J. Vitucci and Partners; Jeannine Davanzo, Stephen A. Hoffman, Heather C. Ragone, Bryan T. Schwartz, Patrick J. Cooney, Joe J. Rava, and Shanna R. Torgersen have been named to the 2022 New York Metro Super Lawyers List.

Senior Partner, Howard P. Klar has been named to New York Metro Super Lawyer List for his eleventh consecutive year in civil litigation defense. Senior Partner, Matthew J. Vitucci has been named to New York Metro Super Lawyer List for his tenth consecutive year in Civil litigation and Personal injury defense.

Partner, Patrick J. Cooney was selected for his second consecutive year in personal injury, civil litigation, construction litigation, insurance coverage, personal injury and transportation/maritime defense. Partner, Jeannine Davanzo was selected to the listing for her seventh consecutive year for her excellence in personal injury and construction litigation. Partner, Stephen A. Hoffman was selected for his seventh consecutive year in civil litigation defense. Partner, Heather C. Ragone was selected for her seventh consecutive year in transportation/maritime and insurance coverage defense. Partner, Bryan T. Schwartz was selected for his second consecutive year in personal injury defense. Partner, Joe J. Rava was selected for his second consecutive year in personal injury, appellate and insurance coverage defense. Partner, Shanna R. Torgersen was selected for her second consecutive year in professional liability, civil litigation, personal injury/general, personal injury/products and construction litigation defense.

Over the past few months GVK has added a number of attorneys across all experience levels to the firm in our various practice groups. The addition of these attorneys furthers our ability to provide to our clients the highest level of legal services in our industry. GVK is pleased to welcome Amanda Aiello, James Burbage, Debora Dillon, Scott Eisenberg, Matthew Finegan, Nadine Ibrahim, Michael Liloia, Tom Muldoon, Daniel Nachman, Paul  Pastore, David Roemer, Isaac Rosen, Dennis Swanson, John Szewczuk, Rachel Trauner and Sebastian Vollkommer to the firm.

ATTORNEYS

Amanda Aiello joins GVK as an Associate.  Amanda has over six years’ of experience litigating complex matters and more than four years of civil tort litigation including premises liability, constriction litigation, labor law claims, and general liability matters. Amanda works out of the Woodbury, NY office.

James Burbage joins GVK as a Partner.  James has over 30 years’ experience handling, negligence claims encompassing: auto, trucking, slip and trip and falls, Labor Law, subrogation, property damage, coverage, and public entities.  James works out of the Irvington, NY office.

Debora Dillon joins GVK as Of Counsel.  Debora has over 29 years’ experience, handling predominantly premises liability and vehicular/transportation liability matters. Debora works out of the Irvington, NY office.

Scott Eisenberg joins GVK as an Associate.  Scott has over 16 years’ experience handling premises liability, motor vehicle accidents, negligent security, property damage, New York Labor Law 240/241, and DRAM Shop cases.  Scott works out of the Woodbury, NY office.

Nadine Ibrahim joins GVK as an Associate.  Nadine has over six years’ experience handling both criminal matters and civil liability defense. Nadine works out of the Hackensack, NJ office.

Michael J. Liloia joins GVK as an Associate.  Michael has over 14 years’ experience handling general liability and personal injury litigation.  Michael works out of the Hackensack, NJ office.

Tom Muldoon joins GVK as a Partner. Tom has over 25 years’ experience in multiple jurisdictions focused on defending construction site accidents, premises liability claims, catastrophic injury claims, automotive liability claims, insurance coverage and contractual claims.  Tom works out of the Irvington, NY office.

Daniel Nachman joins GVK as an Associate.  Daniel formerly served as a judicial law clerk to the Honorable Mary F. Thurber in the New Jersey Superior Court.  Daniel works out of the Hackensack, NJ office.

David Roemer joins GVK as an Associate.  Daniel has over 15 years’ experience handling New York Labor Law, premises liability and commercial automobile claims.  David works out of the Hackensack, NJ office.

Isaac Rosen joins GVK as an Associate.  Isaac has over three of years’ experience handling personal injury, premise liability, product liability, labor law, construction law, insurance defense, elevator/escalator, and workers’ compensation law.  Isaac works out of the Hackensack, NJ office.

John Szewczuk joins GVK as an Associate.  John has over 40 years’ of experience in trying general negligence cases including labor law/construction, sidewalk, lead paint, premises liability including trip and falls, building fires, and motor vehicle accidents. John works out of the 90 Broad Street, NY office.

Rachel Trauner joins GVK as Of Counsel.  Rachel has over ten years’ experience handling complex, construction accident, construction defect, premises liability, and automobile liability claims.  Rachel works out of the 90 Broad Street, NY office.

FIRST YEARS

Matthew Finnegan joins GVK as an Associate.  Matt graduated in May of 2022 from St. John’s University School of Law.  He has passed the New York State Bar Examination and is currently awaiting admission to the New York State Bar.  Matthew works out of the Woodbury, NY office.

Sebastian Vollkommer joins GVK as an Associate.  Sebastian graduated in May of 2022 from St. John’s University School of Law.  He has passed the New York State Bar Examination and is currently awaiting admission to the New York State Bar.  Sebastian works out of the 90 Broad Street, NY office.

Dennis Swanson joins GVK as an Associate. Dennis graduated in 2021 from the Maurice A. Deane School of Law at Hofstra University. He has passed the New York State Bar Examination and is currently awaiting admission to the New York State Bar.  Dennis works out of the 90 Broad Street, NY office.

Paul Pastore joins GVK as an associate. Paul graduated in May from St. John’s law. He has passed the New York State Bar Examination and is currently awaiting admission to the New York State Bar.  Paul  works out of the 90 Broad Street, NY office.

Matthew Finegan, Daniel Nachman, Paul Pastore and Sebastian Vollkommer have each passed the NY State Bar exam and will be admitted to practice in the coming months!