New York Personal Injury Case Law Update
Ahhhh! Winter! That magical time when fresh snow makes everything look clean for a moment, we’re all taken back to childhood memories of carefree snow days , and…oh, yeah, the time of year when people fall on icy surfaces and get hurt. As we are approaching that season, it is fitting that the Appellate Division, Second Dept. issued a new decision involving just such an accident, which happened in the neighborhood nextdoor to mine. In Groninger v. Village of Mamaroneck, NY Slip Op 08178 (2d Dept. 2009), decided November 10, 2009, plaintiff slipped, fell and injured herself on ice in one of the Village’s municipal parking lots. When she sued the Village, claiming that it had negligently failed to address the icy condition responsible for her accident, the Village move for summary judgment dismissal, based on the lack of prior written notice mandated by CPLR 9804 and the Village Law.
In affirming the lower court’s granting of the Village’s motion to dismiss, the Second Dept. found that the prior written notice requirement applied to municipal parking lots, and that plaintiff failed to show the applicability of either of two exceptions to the written notice requirement: (1) that the Village affirmatively created the condition through negligence that immediately resulted in danger; or (2) that a special use resulted in a special benefit to the Village.
Because she could not defeat the prior written notice requirement, Ms. Groninger’s case was dismissed.
The plaintiff fared better in Bastien v. New York City Transit Authority, Slip Op 08167 (2d Dept. 2009), also decided November 10, 2009. He was beaten and stabbed while riding a City bus, and later brought a negligence action against the NYCTA and the driver, who did nothing to help plaintiff during the assault, failing to even call for help. Defendants moved for summary judgment dismissal, establishing their prima facie entitlement to judgment as a matter of law, by showing that there was no special relationship to plaintiff. However, only a “triable issue of fact” is needed to defeat such a motion, and plaintiff had an effective one in his quiver. He argued that the bus operator’s failure to call for emergency assistance in a timely manner from his position of safety was a proximate cause of his injuries. The lower court found that plaintiff’s argument did indeed raise a triable issue of fact, and noted that if plaintiff were to prove such a scenario, he could recover for his injuries under an exception to the special relationship requirement.
The lower court properly denied the defendants’ summary judgment motion, as the Second Dept. affirmed, and Mr. Bastien will be able to take his case to trial.
Medical Malpractice Caps Are Ill-Advised.Tort “Reform” Hurts.
The New York State Bar Association, of which I am proud to be a member, is yet another nationally recognized and bipartisan organization that sees through the tort “reform” movement. In a November 13, 2009 letter to U.S. Senators Charles Schumer and Kristin Gillibrand, The NYSBA’s President, Michael E. Getnick, urged that “[i]n assessing the current tort system, it is at least as important to consider the victims of malpractice in comparison to those who cause them personal injury. We have seen…that the attack of tort reformers is a movement that favors cost savings over quality and that emphasizes the corporate bottom line over safety of the public.” And he specifically called for a rejection of caps on damages.
“We object to legislation to cap pain and suffering compensation for victims of medical malpractice. Such caps would unjustly discriminate against classes of accident victims who suffer devastating physical and psychological losses.”
And speaking of caps, Michelle Mello, of Harvard’s School of Public Health, is not impressed with them, according to MarketWatch’s HealthMatters Blog. Professor Mello finds that any impact on medical liability has been modest, and the practice raises issues of fairness to victims. However, she and Kristen Gerencher, the post’s author, have some interesting thoughts on health courts.
I’ll rely on Patrick Quinlan, of InjuryBoard, to close today’s post. He points out that John Stossel, sketchy television news reporter and recent vocal advocate for tort “reform,” is a hypocrite, given Stossel’s own use of us “trial lawyers.” But…is it news if we are not surprised?
Somehow, it reminds me of the hypocritical ways of the RNC, and its leader, Michael Steel, who was quite vocal and self-righteous about keeping the dreaded “coverage for abortion” out of President Obama’s health care reform bill. Of course, Republicans, especially the conservative kind, would never allow such immorality to taint them in any fashion. But wait. What’s that, Mike? The RNC offered its employees insurance coverage for elective abortions? Luckily for us real Americans, Chairman Steele, now that he knows about it, has promised that this option will no longer exist under his administration, according to the LA Times. I don’t know about you, but I feel reassured. And if you guessed that Steele and his cronies are proponents of tort “reform,” you’d be right.
New York State Judges Get Increase, But Not In Salary
The NY Daily News reported yesterday that New York State judges, long overdue for a salary increase, had at least gotten some money for a change. But it was not the highly anticipated salary increase. Instead, Court of Appeals Chief Judge Jonathan Lippman has simply doubled their $5000 “supplemental allowance.”
NY Daily News reporter Bill Hutchinson found that this allowance can be used for “such expenses as judicial license plates, uncovered medical bills, robe dry cleaning and marriage counseling.” (If there is a common thread here, I hope someone will alert me to it.)
Unfortunately, this news was so unnewsworthy that it was virtually ignored when the Chief Judge first announced it in an October 14th web cast, reports Hutchinson. And it should not be surprising that this story did not become “viral,” as we say on the internet. The real story, which remains simmering on the collective back burner of the law-related news machine, is that our judges have not had a raise in pay in for 11 years. They still make $136,700 per year. That is less than the police officers of numerous state counties make, particularly when overtime is factored in. That is less than most of the attorneys who appear before them make. That is significantly less than my plumber and electrician make. And while I’m happy for my friends on the police forces, and for the guys who keep things working at my house, I am outraged that the professionals who are entrusted with guiding our justice system have had their salaries frozen for so long. Clearly, judges have not even received the relatively modest cost-of-living increases that other employees of the state have, and, if nothing else, this sends out a dangerous message about the priorities of our state politicians.
Could this be the result of bad press? I know there are some judges on the bench who are arguably unworthy of their robes. But most are devoted to what they do, and would not be continuing to report for work every day at this substandard salary if they were not so invested in it. And there are several shining stars who could justifiably bolt the bench for a high-paying job in private practice, who thus far have resisted doing so. But this can’t go on forever. Our luck is about to run out. It is high time to pay our judges a fair wage.