County Only Entitled to Reimbursement for Money Paid in Excess of Basic Economic Loss
In County of Erie v. Volante (4th Dept. 2016), plaintiff commenced an action pursuant to General Municipal Law §207-c (6) seeking reimbursement for the salary and medical expenses it paid on behalf of a police officer who was injured when his patrol car collided with a motor vehicle owned and operated by the defendant.
In upholding the Supreme Court’s decision, the Appellate Division found that the plaintiff must be limited in its recovery to the amount it paid in excess of basic economic loss. Pursuant to General Municipal Law §207-c (6), potential recovery of payments made to the police officer injured by the alleged negligence of the defendant in her ownership and operation of an automobile is limited by Insurance Law Article 51. As such, the plaintiff can only recover those amounts that were paid in excess of the basic no-fault benefits.
Football Player Found to Assume the Risk of Injury Affording Summary Judgment to Defendant
In Butchello v. Herberger, (4th Dept. 2016), a case was handled by Mike Chmiel with the assistance of Rebecca Josefiak of our office, plaintiff commenced an action to recover damages for an eye injury that he sustained while participating in a collage football game. In his complaint, plaintiff alleged negligent and reckless conduct on the part of the college that fielded the opposing team, that team’s coach, and Michael J. Herberger, the defendant, who allegedly injured the plaintiff. The facts indicated that Herberger caused the plaintiff to lose sight in one of his eyes as a result of inadvertent gouging of the eye in the midst of blocking the plaintiff. Herberger moved for summary judgment dismissing the complaint against him on the grounds that the plaintiff assumed the risk of his injury as a matter of law. Herberger contended that plaintiff’s lawsuit is barred by the primary assumption of risk by demonstrating that the plaintiff voluntarily assumed the risk of injury by participating in the game.
The Appellate Division reversed the denial of Herberger’s motion for summary judgment finding that the plaintiff should have been aware that he could sustain this type of an eye injury due to his background, skill, and experience. The Appellate Division reiterated that, by participating in certain sports, participants assume risks which are known, apparent, or reasonably foreseeable consequences of the participation.
Defendant Wins Summary Judgment Based On Plaintiff’s Knowledge of Swimming Pool Conditions
In Brady v. Domino (4th Dept. 2016), plaintiff commenced an action seeking damages for injuries he sustained when he dove into the shallow end of an in-ground residential swimming pool owned by the defendant. In affirming the lower court’s decision, the Appellate Division held that summary judgment is appropriate in swimming pool injury cases in which plaintiff’s general knowledge of pools, observations prior to the accident, and plain common sense should have led the plaintiff to a conclusion that diving into said pool posed danger of injury.
The record established that plaintiff lived on the same street as the defendant; swam in the subject pool on multiple occasions prior to the accident; and was aware that striking the bottom of the pool is a risk when diving into the shallow end. Under these circumstances, the Appellate Division held that reckless conduct of the plaintiff was the sole proximate cause of his injuries leading to the dismissal of the plaintiff’s case.
Questions of Fact Exists with Respect to Whether the Recklessness Standard Applies and Whether the Defendants’ Actions Were Reckless.
In Rice, et al. v. City of Buffalo, et al. (4th Dept. 2016), plaintiffs commenced an action as a result of a motor vehicle accident that occurred at an intersection in Buffalo, New York. Plaintiffs were passengers in a vehicle that was proceeding through a green light when it was struck by defendant Buffalo Fire Department’s vehicle while it was responding to a call regarding a suspicious package.
Defendants moved for summary judgment dismissing the complaint, contending that the correct standard to determine potential liability was not ordinary negligence but reckless disregard for the safety of others, and that their conduct had not risen to the level of reckless disregard. Plaintiffs cross-moved for partial summary judgment on the issue of liability, contending that the ordinary negligence standard applied and that the defendants had violated that standard as a matter of law.
In support of plaintiffs’ cross-motion, plaintiff submitted a deposition transcript of defendant driver (Fitzpatrick), who testified that in the time leading up to the accident, he turned the siren off intermittently in order to communicate with the alarm office. He further testified that he arrived at the intersection just before turning the siren on. The trial court denied all motions on the issues of reckless disregard and ordinary negligence.
The Appellate Division found that the plaintiffs’ evidentiary submissions raise issues of fact whether Fitzpatrick sounded his siren “loud enough to be heard and . . . soon enough to be acted upon” thereby leading to a question of fact as whether an ordinary negligence standard applies.
Furthermore, the Appellate Division also concluded that the “speed at which the emergency vehicle proceeded into the intersection does not render Fitzpatrick’s conduct unprivileged as a matter of law, but rather presents an issue of fact whether he acted with reckless disregard for the safety of others.”
Mere Fact That Lender Did Not Pursue Legal Remedies to Enforce Debt Did Not Result in Plaintiff Being Unjustly Enriched as A Matter of Law
In Moses v. GEICO Insurance Company (4th Dept. 2016), plaintiff commenced an action alleging that the defendant wrongfully failed to honor its obligations under the automobile insurance policy when plaintiff’s vehicle was allegedly stolen, vandalized, and later recovered.
Before the vehicle was recovered, the defendant disclaimed coverage on the grounds that theft does not qualify as a loss as defined in the policy contract. Once the vandalized vehicle was recovered, the plaintiff notified the defendant. The defendant then informed the plaintiff that her claim was denied.
The Appellate Division reversed the lower court decision which granted the defendant summary judgment dismissing the complaint and found that the Supreme Court erred in granting defendant’s motion on the grounds that the plaintiff would be unjustly enriched if the defendant were to fulfill its contractual obligations. The defendant failed to establish, as a matter of law, that the loan for the automobile had been forgiven by the financing company. The mere fact that the financing company had not pursued any legal remedies against the plaintiff did not establish that the loan was not forgiven. In fact, the plaintiff testified at her deposition that the loan still appeared on her credit report and she was unsure if she would be required to pay the loan.
Under the terms of the insurance policy, the defendant promised to pay the plaintiff actual cash value less the deductible for loss caused by theft or vandalism. Plaintiff established that the defendant is contractually obligated to perform its obligations under the policy. Thus, the Appellate Division reversed and granted the plaintiff’s cross-motion for partial summary judgment on liability. It noted that with respect to the issue of damages, a damages inquest is necessary to determine whether, under the policy, the defendant must pay to the plaintiff or the lien holder.
Prepared by Katy M. Hedges