Issues of Fact Preclude a Finding of Summary Judgment In Favor of the Plaintiff on the Issue of Serious Injury
In Hines–Bell v. Criden, 145 A.D.3d 1537 (4th Dept., 2016), the plaintiff sued the defendant for injuries she allegedly sustained after the defendant rear-ended her vehicle. Plaintiff moved for summary judgment on the issue of serious injury arguing that she sustained qualifying injuries under the fracture, permanent consequential limitation of use and significant limitation of use categories as set forth in Insurance Law §5102(d). In support of her motion, plaintiff submitted medical records, an independent medical examination report and physician’s affidavit establishing that the plaintiff sustained a left wrist scaphoid fracture (requiring surgery), significant loss of range of motion in lumbar spine along with a large traumatic annular tear at L4-5 (which also required surgery) as a result of the subject accident.
The trial court granted the plaintiff’s motion. The Fourth Department reversed, holding that although plaintiff met her burden establishing entitlement to summary judgment, defendant raised a triable issue of fact with the submission of affidavits from two physicians. One of the affidavits submitted by the defendant was from a physician who also an engineer who specialized in the analysis of the response of the human body to forces resulting from events (such as automobile collisions) to determine how injuries are caused. Both of the defendant’s experts opined that the plaintiff’s wrist fracture pre-dated that accident and that the facts of the accident were inconsistent with the force needed to cause such a fracture. With respect to the plaintiff’s alleged lumbar spine injury, the defense experts concluded that the plaintiff’s low back condition was degenerative in nature and not caused by the accident. The Court therefore reversed the trial court’s decision, holding that the plaintiff was not entitled to summary judgment on the issue of serious injury.
Defendant Entitled to Summary Judgment Where His Negligence Merely Furnished the Occasion for an Unrelated Act to Cause Injuries Not Ordinarily Anticipated
In Kilmer v. Mastropietro, 145 A.D.3d 1559 (4th Dept., 2016), the Fourth Department affirmed the ruling of the Cayuga County Supreme Court in granting defendant’s summary judgment motion on the issue of negligence. This lawsuit was commenced by plaintiff for injuries allegedly sustained when he was struck by the defendant’s rolling car. According to the plaintiff, he ran behind the defendant’s rolling car in an attempt to stop it. While doing so, the plaintiff slipped and fell and was then struck by the car. Plaintiff alleged that the defendant’s negligence in creating the opportunity for the vehicle to begin rolling down an incline was a proximate cause of his injuries.
The defendant moved for summary judgment. The trial court granted his motion and the Appellate Division affirmed. It held that any alleged negligence on behalf of the defendant merely furnished the occasion for an unrelated act which would not normally be anticipated to cause injuries to the plaintiff.
Plaintiff’s Lawsuit for Injuries Sustained When She Was Ejected from Golf Cart Is Barred by the Doctrine of Primary Assumption of the Risk
In Kirby v. Drumlins, Inc., 145 A.D.3d 1561 (4th Dept., 2016), the plaintiff alleged to have sustained injuries after being ejected from her golf cart while playing golf at the defendant’s golf course. According to the plaintiff, she was driving the golf cart down an excessively steep and winding golf cart path that was littered with wet leaves and other natural debris when she lost control of her cart and was injured.
The defendant moved for summary judgment, arguing any recovery sought by the plaintiff was barred by the doctrine of primary presumption of risk. In support of this motion, the defendant submitted evidence that the plaintiff was an experienced golfer who had previously played at that golf course and had indeed driven a golf cart down the path where her accident occurred several times in the past. Plaintiff was also aware that it had rained the night before and that the golf course was still wet that morning of the accident. Furthermore, she had driven her golf cart on the subject cart path just moments before her accident and at that time had observed the leaves and other debris on the path.
In opposition to the motion, the plaintiff submitted an affidavit from an expert in golf course design alleging that the defendant’s golf course failed to comply with industry standards.
The Onondaga County Supreme Court held that the defendant was entitled to an order granting summary judgment. The Fourth Department affirmed, holding that the plaintiff was aware of the risk posed by the cart path and assumed the risk by driving her golf cart on said path.
The Court further held that the trial court did not err in refusing to consider the conclusory affidavit of the plaintiff’s expert where the affidavit set forth none of the industry standards to which it alluded and provided no specific measurements taken at the scene of the plaintiff’s accident to which such industry standards might have compared. As such, there were no issues of fact which would preclude defendant’s entitlement to an order for summary judgment.
Plaintiff’s Injury Did Not Fall within the Scope of Labor Law §240(1) As the Height Differential between the Plaintiff and the Pipe That Fell on Him Was De Minimis
In Kuhn v. Giovanniello, 145 A.D.3d 1457 (4th Dept., 2016), plaintiff sought damages for injuries allegedly sustained while he was removing and replacing a sewer pipe in the basement of the defendants’ pizzeria. He was struck on the shoulder by a falling pipe that weighted approximately sixty pounds. Plaintiff was standing on the ground at the time the accident occurred. Although there was conflicting deposition testimony concerning the exact elevation of the pipe, it was undisputed that the pipe was, at most, one foot above the plaintiff’s head and was therefore always within his reach.
The defendants moved for summary judgment, arguing that the plaintiff’s accident did not fall within the ambit of Labor Law §240(1). The trial court granted the defendant’s motion. The Fourth Department affirmed the decision of the trial court, concluding that any height differential between the plaintiff and the pipe that fell on him was de minimis.As such, the plaintiff’s injury did not fall within the scope of Labor Law §240(1). A two justice dissent allows the plaintiff seek further review at the Court of Appeals. Stay tuned for further development regarding this case.
Prepared by Katie L. Renda, Esq.