Defendant Denied Summary Judgment When Its Own Submissions Create a Question of Fact
In Carroll v. Willow Bend Farm, LLC, et al, (4th Dept., February 7, 2020), plaintiff alleged to have been injured following an accident which occurred while she was a passenger on a motorcycle operated by defendant Jack Moses Baker. The accident occurred at the intersection of Darby’s Corners Road and Italy Hill Road. Mr. Baker was driving the motorcycle westbound on Italy Hill Road through the intersection when a dump truck owned by defendant Willow Bend Farm, LLC and operated by defendant Kenneth R. Kuperus (hereinafter collectively “Willow Bend defendants”), traveling northbound on Darby’s Corners, entered the intersection against a stop sign and struck the motorcycle. Plaintiff brought an action against both Baker and the Willow Bend defendants, and Willow Bend asserted a cross-claim against Baker for indemnification and contribution. Defendant Baker passed away during the course of litigation, and his Estate was substituted in as a defendant.
Following discovery, the Baker Estate moved for summary judgment seeking dismissal of the plaintiff’s complaint. In support the motion, the Estate submitted the deposition transcript of Mr. Baker, which established that he had lawfully entered the intersection. Mr. Baker and the plaintiff also both testified that before the collision, Mr. Baker applied the brakes of the motorcycle in an attempt to avoid the accident, although he did not use his horn or attempt to steer around the dump truck. The Supreme Court, Steuben County granted the Estate’s motion and dismissed the plaintiff’s complaint and the cross-claims asserted by the Willow Bend defendants.
The Willow Bend defendants appealed to the Fourth Department seeking to reinstate the cross-claim against the Baker Estate. The Appellate Division reversed the decision on the trial court based on the testimony of Mr. Baker that he did not use his horn or attempt to swerve around the dump truck. The Court held that such testimony, as submitted by the Baker Estate itself, raised a triable issue of fact as to whether he exercised reasonable care to avoid the accident under the circumstances existing at the time of the collision.
Summary Judgment Affirmed in Favor of Defendant in a Trip-and-Fall Case
In Glosek v. Bella Pizza, (4th Dept., February 7, 2020), plaintiff alleged to have sustained personal injuries after she allegedly tripped and fell on a rug while walking through the defendant’s restaurant. The defendant moved for summary judgment on the ground that the placement of the rug did not constitute a dangerous and/or defective condition. The defendant’s motion was granted by the Supreme Court, and the plaintiff appealed.
Although the Fourth Department recognized that the issue of whether a certain condition qualifies as a dangerous or defective condition is usually a question of fact, the Court held that in this case, the defendant satisfied its burden by establishing that the placement of the rug in the restaurant did not constitute a dangerous condition. Plaintiff, in opposition, failed to raise a question of fact, and the dismissal of the plaintiff’s complaint was affirmed.
Appellate Division Addresses Summary Judgment Motion on Issue of Serious Injury Threshold, Motion for Leave to Renew, and Additur Following Trial
The Appellate Division, Fourth Department considered three issues in the matter of Maurer v. Colton, et al (4th Dept.; February 7, 2020), a lawsuit where plaintiff alleged to have sustained injuries following an accident which occurred when her vehicle was rear-ended by a vehicle driven by defendant Kendall Colton and owned by defendants Sherry Colton and Thomas Colton. As a result of the accident, plaintiff alleged to have sustained injuries to her knee, neck and back under the significant limitation of use, permanent consequential limitation of use, and 90/180 categories of serious injury threshold.
The defendants stipulated that they were negligent in causing the accident, and the plaintiff moved for partial summary judgment on the issue of whether plaintiff sustained a “serious injury” pursuant to Insurance Law §5102(d). In support of her motion, plaintiff submitted the requisite objective, quantitative medical evidence necessary to establish diminished range of motion in her neck and back. Defendants, in opposition, submitted a report from their medical expert. The defendants’ expert, however, confirmed the limitations of plaintiff’s cervical and lumbar spine ranges of motion, and further opined that plaintiff had a partial disability with respect to her neck and back. The trial court granted the plaintiff’s motion with respect to all three categories of serious injury.
Following the Court’s decision, defendants sought leave to renew their opposition to plaintiff’s original motion for partial summary judgment, seeking to submit a second report form their medical expert. This motion was denied, and the matter proceeded to a jury trial.
Following a damages trial, the jury awarded plaintiff damages as follows:
- $125,000 for future medical expenses;
- $108,695 for past pain and suffering; and
- $266,305 for future pain and suffering to cover a period of 20.3 years.
Plaintiff thereafter moved to set aside the verdict and increase each of the awards. The trial court granted plaintiff’s motion and ordered a new trial unless defendants agreed to increase the jury awards as follows:
- Increase future medical expenses award from $125,000 to $130,000; and
- Increase future pain and suffering award from $266,305 to $480,000.
Following the trial, the defendants submitted three appeals to the Appellate Division, Fourth Department. First, defendants appealed the decision of the trial court in granting of plaintiff’s motion for partial summary judgment on the issue of serious injury. Second, defendants appealed the denial of their motion to renew their opposition to plaintiff’s motion for partial summary judgment. Third, defendants appealed the decision of the trial court to set aside the jury verdict and order for a new trial unless defendants agreed to increase the jury’s awards for future medical expenses and future pain and suffering.
Plaintiff’s motion for partial summary judgment. With respect to the first issue on appeal, defendants first argued that plaintiff failed to meet her burden for an order of summary judgment on the grounds that plaintiff sustained a “serious injury” to her knee. The Appellate Division agreed with the defendants on the grounds that plaintiff failed to submit a quantitative determination of any limited range of motion of her knee. Plaintiff and her medical providers furthermore failed to submit any objective medical evidence that her knee injury affected her usual and customary daily activities for 90 days within the first 180 days following the occurrence of the accident. Plaintiff’s allegations that she sustained a “serious injury” to her knee were therefore dismissed.
The Appellate Division affirmed, however, the trial court’s determination that plaintiff sustained serious injuries to her neck and back under the permanent consequential limitation of use and significant limitation of use categories. With respect to those body parts, the Court found that plaintiff submitted the requisite objective, quantitative evidence as to diminished range of motion in her neck and back and that defendants’ submission in opposition did not raise a question of fact.
Defendants’ motion for leave to renew. The Appellate Division also affirmed the decision of the trial court in denying defendants’ motion to renew its opposition to plaintiff’s motion for summary judgment. The basis of defendants’ motion for leave was the request to submit a second report from their medical expert. Defendants failed, however, to establish that the second medical report could have not have been submitted with defendants’ original opposition papers. Defendants’ appeal on this issue was therefore denied.
Defendants’ appeal as to order setting aside the verdict and increasing awards. Finally, the Appellate Division held that the trial court properly granted the plaintiff’s pretrial motion in increasing the awards for future medical expenses and future pain and suffering. As to the award for future medical expenses, the Court held that the award of $125,000 could not be reconciled with a reasonable view of the evidence. The Court further concluded that the jury’s award for future pain and suffering, when compared to similar cases involving comparable injuries, deviated materially from “reasonable compensation.”
Prepared by Katie L. Renda