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 NOTE FROM THE EDITOR:
For the past few years, we have been reporting on the three failed attempts by the New York Legislature to pass the Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality.
To give some context on the state of law, we were happy to contribute to the Harmonie Group's 50-State Wrongful Death Compendium. This compendium provides a primer for each state that answers the following questions: what is the state's statutory language, who can recover and what can be recovered, and what is the state's statute of limitations for a wrongful death action.
Court of Appeals Issues Two Important Tort Decisions
While somewhat outside the strict products liability arena, there were two recent New York State Court of Appeals decisions in the past month impacting tort litigation, one involving a change in the state’s law regarding injuries caused by domestic animals (dog-bite cases), and another clarifying the scope of the “primary assumption of risk” doctrine.
In Flanders v. Goodfellow, the Court of Appeals overruled prior precedent on the “vicious propensities” strict liability standard and reverted to a more traditional negligence standard with a two-pronged approach for assessing liability for injuries caused by domestic animals. First, if an owner knew or should have known of the animal’s vicious propensities, the plaintiff may pursue a strict liability claim. In addition, or in the alternative, the plaintiff may assert a negligence claim, seeking to prove that the owner failed to exercise reasonable care under the circumstances regardless of whether or not their dog acted unreasonably in the past.
Further detailed analysis on this case from our Premises Liability team can be found here.
In Katleski v. Cazenovia Golf Club, Inc., the Court of Appeals sought to clarify the scope of two important limitations on the “primary assumption of risk” doctrine: its inapplicability to unreasonably enhanced risks and its confinement to cases involving participation in athletics and recreation. Two separate plaintiffs were injured in separate and very different accidents related to the sport of golf, one being struck by an errant golf ball while competing in a golf tournament, and the other struck by a car while riding in a golf cart in the parking lot of a golf course before she began to play the course.
The Court of Appeals found that the primary assumption of risk doctrine precludes for first negligence claim because the risk of being struck by a mishit ball while golfing is inherent in the game and there is no evidence that the design of the course unreasonably enhanced that risk. The second claim however, was reinstated because the primary assumption of risk doctrine has no application to a person who was not participating in a protected athletic or recreational activity at the time of their injury, and a golfer does not assume the risk of being hit by a car in the parking lot.
Not addressed by the court was whether the errant golfer was subject to liability for failure to warn by not yelling "fore!"
-VCP
V. Christopher Potenza ■ Member
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300 ■ Buffalo, NY 14202
tel (716) 849-8900 ■ cell (716) 523-8941 ■ fax (716) 855-0874
Email: [email protected]
HF Website: http://www.hurwitzfine.com
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Hurwitz Fine's Product Liability and Asbestos Team Continues to Grow
Jason A. Goodman has joined Hurwitz Fine as a Member of these practice areas. Throughout his over 15 years of defending toxic tort claims, Jason has represented a wide range of clients, including manufacturers of boilers, pumps, automotive products, construction materials, cosmetic talc, and premises exposures. Notably, he presented the defense position on General and Specific Causation in Asbestos Actions at the 2017 Upstate New York Asbestos Litigation Summit.
Additionally, Jason handles complex toxic tort, motor vehicle accident and medical transportation matters.
To reach out to Jason directly, please contact him here.
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We're Growing: Join Our Product Liability & Toxic Tort Team!
Hurwitz Fine P.C. is expanding our nationally recognized Product Liability and Asbestos/Toxic Tort practice and looking for attorneys at all levels to join our team at our Buffalo headquarters. This is an exciting opportunity to be part of a well-established, collaborative firm that values innovation, mentorship, and client service.
If you are interested, please feel reach to reach out to Chris Potenza in confidence.
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Hurwitz Fine's Long Island Office Expands
We are excited to announce the continued growth of our Long Island office, marking a significant milestone in our firm’s expansion.
Due to increasing demand and our commitment to providing exceptional legal services, we have relocated to a larger, more modern office space to accommodate our growing team of attorneys and staff. This move reflects our dedication to serving clients throughout Long Island and the greater New York area. As we settle into our new space, we look forward to strengthening our presence in the region and continuing to provide high-quality legal representation.
For more information or to connect with our Long Island team, visit our website here.
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Hurwitz Fine Opens Rochester Office
We’ve officially opened a brick & mortar Rochester office. We are fortunate to announce our two new attorneys, Elizabeth K. Ognenovski and Bradon S. Carlson. While we have had a Rochester presence for the past five years, we are excited about our expansion to further serve our clients.
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Elizabeth K. Ognenovski joins Hurwitz Fine as Litigation Special Counsel. She focuses on retail & hospitality liability, premises liability, construction accidents/New York Labor Law, products liability, and property damage claims. With extensive experience in civil defense litigation, including appellate work, she has successfully represented corporations, small businesses, and individuals in both state and federal courts. Elizabeth is also highly skilled in risk management strategies, accident investigations, and regularly provides in-house legal training to retailers.
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Bradon S. Carlson joins Hurwitz Fine as a Litigation Associate. Bradon focuses on premises liability, retail liability, product liability, automobile liability, and New York State Labor Law. With experience defending complex litigation matters, Bradon has a background in civil defense and is also dedicated to pro bono work, assisting tenants facing eviction and providing legal counsel on various matters.
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The Harmonie Group's Wrongful Death Compendium
In collaboration with the Harmonie Group, we are proud to present a 50-State Wrongful Death Compendium. This compendium provides a primer for each state that answers the following questions: what is the state's statutory language, who can recover and what can be recovered, and what is the state's statute of limitations for a wrongful death action.
Click here to view this resource.
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Don’t forget to subscribe to our other publications:
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at [email protected] to subscribe.
Labor Law Pointers: Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. Contact Dave Adams at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at [email protected] to subscribe.
Premises Pointers: This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.
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Hurwitz Fine P.C.
Buffalo
The Liberty Building
424 Main Street, Suite 1300, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
Long Island
25 Melville Park Road, Suite 260, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
Rochester
100 Office Park Way, Pittsford, NY 14534
Phone: 585-454-6850, Fax: 585-270-4572
Albany
518-641-0398
Additional Offices
Albion | Amherst | Hartford, CT | Englewood, NJ | Niagara Falls
www.hurwitzfine.com
© 2025, Hurwitz Fine P.C. All Rights Reserved
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.
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