 NOTE FROM THE EDITOR:
It’s beginning to look a lot like 2019, everywhere you go… As I am sure you have heard, the CDC drastically reduced masking guidelines for vaccinated adults. As a result, our building just eliminated its masking requirement. This is both liberating and unsettling at the same time. While it is certainly nice to see so many smiling faces, there is a still a large amount of the population that is either unvaccinated or immuno-compromised, so I hope we can still be respectful of the health and safety of others. In another sign of a return to normalcy, my firm just had its first trial since the start of the pandemic, a federal court bench trial on an insurance coverage claim. While there was no jury, it was in-person. As I have a few jury trials scheduled for August and September, I am anxious to know if those dates are legit as I have some 20 lbs to lose if I am going to fit into my trial suits. Lawyers League softball also returned after a year hiatus, and the Hurwitz & Fine team dominated in an opening day win (this is certainly not normal).
Speaking of insurance coverage, there is dangerous bad-faith legislation pending in New York which would create a statutory cause of action for bad-faith when common law remedies and statutory restrictions already exist. This is decidedly bad news for carriers as it will undoubtedly increase the cost of doing business in New York and severely curtail their ability to contest claims. Our Coverage Team details the pitfalls of this legislation in this excellent article “Bad Faith Bill Would Tip The Scales Against Insurers” published on Law360.com. Please feel free to contact Lee Siegel with any questions or comments on this important issue.
If that is not enough, there is more perilous insurance coverage legislation pending as a bill that would ban the use of lead paint exclusions in insurance policies for rental property owners is moving in the NYS Assembly. While similar attempts at this legislation have stalled in the past, we are keeping a close eye on this situation which could potentially open the flood gates for new lead paint claims that were otherwise not pursued due to lack of coverage.
Now for the good news. Our firm continues to grow as I am very pleased to announce that Kara Eyre has joined our team. Kara has ten years experience handling products, medical malpractice, and general liability defense claims. She is a proud graduate of the University of Pennsylvania and Benjamin Cardozo Law School. Welcome to the team, Kara!
For those also involved in auto and trucking claims, attorney Brian M. Webb has prepared this handy and downloadable “Tune-up on Automobile Claims in New York,” which highlights several of the key issues to keep in mind when analyzing motor vehicle claims in New York State.
I am also very excited to be participating in the Harmonie Group’s Spring Conference, where I will be moderating a panel discussion on a variety of topics, including post-Covid juries, excessive use-of-force claims, and "Difficult Employment Twists and Vaccine Requirements" presented by my esteemed partner, Joseph S. Brown.
Lastly, with New York having legalized recreational-use marijuana with the passage of the Marijuana Regulation & Taxation Act (MRTA), our Cannabis Law Practice Group is off and running, and will be addressing the implications on businesses, municipalities, employment, insurance and liability, in a bar association presentation “What Lawyers Should Know About the Marijuana Regulation and Taxation Act (MRTA).” Please contact Amber Storr for more information or to set up specific training for your group.
We have an interesting array of cases to discuss this month. The First Department, in a construction accident case, addresses the impact of a defect design claim against a boom lift manufacturer on the Labor Law 240 claims against the owners/contractors. There is a refresher from the Fourth Department on strict products liability for design defect when a product is sold without an optional safety feature. The First Department finds that the conclusory expert affidavit of the defendant manufacturer of an animal tranquilizer gun is insufficient for summary judgment. Lastly, a win for the defense in an asbestos case as the First Department finds that a co-worker statement to decedent’s son about a product used by the decedent in the 1970's is impermissible hearsay.
And now for this month’s dad joke (as told to me by my son):
What is so fragile that when you say it, it breaks?
Silence.
(For the record, I did not know that “silence” was in my kids’ vocabulary).
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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.
Employment & Business Litigation Pointers: Employment & Business Litigation Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Contact Joe Brown at [email protected] to subscribe.
Labor Law Pointers: Hurwitz & Fine, P.C.’s 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 Chris Potenza 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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Design Defect
By: V. Christopher Potenza
[email protected]
5/07/2021 Mariani v. Guardian Fence of WNY, Inc.
Appellate Division, Fourth Department
Back-up! Appellate Division finds issue of fact on strict products liability for design defect when purchaser of truck without back-up alarm testified he was not aware of this optional safety feature.
Plaintiff commenced this action to recover damages for injuries when a truck owned by his employer backed over him, and asserted a strict products liability claim against the auto dealership on the basis that the truck did not have a back-up alarm. Where, as here, a plaintiff buyer claims that a product without an optional safety feature is defectively designed because the feature was not included as a standard feature, the product is not defective if (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product. Here, testimony of plaintiff's employer, that at the time he bought the truck that was involved in the accident and he “didn't know” that a backup alarm was available as an option, created an issue of fact as to whether the buyer was actually aware of its availability. Further, defendants also moved for summary judgment on the ground that the truck met all federal, state, and industry safety standards. The Appellate Division concluded that defendants failed to meet their initial burden of establishing entitlement to judgment as a matter of law on that ground since they failed to submit evidence demonstrating that the truck was reasonably safe.
4/21/2021 Morales v. City of New York.
Appellate Division, Fourth Department
Mere conclusory expert affidavit tranquilizes gun manufacturers attempt at summary judgment dismissal of design defect claim.
Plaintiff, a detective with the NYPD, severely injured his eye while attempting to change the carbon dioxide cartridge of an animal tranquilizer gun. Plaintiff asserted claims against the municipal defendants, as well as negligence and strict products liability predicated upon defective design and failure to provide adequate warnings against NASCO, the distributor of the gun. A defendant moving for summary judgment dismissing a design defect claim must establish, prima facie, that the subject product was reasonably safe for its intended use or that the plaintiff's actions constituted the sole proximate cause of his or her injuries. Here, NASCO failed to meet that initial burden. Relying primarily on the fact that no other member of the NYPD had reported any problems using the particular gun at issue, NASCO's expert, in their affidavit, opined in mere conclusory fashion that the tranquilizer gun was "appropriately designed." The affidavit did not, for example, contain any explanation of the gun's design, or any discussion of industry standards or costs. Nor did it state whether NASCO had received complaints about any of the other tranquilizer guns it had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the gun was reasonably safe for its intended use. Further, there were triable issues of fact as to whether plaintiff followed instructions.
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Manufacturing Defects
By: Brian F. Mark
[email protected]
In-person trials continue to proceed in the NYC Metro area. The courts have been taking a cautious approach, limiting the number of trials and requiring strict compliance with safety procedures. Since last edition, I have heard of a few more in-person appearances, but those still appear to be a rare occurrence, not the norm. As the courts and the attorneys have become comfortable with remote appearances, routine matters will continue to be handled virtually.
In Fritz v. JLG Industries, Inc., a construction accident fall from height case, both Labor Law and products liability claims were asserted. The First Department affirmed the granting of summary judgment in plaintiff’s favor on the Labor Law § 240(1) claim as well as the denial of the defendant’s motion to dismiss the strict products liability claim based on a design defect. The plaintiff’s strict products liability claim based on a manufacturing defect was dismissed as abandoned.
4/29/21 Fritz v. JLG Industries, Inc.
Appellate Division, First Department
Product defect claims against boom lift manufacturer not a superseding cause of the construction accident relieving the defendants of liability under § 240(1).
The plaintiff was injured while operating a boom lift manufactured when it malfunctioned, causing him and a co-worker to be propelled from the passenger compartment. As a result of the accident, Labor Law claims were asserted against the construction site owners/ contractors, and strict products liability claims against the boom lift manufacturer JGL Industries (“JGL”).
The Appellate Division affirmed the trial court’s granting of summary judgment to the plaintiff on his Labor Law § 240(1) claim finding that any defect in the design of the boom lift that collapsed while plaintiffs were in its platform was not a superseding cause of the accident relieving the owner/contractor defendants of liability under § 240(1).
The strict products liability claim based on a manufacturing defect was dismissed as abandoned as no party opposed the JGL motion to dismiss that claim.
The Appellate Division affirmed the trial court’s denial of JLG's motion for summary judgment dismissing the strict products liability claim based on a design defect, relying on the expert opinion that the boom lift failed because of a lack of visual inspections and maintenance, which could not have been performed without completely disassembling the lift due to its defective design.
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Toxic Torts, Asbestos, and Lead Paint
By: Nicholas J. Heintzman
[email protected]
Hope all is well, everyone! The warm weather is here, and I am thrilled. I have started running at Buffalo’s Outer Harbor. It is gorgeous down there—right on the water with a perfect breeze and a view of my native Canada. It is a great way to unwind after the workday. I think we have a fantastic summer ahead!
Here’s my fun Canadian fact for the month: Gordon Lightfoot (a legendary Canadian folk singer with many classics – most notably “Sundown” and “The Wreck of the Edmund Fitzgerald”) and Drake (does he need an introduction?) are neighbors! The two Canadian musicians have homes in Bridle Path, an affluent suburb in Toronto. The 82-year-old Lightfoot is a huge fan of Drake’s music, and he said he was looking forward to having Drake over for a visit. Here’s hoping Drake reciprocated!
Only one asbestos case this month: a product manufacturer earned a dismissal after plaintiff offered nothing but hearsay evidence to establish that the defendant’s product caused plaintiffs’ asbestos exposure.
4/20/21 Salzano v. Kaiser Gypsum Company, Inc., et al.
First Department, New York
Statement by decedent’s co-worker to decedent’s son about product exposure in 1970’s is hearsay insufficient to establish product identification of asbestos exposure.
The First Department held that plaintiffs failed to identify Kaiser’s products as the source of decedent’s alleged exposure to asbestos. Plaintiffs’ sole evidence of the nexus between Kaiser’s products and decedent’s alleged asbestos exposure was a statement made sometime between 1972-74 by the decedent’s co-worker to the decedent’s son in which the co-worker told the son that the decedent was working with a Kaiser product. The Court held that this statement was inadmissible hearsay that did not qualify as a present sense impression (an exception to the prohibition against hearsay) because nothing in the statement indicated that it described an event or condition that the coworker perceived, rather it simply reflected the coworker's understanding of a fact (brand of joint compound) without any indication of the source of his knowledge. Absent any evidence that Kaiser’s products caused the decedent’s asbestos exposure, the First Department dismissed the case.
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NEWSLETTER EDITORS
V. Christopher Potenza
[email protected]
Brian F. Mark
[email protected]
ASSISTANT EDITOR
Nicholas J. Heintzman
[email protected]
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