Torts.

Practice point: A possessor of real property has a duty to maintain reasonable security measures to protect those lawfully on the premises from the foreseeable criminal acts of third parties.

Practitioners should note that foreseeability requires that the criminal conduct must be reasonably predictable based on prior occurrences of a similar kind at a sufficiently proximate location.

Case: Bryan v. Crobar, NY Slip Op 06394 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Remedies.

Motion practice.

Practice point: An action may be dismissed for a delay in its prosecution, pursuant to CPLR 3216[a].

Practitioners should note that, for such a dismissal, there are three requirements: (1) issue must have been joined, (2) one year must have elapsed following joinder, and (3) there must have been a written demand served by registered or certified mail requiring that a note of issue be served and filed within ninety days, pursuant to CPLR 3216[b].

Case: Michaels v. Sunrise Bldg. & Remodeling, Inc., NY Slip Op 06411 (2d Dept. 2009)

The opinion is here.

Monday’s issue: Torts.

The "danger invites rescue" doctrine.

Practice point: There is no cause of action in negligence against a rescuer who was rushing into danger to save someone from an imminent, life-threatening peril.

Practitioners should note that the doctrine works against a party whose culpable act has put someone in an imminent peril which invites a third person to come to the rescue.

Case: Flederbach v. Lennett, NY Slip Op 06402 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: New York does not recognize a cause of action in tort for wrongful termination.

Practitioners should note that, absent an express agreement establishing that it is for a fixed duration, the employment is presumed to be at-will and can be freely terminated by either party at any time, for any reason, or for no reason at all.

Case: Daub v. Future Tech Enter., Inc., NY Slip Op 06397 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: The “danger invites rescue” doctrine.

Vehicle and Traffic Law.

Practice point: To establish liability pursuant to § 388(1), a plaintiff must show negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury.

Practitioners should note that if intentional offensive contact is established, the actor is liable for battery, not negligence.

Case: Ciminello v. Sullivan, NY Slip Op 06396 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Labor Law.

Practice point: For purposes of § 240(1) liability, an airplane is a structure.

Practitioners should note that the City may be liable as fee owner, even though it leased the premises to the Port Authority, which in turn leased the premises to an airline.

Case: Wong v. City of New York, NY Slip Op 06395 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Vehicle and Traffic Law.

Torts.

Practice point: An arm's length borrower-lender relationship is not confidential or fiduciary in nature, and does not support a cause of action for negligent misrepresentation.

Practitioners should note that liability for negligent misrepresentation will be imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party.

Case: Dobroshi v. Bank of Am., N.A., NY Slip Op 06382 (1st Dept. 2009)

The opinion is here.

Monday’s issue: Labor Law.

Products liability.

Practice point: A manufacturer has a duty to warn against latent dangers resulting from reasonably foreseeable uses of its product.

Practitioners should note that, where a product is manufactured so as to allow its use without a safety feature, a plaintiff may recover for injuries suffered as a result of removing the safety feature.

Case: Stewart v. Honeywell Intl. Inc., NY Slip Op 06365 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Torts.

Practice point: An action to recover for personal injury or wrongful death against a doctor or hospital may be based either on simple negligence principles or on the narrower medical malpractice standard.

Practitioners should note that negligence principles apply where the alleged act may be determined by the fact-trier based on common knowledge. Where the issue involves directions given or treatment administered, consideration must be given to the professional skill and judgment of the practitioner or facility, and medical malpractice principles apply.

Case: Friedmann v. New York Hospital-Cornell Med. Ctr., NY Slip Op 06362 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Products liability.

Contracts.

Practice point: The rule of accord and satisfaction is generally accepted as a legitimate and expeditious means of settling contract disputes.

Practitioners should note that the affirmative defense requires a disputed claim that the parties resolved through a new contract discharging their obligations under the original contract.

Case: Profex, Inc. v. Town of Fishkill, NY Slip Op 06320 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

Municipalities Law.

Practice point: Under Highway Law § 139(2), a county may not be subjected to liability for injuries caused by an improperly maintained highway unless (1) it has received prior written notice of the defect, or (2) a statutory exception to the notice requirement applies.

Practitioners should note that, as a matter of law, constructive notice of a defect, except in the case of snow and ice, is an exception to the prior written notice requirement.

Case: Napolitano v. Suffolk County Dept. of Pub. Works, NY Slip Op 06319 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Contracts.