Employment Law.

Practice point:  When an employee is acting within the scope of employment, the employer is liable for the employee's negligence under a theory of respondeat superior.

Students should note that plaintiff may not proceed with a cause of action sounding in negligent hiring and retention.

Case: Neiger v. City of New York, NY Slip Op 02934 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: To establish a relationship between an illness and a toxin, plaintiff must establish (1) the level of exposure; (2) that the toxin could cause the illness; and (3) the likelihood that this toxin caused the injury.

Students should note that the distributor of a defective product has an implied right of indemnification as against the manufacturer.

Case:  Martins v. Little 40 Worth Assoc., Inc., NY Slip Op 02866 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Employment Law.

Practice point:  Military Law § 243(7) preserves the rights of potential employees on civil service eligible lists while they are in military service.

Students should note that the statute does not extend the time to satisfy the minimum educational requirements for eligibility.

Case: Matter of Woods v. New York City Dept. of Citywide Admin. Servs., NY Slip Op 02863 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Torts.

Practice point: A motorist always has a duty to operate the vehicle with reasonable care, which encompasses the duty to see what is there to be seen.

Students should note that the duty is necessarily owed to everyone else on the roads.

Case: Ohlhausen v. City of New York, NY Slip Op 02729 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Motion practice.

Practice point: Leave to file a late claim will not be granted with respect to a false imprisonment claim if it accrued more than one year prior to the motion, pursuant to CPLR 215[3], and  Court of Claims Act § 10[6].

Students should note that the fact that claimant's medical records may be at a State facility does not mean that the State had an opportunity to investigate the circumstances giving rise to the claim.

Case: Lerner v. State of New York, NY Slip Op 02723 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Property.

Practice point: A restrictive covenant will be strictly construed against the party seeking its enforcement, and it will not be interpreted beyond its clear meaning.

Students should note that where the covenant's language admits two interpretations, the one that limits the restriction will be adopted.

Case: Kemp v. Village of Scarsdale, NY Slip Op 02518 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

School Law.

Practice point: Schools have a duty to supervise their pupils, and will be liable for foreseeable injuries proximately related to inadequate supervision.

Students should note that liability cannot sound in negligent supervision if plaintiff was a voluntary participant in the fight.

Case: Keaveny v. Mahopac Cent. School Dist., NY Slip Op 02517 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Property.

Motion practice.

Practice point: The equitable doctrine of subrogation can be invoked when, to protect his own rights or property, a party is compelled to pay the debt of a third person.

Students should note that the doctrine cannot be invoked when the payments were voluntary.

Case: Broadway Houston Mack Dev., LLC v. Kohl, NY Slip Op 02500 (2d Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Torts.

Practice point: A property owner is not liable for damages resulting from a trivial defect over which a pedestrian stumbles or trips.

Students should note that, in determining whether a defect is trivial as a matter of law, the court will consider the width, depth, elevation, irregularity and appearance, along with the time, place and circumstances of the injury.

Case: Aguayo v. New York City Hous. Auth., NY Slip Op 02494 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The law of the case does not apply to discretionary rulings regarding case management.

Students should note that when defendant has produced some documents and is willing to continue production, the sanction of striking an answer is inappropriate.

Case: Allstate Ins. Co. v. Buziashvili, NU Slip Op 02479 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Contracts.

Practice point: Absent a contract, a claim cannot sound in breach of the implied covenant of good faith and fair dealing.

Students should note that an implied contract requires specific and material promises in a school's publications.

Case: Keefe v. New York Law School, NY Slip Op 02477 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.