Assumption of the risk.

Practice point: By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally, and flow from such participation.

Student note: A participant's consent does not run to concealed or unreasonably increased risks.

Case: Charles v. Uniondale School District Bd of Ed., NY Slip Op 00479 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Notice of claim.

Power of attorney.

Practice point: If a signature on a power of attorney is forged, any document executed by the purported attorney-in-fact pursuant to the power of attorney is void.

Student note:If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing.

Case: ABN AMRO Mtge. Group, Inc. v. Stephens, NY Slip Op 00477 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Assumption of the risk.

Labor Law.

Practice point: When the claim is based on alleged defects or dangers in the methods or materials used to perform the work, a plaintiff may recover against an owner or general contractor under § 200 only on a showing that the defendant had the authority to supervise or control the performance of the work.

Student note: General supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability.

Case: Cabrera v. Revere Condominium, NY Slip Op 00320 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Power of attorney.

Contractual indemnification.

Practice point: A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.

Student note: The party must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Case: Baillargeon v. Kings County Waterproofing Corp., NY Slip Op 00315 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Labor Law.

Falls on City property.

Practice point: Section 7-201(c) of the Administrative Code of the City of New York bars an action if there was no prior written written notice of the alleged defective condition.

Student note: The City's intake records concerning uneven boards on the boardwalk and work orders noting that there were loose or broken boards in need of repair did not raise a triable issue of fact as to whether the City was aware of the alleged defective condition which caused plaintiff to fall.

Case: Arcasascio v. City of New York, NY Slip Op 00313 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Contractual indemnification.

Duty to protect against assaults.

Practice point: The owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

Student note: While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control.

Case: Afanador v. Coney Bath, LLC, NY Slip Op 00312 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Falls on City property.

Res ipsa loquitur.

Practice point: The charge is warranted only where a plaintiff establishes that (1) the type of accident at issue ordinarily does not occur in the absence of negligence; (2) the instrumentality causing the accident was in the defendant's exclusive control; and (3) the accident was not due to any voluntary action or contribution by the plaintiff.

Student note: A fall on a moving bus is not an event that ordinarily does not occur in the absence of negligence.

Case: Abrams v. Excellent Bus Serv., Inc., NY Slip Op 00311 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Duty to protect against assaults.

Punitive damages.

Practice point: New York does not recognize an independent cause of action for punitive damages.

Student note: Questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal.

Case: Muniz v. Mount Sinai Hosp. of Queens, NY Slip Op 00192 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue:  Res ipsa loquitur.

Right-of-way.

Practice point: A plaintiff-driver is entitled to judgment as a matter of law on the issue of liability if he or she demonstrates that the sole proximate cause of an accident was the defendant driver's violation of VTL § 1141 in turning left directly into the path of the plaintiff's oncoming vehicle which was lawfully present in the intersection.

Student note: A driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection.

Case: Gause v. Martinez, NY Slip Op 00178 (2d Dept. 2012).

Here is the decision.

Monday’s issue:  Punitive damages.

The Noseworthy doctrine.

Practice point: Having presented medical evidence establishing the loss of memory and its causal relationship to defendant's fault, a plaintiff is entitled to the lesser standard of proof applicable to a party unable to present his version of the facts, pursuant to  Noseworthy v. City of New York, 298 NY 76 [1948].

Student note: In order to avail himself of the doctrine, the plaintiff must present prima facie evidence of defendant’s negligence.

Case: Bah v. Benton, NY Slip Op 00106 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:  Right-of-way.

Employment law.

Practice point: The New York State Human Rights Law does not immunize disabled employees from discipline or discharge for misconduct in the workplace.

Student note: EEOC Guideline No. 30 specifically provides that an employer may discipline an individual with a disability for violating a workplace conduct standard which is job-related and consistent with business necessity.

Case: Hazen v. Hill Betts & Nash LLP, NY Slip Op 00047 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: The Noseworthy doctrine.