Honor Veterans.

A special thanks to Veterans, no matter where or when you served.

The courts are closed to mark Memorial Day.

Tomorrow’s issue: Regulating discovery.

Lack of informed consent.

Practice point: To establish the cause of action, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances; (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed; and (3) that the lack of informed consent is a proximate cause of the injury.

Student note: Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions.

Case: Magel v. John T. Mather Mem. Hosp., NY Slip Op 03813 (2d Dept. 2012).

Here is the decision. 

Tuesday’s issue: Regulating discovery.

Rear-end collisions.

Practice point: When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over the vehicle, and to exercise reasonable care to avoid colliding with the other vehicle.

Student note: Therefore, a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.

Case Denezzo v. Joseph, NY Slip Op 03799 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Lack of informed consent.

Liability for an independent contractor's negligence.

Practice point: A party who retains an independent contractor, as distinguished from an employee or servant, is not liable for the independent contractor's negligent acts.

Student note: The underlying rationale for the rule is that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor.

Case: Calandrino v. Town of Babylon, NY Slip Op 03795 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Rear-end collisions.

A civilian complainant's liability for false arrest.

Practice point: A civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.

Student note: However, there may be liability if the civilian affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition.

Case: Boadu v. City of New York, NY Slip Op 03581 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability for an independent contractor’s negligence.

Loss of consortium.

Practice point: The cause of action does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage.

Student note: Although New York does not itself recognize common-law marriages, a common-law marriage contracted in another State will be recognized as valid here if it is valid where contracted.

Case: Holmes v. Maimonides Medical Med. Ctr., NY Slip Op 03410 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A civilian complainant’s liability for false arrest.

An emergency responder's reckless disregard.

Practice point: The reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road in § 1104(b).

Student note: Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

Case: Fajardo v. City of New York, NY Slip Op 03402 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Loss of consortium.

A school's duty to supervise.

Practice point: Schools are under a duty to adequately supervise the students in their charge,and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Student note: Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students. Therefore, schools will not be held liable for every thoughtless or careless act by which one pupil may injure another.

Case: Benavides v. Uniondale Free School Dist., NY Slip Op 03393 (2d Dept. 2012).

Here is the decision.

 Tomorrow’s issue: An emergency responder’s reckless disregard.

Statute of frauds.

Practice point: An agreement which violates the statute of frauds may nonetheless be enforceable where there has been part performance unequivocally referable to the contract by the party seeking to enforce the agreement.

Student note: “Unequivocally referable” conduct is conduct which is inconsistent with any other explanation.

Case: Barretti v. Detore, NY Slip Op 03390 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A school’s duty to supervise.

The storm-in-progress rule.

Practice point: A municipality generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm.

Student note: If the municipality makes a prima facie showing that the accident occurred while a storm was in progress, the burden shifts to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident.

Case:  Ali v. Village of Pleasantville, NY Slip Op 03385 (2d Dept. 2012).

Here is the decision.

 Tomorrow’s issue: Statute of frauds.

Labor Law.

Practice point: The reference in 12 NYCRR 23-1.7(d) to ‘passageways’ can encompass a permanent staircase, when that staircase is the sole access to the work site.

Student note: § 241(6) does not apply to routine exterior window washing.

Case: Wowk v. Broadway 280 Park Fee, LLC, NY Slip Op 03274 (1st Dept. 2012).

Here is the decision.

 Tomorrow’s issue: The storm-in-progress rule.