The storm-in-progress rule.

Practice point:  Under the rule, neither a landlord nor a snow removal contractor will be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. Here, the defendant established its prima facie entitlement to judgment as a matter of law by producing evidence that the accident occurred while a snow storm either was in progress or had just stopped.

Student note: Contrary to the plaintiff's contention, the speculation of the defendant's former employee, who had been employed as a porter for the defendant, that when round salt mixes with frozen rain "it's a little bit slippery," did not raise a triable issue of fact as to whether the defendant's snow removal efforts created or exacerbated a dangerous condition.

Case: Smiloqitz v. GCA Serv.Grp., Inc., NY Slip Op 09044 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Proper service.

Damages for wrongful death.

Practice point: In an action to recover damages for wrongful death, the measure of damages includes fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought, pursuant to EPTL 5-4.3[a].

Student note:  The essence of the cause of action is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death, and so loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered.

Case: Johnson v. Richmond Univ. Med. Ctr., NY Slip Op 09033 (2d Dept. 2012).

Here is the decision.

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

A health club's liability, and the Good Samaritan law.

Practice point: General Business Law § 627-a (1) requires health clubs to have an automated external defibrillator device (AED) on site, and at least one individual who holds a valid certification of completion of a course in operation of AEDs and in CPR.

Student note: The club was not be vicariously liable for breaching a common-law duty of care that its employees assumed by coming to plaintiff's aid as "Good Samaritans." Since the employees were providing emergency medical treatment to plaintiff, they could only have been liable for gross negligence, pursuant to Public Health Law § 3000-a [1].

Case: Chappill v. Bally Total Fitness Corp., NY Slip Op 09162 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Damages for wrongful death.

Breach of contract.

Practice point: Dismissal of the breach of contract counterclaims was required, inasmuch as the parties agreed that there would be no binding agreement until their execution of a written contract, but no such contract was ever executed.

Student note: The freedom to contract includes the freedom to avoid oral agreements, a  freedom that is especially important when business entrepreneurs and corporations engage in substantial and complex dealings. New York courts will allow sophisticated parties operating in the business world to decide when and how they wish to enter into legally enforceable contracts.

Case: StarVest Partners II, L.P. v. Emportal, Inc., NY Slip Op 09145 (1st Dept. 2012).

Here is the decision.

Monday’s issue: A health club’s liability, and the Good Samaritan law.

Discovery.

Practice point: There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by a party, pursuant to CPLR 3101[a][1]. The words “material and necessary" will be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay.

Student note: The test to be employed by the courts in weighing whether material is discoverable is one of usefulness and reason.

Case: D’Ambrosio v. Racanelli, NY Slip Op 09022 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Breach of contract.

Premption.

Practice point: The Supremacy Clause grants Congress the power to preempt state law. Within Constitutional limits, then, Congress may preempt state authority by so stating in express terms.

Student note: In the absence of explicit statutory language, preemption can be implied under field preemption where a review of federal legislation indicates that Congress intended federal law to fully occupy that field, or pursuant to conflict preemption where a state law is in conflict with federal law so that it would be impossible for a party to comply with both.

Case: Biscone v. JetBlue Airways Corp., NY Slip Op 09019 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Discovery.

Court holiday.

The courts are closed to mark New Year's Day.

Thank you for your support during the year just past, and best wishes for a happy and productive new year.

Tomorrow's issue: Preemption.

Promissory notes and summary judgment in lieu of a complaint.

Practice point: To establish prima facie entitlement to summary judgment in lieu of a complaint, a plaintiff must show that the defendant executed a  promissory note containing an unequivocal and unconditional obligation to repay, and defendant's failure to pay in accordance with the note's terms. Once the plaintiff submits evidence establishing these elements, the burden shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense.

Student note: .Whether a note precludes a fraud in the inducement defense hinges upon the language used by the parties. The key is whether the obligor's reliance on a proffered misrepresentation is reasonable in light of the language used in the note.

Case: Zyskind v. FaceCake Mktg. Tech., Inc., NY Slip Op 08781 (1st Dept. 2012).

Here is the decision.

Wednesday’s issue: Preemption.

Liability of joint tortfeasors.

Practice point: CPLR 1601(1) provides that a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of a plaintiff's non-economic loss but is severally liable for its proportionate share.

Student note: Under the statute, the trier of fact must consider the relative culpable conduct of a nonparty in apportioning culpability, unless the plaintiff proves that, with due diligence, he was unable to obtain jurisdiction over the nonparty.

Case: Belmer v. HHM Assoc., Inc., 08779 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Promissory notes and summary judgment in lieu of a complaint.

Emotional distress damages in a medical malpractice action.

Practice point: The emotional distress damages purportedly suffered by the plaintiff as a result of a blood transfusion, which allegedly became necessary because of the defendants' malpractice, are compensable in this action to recover damages for medical malpractice. All that is needed to recover for emotional injury is breach of defendant’s duty to plaintiff that results directly in emotional harm, and evidence sufficient to guarantee the genuineness of the claim.

Student note: Here, the court held that, inasmuch as the plaintiff has alleged from the outset that receiving a transfusion would violate her religious beliefs as a Jehovah's Witness, the record contained a sufficient guarantee that her claim of having suffered emotional distress as a result of the transfusion is genuine.

Case: DiGeronimo v. Fuchs, NY Slip Op 08685 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Liability of joint tortfeasors.

Hospital's liability for acts of a private attending physician.

Practice point: In general, a hospital cannot be held vicariously liable for the negligence of a private attending physician.

Student note: A hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice.

Case: Corletta v. Fischer, NY Slip Op 08682 (2d Dept.2012).

Here is the decision.

Tomorrow’s issue: Emotional distress damages in a medical malpractice action.