Automobile

Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY)

Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article.Read More

Summary Judgment Denied For Vehicle Struck From Behind Where Proximate Cause Was An Issue (NY)

The general rule in New York for rear-end accidents with a vehicle that is stopped or stopping is that there is a rebuttable presumption of negligence on the part of the driver that hits the vehicle in front of them. Accidents involving multiple vehicles can involve competing testimony and questions of fact that can make summary judgment difficult. For example, in Houslin v. New York City Tr. Auth., plaintiff was a passenger in a vehicle which was struck by another vehicle, then collided with the rear of a bus owned by the MTA and NYC Transit Authority. The Transit defendants moved for summary judgment on the basis that the bus was struck from behind and therefore they had no liability. The Supreme Court denied the motion on the basis that fact issues existed as to the proximate cause of the accident and liability of the Transit defendants. The Appellate Division, Second Department affirmed, finding that the Supreme Court properly denied the Transit defendants’ motion, as “there can be more than one proximate cause of an accident.” The Court found that given the conflicting deposition testimony as to the cause of the accident, issues of fact remained as to whether the bus had been operated negligently, and if so, whether that negligence contributed at all to the accident. The takeaway from the Houslin case is that summary judgment is not guaranteed in a rear-end hit case where there is conflicting deposition testimony and evidence that the driver struck from behind had some degree of negligence in the accident. Thank you to Rebecca Pasternak for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

Defendants’ Conflicting Accounts Held Fatal To Their Summary Judgment Motion (NY)

When moving for summary judgment in a New York negligence action, the moving defendant has the burden of establishing, prima facie, that he or she was not at fault in the happening of accident. Evidence of fault on the part of the defendant can defeat the motion and can come from the defendant’s own proofs. For example, in Charles v. American Dream Coaches, a vehicle operated by plaintiff collided with a bus owned by one of the defendants. Plaintiff pleaded guilty to the traffic offense of driving or operating a motor vehicle in an unsafe manner but still sued the bus owner and driver. The Supreme Court granted defendants motion for summary judgment and plaintiff appealed. The Appellate Division, Second Department reversed, citing the general rule regarding a defendant’s summary judgment burden and finding that defendants had “failed to establish, prima facie, that they were free from fault in the happening of the accident.” In so holding, the court observed that the defendants had submitted conflicting accounts of how the accident happened and failed to eliminate triable issues of fact as to their fault. The Court also held that the fact that the plaintiff pleaded guilty to a traffic offense did not conclusively establish that she was negligent and that a person who pleads guilty to a traffic offense is permitted to explain the reasons for the plea to a jury. The Charles case serves as a reminder that summary judgment is not appropriate where evidence of a defendant’s fault exists, and that care should be taken to avoid submitting conflicting evidence in connection with such a motion. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Make Sure Your Expert Backs Up Their Findings (NY)

In Augustus v. Negron, 2022 NY Slip Op 06255 (2^nd Dep’t, Nov 9, 2022), plaintiff brought suit after a motor vehicle accident. Pursuant to New York State Insurance Law, a plaintiff has to establish that he/she suffered a serious injury pursuant to Insurance Law § 5102(d). A failure to do so in motor vehicle accident means the plaintiff would not be able to sustain a lawsuit in New York. After Justin Augustus brought suit to recover for his personal injuries, the defendants moved for summary judgment stating plaintiff failed to establish he suffered a serious injury within the meaning of Insurance Law § 5102(d), and presented evidence of the independent medical examination in support.  The motion was granted by the trial court. On appeal, the plaintiff argued the defense failed to proffer competent medical evidence that the plaintiff did not sustain a serious injury causing either permanent consequential limitation of use or significant limitation of use categories under the Insurance Law. This argument was not persuasive to the Second Department.   Specifically, the Second Department held defendant’s expert, although finding that there were no significant limitations, “failed to substantiate his belief that the limitations were self-imposed.” As it applied to the back injuries allegedly suffered, the defendants were found to have similarly failed to make a showing that the injury was not caused by the accident. As such, the court did not even review plaintiff’s appealing papers, and granted plaintiff’s appeal, overturning the initial grant for summary judgment. Thus, it is imperative to ensure that the expert reports do far more than merely stating the injury sustained was not casually related, or that the injury is self-limiting in nature. The IME doctor, particularly in his/her report, must provide a sufficient medical explanation for how they made such a determination, otherwise summary judgment may not be in the cards. Thanks to Christopher Palmieri for his assistance with this article.  Should you have any questions, please contact Tom Bracken.Read More

A Tale Of Two Transit Authorities: Relation Back Doctrine Found Not to Apply Where Defendants Were Not United In Interest

In New York, a claim asserted against a new defendant will “relate back” to the date of the original claim if plaintiff establishes that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that the new defendant will not be prejudiced in maintaining its defense on the merits by the delayed claim; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the new defendant as well. See CPLR 203(b). The Appellate Division, Second Department recently addressed the “relation back” doctrine in Chandler v. New York City Transit Authority. In that case, plaintiff was allegedly injured after a city bus driver closed the door on plaintiff’s hand and began to drive away. Plaintiff commenced an action only against the New York City Transit Authority, an improper party. After the statute of limitations expired, plaintiff moved for leave to amend the action to include Metropolitan Transit Authority Bus Company, the proper entity. The Supreme Court denied the motion, finding that the claims against the newer defendant did not relate back to the initial pleading. The Second Department affirmed, holding that while both claims arose out of the same conduct, transaction, or occurrence, plaintiff failed to establish that the Transit Authority defendants were united in interest. To do so, it must be shown that the defendants “stand or fall together and that judgment against one will similarly affect the other.” In a negligence action, to be united in interest further means that “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other.” Since plaintiff could not make such a showing, the court affirmed the denial of plaintiff’s motion to name the Metropolitan Transit Authority Bus Company as a defendant. The takeaway from Chandler is that New York has specific requirements for claims asserted against newer defendants after the expiration of the statute of limitations to “relate back” to claims made in the initial complaint. Claims not meeting these requirements are subject to challenge and dismissal. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Not So Fast: The Importance Of Checking Your Evidence (NY)

There is nothing worse for a litigator than having evidence that you think will guarantee success for your client …only to discover that it isn’t actually helpful. In the recent case of Cheese v. Ferguson, the defendant faced this avoidable problem. In that case, plaintiff and defendant were involved in a car accident on the Long Island Expressway. The Defendant moved for summary judgement based on dash cam video that showed that for twelve seconds preceding the accident, the defendant was driving safely in their own lane. This was enough for the Supreme Court to grant the motion and dismiss defendant from the suit. However, the Second Department reversed after taking a closer look at the dash cam footage. The court observed that for at least five seconds before the accident, plaintiff’s vehicle was pointed toward defendant’s lane of traffic and that the defendant was looking to the left before the impact. The court found that such footage contradicts the defendant’s claim that plaintiff’s vehicle cut into his lane “suddenly and without warning” and thus he had no duty to avoid the accident. Accordingly, the defendant failed to eliminate triable issues of fact as to whether the defendant was the proximate cause of the accident, and the court vacated the summary judgement order. Defendants and their attorneys must always be mindful of the positive and negative impact of evidence used in personal injury litigation. The Cheese decision highlights the importance of defense counsel fully reviewing and understanding such evidence, particularly video footage. Thought should be given as to whether to use this evidence where it contains both exculpatory and incriminating images. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Uber Eats Not Required By Statute To Maintain $1.5 Million In UIM Coverage (NJ)

On September 27, 2022, raised as an issue of first impression in Malzberg v. Josey, et al., no.: A-2883-20, a New Jersey state appeals court held that insurance coverage requirements under the state’s Transportation Network Company Safety and Regulatory Act (“TNCSRA”) do not apply to Uber Eats’ food delivery services. Specifically, the three-judge panel affirmed summary judgment in favor of defendant, James River Insurance Co. (“James River”) finding that underinsured motorist coverage required under the TNCSRA was limited to regulating transportation network companies that use app-based services to connect passengers to drivers for prearranged passenger rides but not necessarily for connecting consumers to food delivery services. In Malzberg, plaintiff, Scott Malzberg (“Plaintiff”) enrolled with an Uber subsidiary, Portier LLC, to use his motorcycle to deliver food through Uber Eats subsidiary, Portier, LLC (“Uber”). While making a delivery, traveling on a North New Jersey highway, Plaintiff collided with Caren Josey (“Josey”) and was thrown from his motorcycle. Plaintiff sustained significant injuries requiring multiple surgeries which exceeded Josey’s personal insurance policy. Generally, under the TNCSRA, transportation network companies must provide at least $1.5 million in underinsured motorist coverage. Uber’s insurer, James River denied underinsured motorist benefits to cover costs exceeding Josey’s coverage being that the commercial policy provided coverage for Uber drivers while transporting passengers but not while delivering food orders. Upon filing suit against Josey and James River, the Essex County Superior Court granted summary judgment in favor of James River in January 2019, dismissing Plaintiff’s claim for underinsured motorist coverage. On appeal, Plaintiff’s argued that food delivery drivers should be afforded the same protection as those transporting passengers since the risk of accident and injury are the same despite specific language in the TNCSRA providing the same.  Irrespective, the court held that the TNCSRA, as presently written, only protects drivers who are in the process of arranging or providing a ride, essentially punting the issue back to the legislature to provide clarity. However, the opinion does note that pending legislation supplementing the TNCSRA would establish insurance requirements for businesses using a digital network driver for pre-arraigned delivery of goods. See S. 468 (as amended by Senate, Mar. 24, 2022). While this pending legislation seeks to bridge gaps in the law created by a constant evolution of technology, the TNCSRA, as presently interpreted, does not require transportation network companies to provide underinsured motorist coverage to food delivery drivers. Thanks to Kendal Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Forum Shopping Comes Up Empty (PA)

In a recent ruling from the Superior Court of PA, Kendall v. Ford Motor Company, the Court affirmed a lower Court granting defendant’s motion to transfer based on forum non conveniens. The complaint concerned a traffic accident that occurred in Bucks County, yet plaintiff’s counsel filed the complaint in Philadelphia County, a plaintiff friendly trial pool. The court held that because the accident, the defendant, and all witnesses resided in Bucks County Philadelphia was improper venue affirming the lower Court’s order. Plaintiff’s counsel brought the case in Philadelphia County hoping to gain the benefit of Philadelphia’s jury pool. The plaintiff argued for jurisdiction on manufacturers and retail sellers of the plaintiff’s car from Philadelphia, bringing claims of strict liability, negligence, and breach of warranty.  Defense moved to transfer the venue to Bucks County using three compelling arguments. First, Bucks County provided access to witnesses. Second, the plaintiff was a resident a Montgomery County and worked in Bucks County.  All defendants were residents of Bucks County. Third, the accident occurred in Bucks County and was investigated by local police. The defendants further bolstered their argument using affidavits of witness hardship.  Based on all of the above the Court affirmed the lower Court’s ruling that the Bucks County was the proper venue for the claim, and for this case at least, the Court shut down an ambitious plaintiff. Thanks to Kevin Riley for his assistance with this post.  Should you have any questions, please feel free to contact Tom Bracken.Read More

New York Court Permits Disclosure Of Social Media Activity In Personal Injury Lawsuit

Millions of Americans document their lives and activities on social media sites such as Facebook, Instagram and TikTok. When a person becomes injured in an accident and files a personal injury lawsuit, should defendants be permitted access to plaintiff’s social media?

In Gentile v. Ogden, the New York Appellate Division, Second Department, recently addressed this question in a case involving a car accident. Plaintiff in that case alleged that she suffered serious neck, back and shoulder injuries that prevented her from performing her daily living activities. In light of such claims, defendants moved to compel the disclosure of all relevant social media activity from all of plaintiff’s social media accounts for a period of three years before the accident. The Supreme Court granted the motion and plaintiff appealed.

The Second Department recognized that CPLR §3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof. It further observed that in order to receive such disclosure, a party need only show that the items sought are reasonably calculated to provide relevant information, not that the items actually exist. In rejecting plaintiff’s arguments and affirming the Supreme Court, the Second Department found that the defendants demonstrated that the plaintiff’s social media accounts were reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life.

The Gentile decision confirms that a personal injury plaintiff’s social media activity is fair game in discovery where his or her physical condition is at issue and the request is tailored to seek information relevant to their damages claims.

Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Burden On Defense In Multi-Accident Injuries To Prove Separate Causation (NJ)

In a recent case in the New Jersey Appellate Division, the court held that when there are claims stemming from multiple car accidents, the burden is on the defense to prove that the resulting injuries were not caused solely by the accident in which they are the defendant, rather they must demonstrate that there are multiple different causes for the injuries.

In 2015, the Plaintiff was involved in a worker’s compensation claim that damaged her spine. One year later in 2016, she was involved in a three-car accident where she was treated for injuries prior to a second car accident in 2018. Following this 2018 accident, she claimed her injuries became much worse and her pain accelerated. The trial judge dismissed the case upon a motion for summary judgment filed by defendant due to the reasoning that plaintiff’s expert report did not compare the prior injuries of the worker’s compensation injury to the acceleration caused by the two subsequent accidents.

When considering defendant’s motion, the court relied on Davidson v. Slater, where the Supreme Court of New Jersey stated that “a plaintiff could carry her burden of moving forward in her non-aggravation case by demonstrating the existence of a permanent injury resulting from the automobile accident without having to exclude all prior injuries to the same body part.” Davidson v. Slater, 914 A.2d 282, 284 (2007). In the case at hand, defendants alleged that the plaintiff was the party that had to show proof of which accident caused which specific injuries and aggravations, but the Appellate Division found that the burden of proving the causative effect of multiple collisions in relation to injuries is with the defendant.

Thanks to Domenica Tomasetti for her contributions to this post.  Please feel free to contact Tom Bracken with any questions.

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