Evidence

Surveillance Footage Key To Establishing Open And Obvious Defense (NY)

New York courts generally hold that a landowner has no duty to warn of open and obvious dangers. In Lebron v. City of New York, the Appellate Division, Second Department recently addressed whether an inspection pit that plaintiff fell into on the defendants’ property was an open and obvious, and not inherently, dangerous. The defendants introduced surveillance of the accident as evidence of...Read More

Good Record Keeping Stressed In New York Premises Liability Case (NY)

We have previously reported on the importance of good record keeping to help preserve a potential notice defense in New York premises liability cases. In Buffalino v. XSport Fitness, the Appellate Division, Second Department recently addressed these issues in a case in which the plaintiff was injured when the arm and foot pedal of an elliptical machine she was using came loose. She alleged...Read More

Speculative Evidence Is Not Sufficient In A New York Slip And Fall Case (NY)

To prevail on a summary judgment motion in a slip and fall action, a defendant has the initial burden of showing that it (a) did not create the hazardous condition and (b) did not have actual or constructive notice of its existence. In order to prove lack of constructive notice, a defendant must proffer evidence as to when the site was last cleaned or inspected prior to the accident....Read More

Look Out Below–How Much Height Differential Is Required For A Falling Object Claim Under Labor Law 240(1)? (NY)

When a lawsuit alleges that a plaintiff’s injuries are caused by an object falling from the same relative height as plaintiff, does the claim satisfy the elevation hazard requirements of Labor Law §240(1)? Liability under Labor Law §240(1) does not automatically apply just because an object fell and injured a worker. The law requires that a plaintiff prove that at the time the object fell, it...Read More

Who Is Considered A Vehicle Owner Under New York Vehicle And Traffic Law §388? (NY)

In Walker v. Town of Webster, the Appellate Division, Fourth Department addressed whether a former vehicle owner was considered an owner for the purposes of liability under Vehicle and Traffic Law §388. Plaintiff in that case allegedly sustained personal injuries when he was struck by a vehicle operated by defendant Buck. However, plaintiff also sued defendant Osborn, who had transferred...Read More

Safety Devices And Proving Labor Law §240(1) Claims (NY)

I have fallen and can’t get up! Now what? When a plaintiff brings a Labor Law §240(1) claim for injuries sustained from falling through an unprotected opening, he or she must prove that they were exposed to an elevated related risk during construction and must present evidence as to which specific and identifiable safety device would have prevented the fall. Labor Law §240(1) imposes a...Read More

Google Maps Admitted Into Evidence To Challenge Service Of Process (NY)

Google Maps is often used to get an idea of what a particular piece of property looks like or, for more utility, to gauge the distance between two locations. With respect to the latter, the Civil Court of the City of New York, Bronx County recently took judicial notice, over objection, of information contained in two Google Maps printouts submitted as evidence in a traverse hearing. In 2437...Read More

WCM Obtains Summary Judgment Prior To Discovery Pursuant To The Homeowner’s Exemption of NYC’s Sidewalk Law

Wade Clark Mulcahy successfully obtained pre-discovery summary judgment dismissing the Plaintiff’s complaint and the City of New York’s crossclaims against Gloria and Debra Lewis, arguing the insured were shielded from liability pursuant to the Homeowner’s Exemption of New York City Administrative Code §7-210. The action against our clients and the City of New York arises out...Read More

Call Your Next Witness – Angela Levitan of ARCCA Discusses Biomechanical and Human Factors Analysis

Generally, I’m amused by the term “human factors” in the context of expert testimony.  Doesn’t everything involving people necessarily involve human factors?    When I was a prosecutor, I was similarly amused by the “Anti-Crime” police unit.   As opposed to the “pro crime” unit?    Apologies for the Faulkner-esque stream of consciousness...Read More

You’re Fired! Court Weighs Admissibility Of Termination Letter (NJ)

In Hassan v. Williams and ABF Freight, Inc., the plaintiff truck driver was injured when his tractor trailer was rear-ended by the tractor driven by defendant Roland Williams. Plaintiff brought suit alleging negligence and negligence per se for his injuries. Defendants argued that plaintiff merged onto the highway from the entrance at a slow speed cutting in front of defendant. Following...Read More