Tag: Negligence

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Owner of calf liable for motorist’s death, New York’s highest court rules

A farm whose calf strayed onto a road can be sued for the death of a woman who was struck by a car and died while trying to help the animal, New York’s highest court has ruled in a case that illustrates the concept of legal causation.

Holly Hain stopped her car late one night on the southbound lane of a road in upstate Steuben County to assist a calf that had escaped its closure. Leah Jamison, driving north, collided with Hain, killing her. Hain’s husband sued both Jamison’s mother, who owned the vehicle, and the Drumm Family Farm, which owned the calf, for negligence.

The trial court refused a request by Drumm to dismiss the lawsuit, finding that it could not conclude that the woman’s leaving her car in the road was sufficiently removed from the calf’s escape as to rule out the farm as a cause of the accident. The Appellate Division overturned the ruling, finding that the farm did not cause the accident.

But the Court of Appeals disagreed. “The very same risk that rendered negligent the farm’s alleged failure to restrain or retrieve its farm animal – namely, that the wandering calf would enter a roadway and cause a collision – was, in fact, the risk that came to fruition,” Judge Leslie Stein wrote on behalf of six of her colleagues in a ruling decided Dec. 22. “That the Farm could not predict the exact manner in which the calf would cause injury to a motorist does not preclude liability because the general risk and character of injuries was foreseeable.”

At issue before the court was the concept of so-called proximate causation. Even if Hain’s husband could show that Drumm had a responsibility to prevent the calf from entering the road and that the farm failed to uphold that responsibility, the husband still needed to establish that the Drumm’s negligence caused his wife’s injury.

The requirement of proximate causation promotes fairness. In short, would it be fair to make the Drumm’s pay for the injury to Holly Hain? The answer, as the Court of Appeals explained, turns on whether the harm is foreseeable and, in cases like this one, whether the intervening act – Jamison’s driving her car into Hain – is itself a foreseeable consequence of the conditions created by Drumm’s negligence.

An injury with more than one cause requires the judges to determine whether the intervening act has severed the chain of causation. As Stein explained, factors that inform the determination include the foreseeability of the event resulting in injury; the passage of time between the originally negligent act and the intervening act; whether the original act of negligence was completed or ongoing at the time of the intervening act; and what, if any, other forces combined to produce the harm.

Cases in which the intervening acts are said to sever the chain of causation have one of two distinguishing features, the court noted. First, the risk created by the original negligence did not produce the harm. (A bus driver who hits a wheelchair-bound plaintiff does not cause the injuries that arise form the plaintiff’s use of a defective replacement wheelchair.) Or second, the initial act of negligence has ceased, such as when a defendant negligently causes a vehicular accident, and the plaintiff has reached a position of safety only to be injured in a second accident.

In the case of Holly Hain, a jury “could reasonably conclude decedent’s actions in exiting her vehicle and entering the roadway were an entirely ‘normal or foreseeable consequence of the situation created by the defendant’s [Drumm’s] negligence,’” the court noted (citations omitted).

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Law

Albany fire victim can sue city, court rules

You can sue a city for negligence in performing a governmental function if you can establish that the municipality owes you a duty of care, a New York appeals court has ruled in a lawsuit brought by a homeowner whose house burned down after the fire department told him it had been extinguished.

The blaze at issue began on the evening of Feb. 2, 2013 at the home of John Trimble, an Albany man who called 911 to report the emergency. The fire department responded to the call and proceeded to put out the fire. Some time later, according to Trimble, the lead investigator for the department advised him that the fire had been extinguished and it was safe to enter the house.

The Trimbles went in, retrieved some belongings and then left to spend the night with relatives. Several hours later, the fire started again and burned down the house. Trimble sued the city, claiming negligence. A trial judge dismissed the case, finding the city owned him no duty and was entitled to governmental immunity.

The Appellate Division’s third department disagreed. “We are of the view that, by making affirmative representations to plaintiffs that the fire had been fully extinguished and that it was safe to re-enter the home, the [d]epartment assumed an affirmative duty to plaintiffs,” Justice Karen Peters wrote for a three-judge panel in a ruling dated Nov. 23 that returned the lawsuit to a jury.

Nor could the city rely on the immunity that shields cities from lawsuits for discretionary actions taken during the performance of governmental functions. Though fighting fires invariably involves discretion, the city failed to demonstrate that its alleged negligence resulted from an exercise of judgment.

According to Trimble, the department failed, in violation of its own procedures, to remove a stack of firewood and the remains of lawn furniture and other debris from a window well that the department determined was the location of the second fire.  A report by the department later showed that none of the firefighters could remember pulling away the debris.

“Thus, on this record, it cannot be said that the asserted negligence — failing to remove and fully extinguish a stack of firewood and damaged lawn furniture — was the consequence of an actual decision or choice on the part of the [d]epartment,” the court noted.

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Law

Public Storage, self-storage company, must face class-action lawsuit over rental terms, court rules

Wikimedia Commons
Wikimedia Commons

A woman who rented a self-storage unit in New Jersey can sue the owner for its alleged failure to maintain the premises notwithstanding the owner’s attempt to limit its liability, a federal court has ruled.

The ruling, by the U.S. District Court in Camden, means that Jackeline Martinez-Santiago, who in February 2012 rented a storage space for $63 a month from Public Storage, can continue a class-action that she filed last December against the company on behalf of herself and other consumers.

The decision highlights the principle that a business cannot renounce responsibility to maintain its premises in a safe condition for customers. It also shows that terms in a lease agreement do not become enforceable simply because a consumer initials or otherwise assents to them.

At issue was a provision in the lease agreement signed by Martinez-Santiago that limited Public Storage’s liability for injury to people or damages to property in the absence of fraud.

Five days after Martinez-Santiago rented the unit, her then-boyfriend, Orlando Colon, whom Martinez-Santiago had listed on the lease as an “alternate contact name,” slipped on a patch of ice in front of the unit. Colon later sued Public Storage for his injuries, asserting that the company failed to keep the premises safe.

Martinez-Santiago also sought to cancel a provision in the agreement that required her to indemnify Public Storage for Colon’s claims.

For its part, Public Storage, which has about 2,200 locations nationwide, sought indemnification from Martinez-Santiago for Colon’s injury and asserted that the lease provisions are lawful under New Jersey law.

The court rejected the company’s contentions. “Businesses are in the best position to maintain their premises for the safe use of customers, and enforcing the exculpatory provisions would give Public Storage permission to be careless – negligent, reckless – in the maintenance of its property,” wrote Judge Jerome B. Simandle in an opinion dated August 14. “Public Storage has a duty to guard against any known dangerous conditions on its property or conditions that should have been discovered.”

“That Public Storage would seek to make Martinez-Santiago responsible for money defendant owed to Colon based on defendant’s alleged failure to clear snow and ice in front of its own storage unit stands outside the norm of reasonable business practice,” Simandle added.

According to the court, walking outside a storage unit is not an inherently risky activity comparable to activities such as exercising at fitness centers, which the courts have allowed to enforce clauses that shield them from liability for customers’ injuries.

The ruling reaffirms the common law rule that a business or other possessor of real estate that is open to the public at large must protect people who come onto the premises from reasonably knowable hazards. Business owners have a legal responsibility to inspect their premises at reasonable intervals and to either eliminate the hazard or warn customers of its existence.

The court also scratched a provision in Martinez-Santiago’s lease that required her to assert any legal claim against Public Storage within 12 months of the occurrence that gave rise to the demand.

The company’s reliance on the provision “would be unreasonable because the time to bring suit challenging clauses for the tenant’s liability and indemnification for Public Service’s negligence could expire before a tangible loss is suffered,” wrote Simandle, who noted that the New Jersey laws under which Martinez-Santiago sued Public Storage have a six-year statute of limitations.

“A consumer would have to be clairvoyant to challenge contractual fine print addressed to circumstances (like indemnification) that did not themselves arise when the contract was signed,” Simandle wrote.

Michael Galpern, a lawyer for Martinez-Santiago, termed the lease agreement “an incredibly anti-consumer contract where Public Storage, for years, has been taking advantage of people,” according to the New Jersey Law Journal, which first reported the ruling.

Lawyers for Public Storage did not comment.

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Law

Brooklyn deli owner not liable for terror tabby

Jennifer Barnard / Wikimedia Commons
Jennifer Barnard / Wikimedia Commons

What responsibility do you have if your pet hurts someone?

That’s the question that arose after Eileen Napolitano and her schnauzer entered the Boro Park Deli Grocery in Brooklyn’s Borough Park section a few years ago. As reported Tuesday in The New York Law Journal, a large, gray cat stepped out from a shelf of Entenmann’s cakes and flailed at her dog. Napolitano contended that when she picked up her pup, the cat attacked her right leg and injured her calf.

Napolitano sued the deli in a case that presented the issue whether the deli’s owner had a reason to suspect that the feline was dangerous. At trial, the owner contended that he had no reason to suspect that the cat was dangerous. He also alleged that it wasn’t his cat. Napolitano introduced evidence that the owner had kept the cat at the deli at least 10 days prior to the incident.

Picturing the scene?

Judge Francois Rivera of the state Supreme Court in Brooklyn rejected Napolitano’s claim because she was unable to prove that the owner knew of the animal’s propensity to attack.

The New York Law Journal cites several decisions in recent years by the state’s courts that reinforce Rivera’s holding, which, as the publication notes, is based on a refusal to recognize negligence as a cause of action against owners of domesticated animals. Here in New York, you’re not liable for negligence if your pet or domesticated animal hurts someone. But you will be liable — without any examination of fault — if you knew of the animal’s dangerous or vicious propensities.

That policy, which is sometimes referred to as the “one bite rule,” distinguishes New York from states that hold pet owners liable for negligence if the owner fails to take reasonable steps to safeguard people who visit their homes or business premises.

Some New York judges have suggested that it’s time to jettison the policy. In a 2006 ruling, New York’s Court of Appeals, by a vote of 4 to 3, denied recovery to Larry Bard, a self-employed carpenter who suffered a lacerated liver and fractured ribs after being charged in a pen by Fred, a hornless dairy bull who roamed the enclosure for the purpose of impregnating cows.

The evidence produced at trial established that prior to the incident Fred had never threatened anyone. That led the court to conclude that the owner of the dairy farm was not liable for Bard’s injuries.

Writing for the majority, Judge Susan Phillips Read reaffirmed the state’s refusal to subject owners of domestic animals to liability for negligence. According to Read:

We have never, however, held that particular breeds or kinds of domestic animals are dangerous, and therefore when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities. Similarly, we have never held that male domestic animals kept for breeding or female domestic animals caring for their young are dangerous as a class. We decline to do so now, or otherwise to dilute our traditional rule under the guise of a companion common-law cause of action for negligence.

However, some of Read’s colleagues faulted the majority’s logic. “Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull,” wrote Judge Robert S. Smith in dissent. “Why should a person hit by a subway train be able to recover and one hit by a breeding bull be left without a remedy?”