The Rogak Report: 02 January 2004
- Happy New Year! This special edition has several case reviews.
TIMING OF PLAINTIFF'S MEAL AT RESTAURANT RULES IT OUT AS SOURCE OF
Laboy v. White Castle System Inc., NYLJ 12/19/03 (USDC-SDNY)
On 11/04/01 at 3:00 PM, plaintiff ate four hamburgers at White
Castle. On the same day, plaintiff ate a can of ravioli at home.
Later that day, plaintiff began to experience cramping, abdominal
pain and diarrhea. On the evening of 11/05 she was admitted to the
emergency room, where tests detected the bacteria Campylobacter.
Plaintiff was treated with steroid-based medication and was
discharged on 11/13/01. White Castle moved for summary judgment,
supported by a doctor's affidavit which stated that Campylobacter has
an incubation period of 24 to 72 hours. Also, no other White Castle
patrons became ill. Since the doctor's affidavit was
uncontested, "this means that, since Laboy's began on the night of
November 4, any food that caused these symptoms must have been
ingested no later than the evening of November 3. But Laboy's
consumption of the White Castle hamburgers took place in the
afternoon of November 4," held the Court. The timing of the
plaintiff's meal and the onset of symptoms demonstrates "beyond any
triable issue of fact that there is no cause of action for
negligence." The suit was dismissed.
TOWNHOUSE OWNERS GET SCAFFOLD LAW'S EXEMPTION FOR OWNERS OF 1- AND 2-
Stejskal v. Simons, 765 NYS2d 886 (2d Dept 2003)
Plaintiff, an employee of a construction contractor, was injured when
an A-frame ladder collapsed while he was doing construction work on a
Manhattan townhouse. Defendants, who owned the townhouse, were in
the process of converting it from its former use as 13 separate
dwelling units, back to its original configuration as a one-family
dwelling. At the time of the accident, the building was still
registered as a multiple dwelling and at least two tenants still
remained in the building. Defendants moved for summary judgment
dismissing the Scaffold Law claims under the exemption for owners of
1 and 2 family dwellings who do not control the work. Supreme Court,
Kings County, granted the Motion. The Appellate Division affirmed.
Citing the Court of Appeals in Khela v. Neiger, 85 NY2d 333, the
Court held that when the purpose of construction is to convert a
multiple dwelling into a residential, 1 family space, the owner gets
the benefit of the exemption even though, at the time of the
accident, the building is still a multiple dwelling.
PROCEEDS OF CHILD'S WRONGFUL DEATH SETTLEMENT ARE APPORTIONED BASED
ON QUALITY OF RELATIONSHIP WITH PARENTS
Estate of Ellers, 765 NYS2d 910 (3d Dept 2003)
David and Dawne Ellers were the divorced parents of two children.
For 8 years, they shared joint custody of the children. In March
2000, Dawne got an order of protection against David prohibiting him
from seeing his children unless the children initiated the contact.
One child, Lance, did, but the other, Russell, did not. Russell died
in an auto accident at age 14. His estate negotiated a 250,000
settlement with an insurance carrier for Russell's wrongful death,
pain and suffering. During the approval process, the Surrogate's
Court allocated 5% to conscious pain and suffering and 95% to
wrongful death. The pain and suffering award was divided equally
between the parents, but the mother got 90% of the wrongful death
award, with 10% going to the father. The father appealed the
apportionment. The Appellate Division held that wrongful death
awards are distributed in proportion to the pecuniary losses suffered
by the distributees. Divorced parents do not necessarily get equal
shares. Surrogate's Court must use its discretion and equitable
powers in considering numerous factors, including the relationship
between the decedent and the survivor. In this case, Russell sought
the termination of his father's visits, made no attempt to contact
him, and his schoolwork improved after he stopped seeing his father.
Evidence showed that the father abused the mother in the presence of
the children and told the children he would shoot the mother if he
thought he could get away with it. Russell regularly helped his
mother around the house and had expressed a desire to remain near her
and assist her even after he became an adult. Based on all this
evidence, it was correct to award the mother 90% of the wrongful
death award based on her pecuniary loss.
UM ARBITRATOR PROPERLY DENIED AWARD TO CLAIMANT WHO FAILED TO COMPLY
WITH ARBITRATOR'S DISCOVERY ORDERS
Marcano v. Allstate Insurance Company, 766 NYS2d 41 (1st Dept 2003)
Plaintiff appealed from a decision of Supreme Court, Bronx County,
that upheld an arbitrator's award of zero to plaintiff in an
uninsured motorist arbitration. Plaintiff "neglected to comply with
court-ordered discovery by failing to submit to a physical
examination and to provide... documents and authorizations in a
timely fashion. He also failed to comply with American Arbitration
Association Rule 19, requiring transmittal of all documents to the
arbitrator and the responding party at least 15 calendar days prior
to the hearing." And finally, the arbitrator did not abuse his
discretion by refusing to grant one more adjourment, since plaintiff
had received 'repeated' adjournments. The Court's award is therefore
supported by the evidence, and not arbitrary or capricious.