Court of Appeals Addresses Discovery of Facebook Accounts
by David M. Goodman, Esq. On February 13, 2018, the New York Court of Appeals issued a decision in Forman v. Henkin addressing the scope of discovery of Facebook accounts. The plaintiff commenced this action seeking monetary damages for bodily injuries allegedly sustained when she fell from a horse while riding. At deposition, she testified about a Facebook account with “a lot” of photographs depicting her pre-accident life and activities, and that she deactivated that Facebook account six months after the accident. After depositions, the defendant requested an authorization, unlimited in scope, to obtain the plaintiff’s entire “private” Facebook materials. Plaintiff failed to respond to that request. Defendant moved to compel, and the trial court granted that motion in part. Specifically, plaintiff was ordered to produce all photos of herself privately posted to her Facebook account before the accident that she intended to introduce at trial, all photographs of herself privately posted to her Facebook account after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing a timeline of each time plaintiff posted a private message after the accident and the number of characters or words in those messages. The trial court did not order disclosure of the content of any of plaintiff’s pre- or post-accident written Facebook postings. From the “be careful what you wish for” department, only the plaintiff appealed the trial court’s decision. (The Court of Appeals noted that the scope of its review was limited by defendant’s failure to appeal the Supreme Court’s order.) In a 3-2 decision (134 A.D.3d 529 (1st Dept. 2015)), the Appellate Division modified the trial court’s order by limiting disclosure to posted photographs (pre- or post-accident) that plaintiff intended to introduce at trial, and eliminated the requirement for plaintiff to provide an authorization for the private message post accident entries. As it was a 3-2 decision, leave to appeal to the Court of Appeals was granted as of right. The Court of Appeals did not hold that the filing of a personal injury litigation necessarily causes the plaintiff’s entire Facebook account to be discoverable. The Court also did not make discoverability dependent upon what the account user chooses to share on a public or private portion of Facebook. Rather, as is so often the case, the Court set forth elements and factors to be considered and balanced when determining the scope of disclosure. The first factor is “the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to asses whether relevant material is likely to be found on the Facebook account.” Second, the Court held that since there must be a balancing of “the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the Court should issue an Order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of non-relevant materials.” The majority of cases involving such disclosures involve personal injury claims. In such cases, the Court advised “it is appropriate to consider the nature of the underlying accident and the injuries claimed and to craft a rule for discovery information specific to each.” The Court also acknowledged that limitations may be necessary involving potentially sensitive or embarrassing material that may be marginally relevant to the underlying case. An analogy that I have considered is the foundational principle that in bringing a personal injury action, a plaintiff does not open up their entire medical history for examination. Rather, there shall be full disclosure regarding the body part or parts alleged to have been injured in an accident. It is apparent that such a limitation on the scope of discovery is analogous to what the Court is attempting to accomplish in Forman. Finally, it should be noted that this decision only addresses a Facebook account, and only discusses disclosure of photographs, not posted text. It is reasonable to assume, however, that the decision would apply to other social media information, and that on a case-by-case basis both postings and photographs would potentially be discoverable.
Court of Appeals Addresses Comparative Negligence
By David M. Goodman, Esq. On April 3, 2018, the Court of Appeals issued a lengthy 4-3 opinion in Rodriguez v. City of New York addressing whether plaintiffs must establish the absence of their own comparative negligence to obtain partial summary judgment in a comparative negligence case. The Court held plaintiffs do not bear that burden. The facts of the case were not in dispute. Plaintiff worked for the New York City Department of Sanitation (DOS) as a garage utility worker. He and his co-workers were tasked with outfitting the sanitation trucks with tire chains and plows for the winter. While a truck was being directed into position for this work, the truck skidded and crashed into a parked car, propelling the car into the plaintiff and pinning him between the car and a stack of tires. Plaintiff was allegedly injured as a result. The means and methods as to how the truck was being positioned deviated from established DOS safety procedures. Plaintiff commenced a negligence action against the City seeking monetary damages. At the close of discovery, plaintiff moved for partial summary judgment on the issue of the City’s liability, and the City cross-moved for summary judgment. By a decision issued October 16, 2014, the Supreme Court, New York County denied both motions. In denying plaintiff’s motion, the Court found triable issues of fact regarding foreseeability, causation, and plaintiff’s comparative negligence. Plaintiff appealed. On September 1, 2016, the Appellate Division, First Department affirmed the trial Court’s denial of plaintiff’s motion for partial summary judgment on the issue of negligence, relying upon the Court of Appeals’ oft-cited memorandum decision in Thoma v. Ronai, 82 N.Y.2d 736 (1993) in holding that plaintiff failed to make a prima facie showing that he was free from comparative negligence. The Appellate Division granted plaintiff leave to appeal to the Court of Appeals, certifying the question whether the Supreme Court’s order, as affirmed by the Appellate Division, was properly made. The Court of Appeals reversed. The Court of Appeals recognized the interplay between summary judgment motions governed by CPLR 3212 and the culpable conduct and comparative negligence principles of CPLR Article 14-A. The Court found that these are two separate and distinct principles. In discussing the application of CPLR 3212, the Court noted that “comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of damages.” CPLR 1411 is New York’s comparative negligence statute, establishing that a claimant’s or decedent’s culpable conduct “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages” (emphasis added). The Court noted that CPLR 1412 explicitly states that a claim of culpable conduct under CPLR 1411 is an affirmative defense to be pleaded and proved by the party asserting that defense. The Court held that to place the burden on a plaintiff to establish an absence of comparative fault in order to obtain summary judgment is “inconsistent with the plain language of CPLR 1412.” The Court reasoned that to hold otherwise could under certain circumstances result in the comparative negligence standard becoming, in practice, a contributory negligence standard, which result would be contrary to CPLR 1411. As to its prior Thoma decision, the Court examined the briefs filed in that case and determined that the Court in Thoma “never addressed the precise question we now confront,” at least in part because it “never considered the import of article 14-A.” The Court pointed out that the purpose of summary judgment is to narrow the issues for trial, and a decision to allow a determination of a defendant’s liability as a matter of law, independent of plaintiff’s comparative fault, serves that purpose. In this case, the Court pointed out the issues for trial would be narrowed to plaintiff’s negligence (comparative fault) and whether such negligence was a substantial factor in causing plaintiff’s injuries. It is possible that the Court of Appeals’ decision in Rodriguez may be used by defendants as a sword, rather than by plaintiffs as a shield. Following Rodriguez, a defendant’s argument may become, “the plaintiff was negligent, and here is the proof of that negligence.” To the extent Rodriguez essentially shifts the burden to plaintiffs to explain their actions, this may be a persuasive position for a defendant to take at trial.
Change in Statute of Limitations for Certain Medical Malpractice Actions
by David M. Goodman, Esq. On January 31, 2018, New York State Governor Andrew Cuomo signed “Lavern’s Law,” establishing a tolling provision for certain medical, dental, and podiatric malpractice cases. The changes and amendments can be found at CPLR section 203(g)(2). The statute provides a tolling, or extension, for calculating the time when the statute of limitations begins to run in cases of failure to diagnose cancer. Prior to this change, there was no distinction between cancer and other medical malpractice actions. While the 2 ½-year statute of limitations for medical malpractice actions under CPLR section 214-a has not changed, the new law affects when that time will begin to run. CPLR section 203(g)(2) now provides that in medical, dental, or podiatric malpractice cases based on an act or omission alleging negligent failure to diagnose cancer or a malignant tumor, the 2 ½-year statute of limitations will not begin to run (i.e., is tolled) until the later of either: (i) when the person knows or reasonably should have known of the alleged negligent act or omission or that such alleged negligent act or omission has caused injury, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness, or condition. Section (i) thus provides a “date of discovery” exception in cancer cases. The 2 ½-year statute of limitations begins to run when a person discovers (or reasonably should have discovered) an alleged failure to diagnose cancer or a malignant tumor and that such alleged failure has caused injury. For example, if a woman goes in for a mammogram that is read to be normal but then discovers three years later that the mammogram was misread and there was a malignancy, the statute-of-limitations clock does not begin to tick until the point of discovery. Before the passage of this statute her action would have been time barred based upon the 2 ½-year statute of limitations, but after the passage of this statute, the patient would have 2 ½ years beginning from the point of discovery to commence an action. The statute does provide a limitation or “cap” on how long the action can be tolled – i.e., the action shall be commenced “no later than 7 years from such alleged negligent act or omission.” In the eyes of the legislature, the 7-year cap places finality on the commencement of malpractice cases under this tolling provision. Section (ii) is merely a codification of the continuous treatment doctrine and provides that the 2 ½-year statute of limitations will begin to run on the date of the last treatment. This continuous treatment provision does not include the 7-year cap.
The New “Ride Sharing” Law in New York State
by David M. Goodman, Esq. As a result of a final budgetary push in Albany last April, ridesharing finally made its way to Upstate New York this year. Buffalo, Rochester, Syracuse, and Binghamton now have the benefit of ridesharing opportunities like Uber and Lyft that were previously only available in the New York metropolitan area. As a result, more claims will be presented involving a ridesharing component. However, although the enabling statutes are in place, many of the particular rules, regulations, and other details for this new area of law are still a work in progress. Understanding the Language Uber and Lyft are referred to as “Transportation Network Companies” (TNC). A TNC is licensed and operates in New York State and uses only a digital network (i.e., app) to connect “TNC passengers” to “TNC drivers” who operate a “TNC vehicle” to provide a “TNC prearranged trip.” A TNC prearranged trip begins when a TNC driver accepts a TNC passenger’s request through use of the digital network controlled by the TNC. The trip begins at the moment of acceptance, and ends when the last requesting passenger departs the TNC vehicle. The nexus of the process is the TNC digital network: a TNC driver receives connections to potential passengers and related services through the app, and a TNC passenger uses the app to arrange for transportation. Insurance Coverage TNC drivers are not employees of the TNC and are using their own motor vehicles. The TNC is not the owner or operator of the vehicle and is not the employer of the TNC driver. This structure does not fit within the existing framework for insurance coverage and motor vehicle liability law in New York State. The TNC law thus presents a new paradigm: no vicarious liability can be attributable to the TNC for the potential negligent acts of the TNC driver, and the TNC driver is an independent contractor whose own auto policy may not cover TNC activities. So, where does coverage come from? The TNC statute creates and establishes financial responsibilities for TNCs and drivers. The TNC is mandated to provide a “group policy” that recognizes the TNC driver and provides financial responsibility while the driver is both logged into the TNC’s app and engaged in a TNC prearranged trip. The “group policy” is fundamental. The group policy includes mandatory bodily injury, property damage, no-fault, uninsured motorist, supplementary uninsured/underinsured motorist, and motor vehicle physical damage coverages. The driver’s own insurance carrier(s) can provide an additional layer of coverage in the form of TNC endorsements and TNC umbrella coverage (should the driver choose to purchase same), and carriers are now offering coverage to TNC drivers to be purchased as an add-on to their existing automobile policies, but the TNC group policy is mandatory. The statute provides for both first-party and third-party benefits under the TNC group policy. Coverage under the group policy is not conditioned upon an unavailability of coverage from the driver’s insurer; rather, it is understood that the driver’s insurer may in fact exclude all TNC coverage. Standard no-fault coverage under the group policy is applicable to any passenger or pedestrian involved in a TNC transaction. The statutory scheme for liability coverage is as follows:
- During “Phase I,” when the TNC driver is logged into the app but has not yet received a passenger request, coverage is $75,000/$150,000.
- During “Phase II,” when the driver accepts a request and is heading toward pick-up, there is a single liability limit of $1,250,000. The same limit is provided for SUM/UIM coverage.
- During “Phase III,” when the driver is actually transporting passengers (e., from the moment of pick-up to the moment that the last passenger departs the vehicle), the same liability limits apply as for Phase II.
Labor Law: Court of Appeals Latest Attempt to Rein in Section 240(1) Liability
by Richard A. Galbo, Esq. On March 30, 2017, the Court of Appeals issued a 4-3 decision in O’Brien v. Port Auth. of N.Y. & N.J., 2017 N.Y. Slip Op. 02466, 2017 WL 1166795. Considering the three new Judges appointed to the Court in the last year, and despite a strident dissent by Judge Rivera, this decision may reflect a significant shift under section 240 of the New York Labor Law. The decision could have the effect of limiting liability under section 240, or at the very least curtailing summary judgment awards. The plaintiff was working at ground level on a rainy day. At the time of the accident, he was heading to his employer’s shanty to get his rain jacket. To do so, he used a temporary exterior metal staircase (also referred to as a temporary scaffold), which was wet due to rain. As the plaintiff stepped off the tread of the top step, his foot slipped and he fell down the stairs, sustaining injury. He was unable to prevent the fall because his hand slipped off the rail, which was also wet. Plaintiff’s motion for summary judgment included an expert affidavit opining that (1) the staircase was “not in compliance with good and accepted standards of construction site safety and practice” because the stairs were “smaller, narrower and steeper than typical stairs,” making it difficult to maintain proper footing; (2) the stairs showed signs of wear; and (3) the anti-slip measures (small protruding nubs) were inadequate as they afforded limited slip protection and were otherwise worn. The defendants countered with their own expert who opined that (1) the stairs were “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather”; (2) the use of perforated holes to allow water to pass and raised nubs to provide traction were sufficient anti-slip measures; (3) the tread depth met good and acceptable construction industry standards; and (4) there was no evidence the treads were worn. The trial Court found issues of fact under section 240(1). While the Appellate Division acknowledged the conflicting expert opinions, it found the plaintiff entitled to summary judgment because the plaintiff fell, such that the staircase as a safety device therefore either malfunctioned or was inadequate to protect the plaintiff against the risk of falling. The Appellate Division granted leave to appeal, asking the Court of Appeals to review its decision granting summary judgment to the plaintiff on his section 240(1) claim. The Court of Appeals reversed, holding that the conflicting expert opinions raised an issue of fact as to whether the staircase provided adequate protection. The Court went on to hold that to the extent the Appellate Division’s opinion can be read to say a statutory violation occurred merely because the plaintiff fell down the stairs, this does not provide an accurate statement of the law. However, this is precisely the way courts have interpreted section 240 – i.e., rarely allowing a jury to decide whether a safety device was inadequate, and considering a plaintiff’s injury prima facie evidence of inadequacy. As such, for the dissenting Judges, liability was undisputed because the stairway is a safety device that failed to adequately protect the plaintiff from the risk of slipping and that failure was a proximate cause of the plaintiff’s injuries. However, the Court’s majority now disputes this interpretation of section 240, and states that a presumption that a device was not good enough to provide proper protection is only valid in cases where the scaffold or ladder collapses or malfunctions for no apparent reason. Where this is not the case, then liability under section 240 will become an issue of fact for the jury and will be subject to the jury weighing competing expert opinions regarding the adequacy of the safety device to afford proper protection, even where the plaintiff is injured using the device in its intended manner. The Court leaves for future interpretation what factors a jury will be allowed to consider as “proper protection” by stating that compliance with industry standards would not, in itself, establish the adequacy of a safety device under section 240. The Court also read the defendants’ expert opinion as stating more than compliance with industry standards but did not elaborate on the “more,” leaving the question of what proof will be sufficient to defeat summary judgment and place the matter before a jury, as well as the question of what will be sufficient evidence of proper protection to sustain a finding of no liability.
While trial will remain all-or-nothing, without a liability finding before trial more cases are likely to settle for sums less than under the damage-only regime. Also, subjecting liability to expert proof will require the introduction of all of the facts and circumstances of the accident into trial, and even though the plaintiff’s culpable conduct will not be a defense, the plaintiff’s conduct could in any event influence the jury’s liability finding and/or damage assessment. This decision represents the most significant jurisprudential development under the Labor Law since the introduction of the defenses of “recalcitrant worker” and “sole proximate cause.” It is surely a favorable development for construction industry defendants – a fact not lost on the three dissenting Judges who argue at length that the decision misapprehends the statute’s legislative intent to protect workers under a strict liability standard that allows for a liability determination without reference to industry custom or practice.
The decision appears to rewrite the rules for the courts by curtailing the circumstance in which summary judgment is granted, putting plaintiffs to their proof before a jury and allowing a battle of experts to decide liability, thereby relieving some of the strain of strict liability on defendants.
Court of Appeals Decision: Insurer Found to Have Breached the Duty to Defend Loses Right to Rely on Policy Exclusions to Dispute its Duty to Indemnify
Fourth Department upholds Labor Law 240(1) Liability for Planks Dropped on Plaintiff’s Head.
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Plaintiff’s Fall through an Attic Access Door within Ambit of Labor Law §240(1).
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Second Department finds Question of Fact whether Plaintiff’s Failure to Follow Instructions was Sole Proximate Cause of her Accident.
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Replacing a Ballast in a Florescent Light Fixture is Maintenance Unrelated to Construction Excavation or Demolition.
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