September 12, 2017 | Vol. 71

MUST READS
(2 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Building Code   Expert Aff  

First

Building owner denied summary judgment for tenant’s injuries from fire caused by his having to use multiple extension cords where owner never upgraded electrical system built under 1930 Building Code (except in 1 apartment), because failure to upgrade given change in consumers’ use of electronic devices, including air conditioners, raised a question of fact regarding breach of duty to maintain premises in a reasonably safe condition under Multiple Dwelling L. §78. Plaintiff’s expert’s opinion sufficient even though he did not inspect premises since it was based on facts in evidence and knowledge of changed consumer needs. The 2 dissenters would have granted summary judgment based on plaintiff’s failure to show a building code violation. Daly v 9 E. 36th LLC


Labor Law §240   Sole Cause   Safety Devices  

Court of Appeals

Plaintiff fell due to elevation related risk but foreman’s conflicting testimony raised questions of sole proximate cause, specifically the availability of adequate safety devices, whether plaintiff knew they were available and that he was supposed to use them, whether he chose for no good reason to not use them and whether had he not made that choice he would not have been injured. Valente v Lend Lease (US) Constr. LMB, Inc.

ON THE HORIZON

With only 2 cases this week it is a good time to go over some exciting changes coming to the New York Torts Weekly in the near future.

STATISTICS

In the next few weeks we will be providing statistical analysis of the appeals reported on since the beginning of the New York Torts Weekly (1675 cases so far and continuing). This will include:

  • Showing the percentages of cases Affirmed versus (Reversed/Modified) and whether the result in the appellate court supported Plaintiff or Defendant. This will be shown at the top of every search.
  • Providing periodic articles showing appellate trends and how they affect your decision to pursue an appeal. For example, while overall cases are Affirmed approximately 54% and Reversed or Modified approximately 46% of the time, the numbers are quite different for specific topics, such as:
    1. Serious Injury: 38.71% Affirmed – 61.29% (47.74%/13.55%) (Reversed/Modified)
    2. Premises Liability: 59.76% Affirmed – 40.24% (30.49%/9.76%)(Reversed/Modified)
    3. Medical Malpractice: 59.52% Affirmed – 40.48% (23.21%/17.26%)(Reversed/Modified)
    4. Labor Law §240: 48.25% Affirmed – 51.75% (17.54%/34.21%)(Reversed/Modified)
    5. Labor Law §241: 45.33% Affirmed – 54.67% (10.67%/44%)(Reversed/Modified)
  • The raw data and custom statistical reports will be available for free to lecturers, authors, researchers, organizations, and institutions with proper reference to the New York Torts Weekly.

SEARCH

Searching for a specific topic for a motion, appeal, or in court ruling is the most powerful tool available in the New York Torts Weekly. To make this tool more useful we will be adding the following:

  1. A detailed tutorial on how to maximize the results of a search for any topic and incorporate the results into your motions, appeals, and oral arguments.
  2. A clickable outline format in addition to the search engine form currently available. Using the search engine form, you could, for example, search for “Last Inspection” in a premises case where constructive notice is an issue. Using the new outline format, you will be able to do the same search from its logical place in the outline:
    Negligence:
         Premises:
             Duty:
                 Foreseeability:
                     Notice:
                         Actual Notice:
                         Constructive Notice:
                               Last Inspection:

    The outline search format will include alternative terms (e.g. De Minimus [trivial]) and will be available in October. Because of the limited size of smart phones, the outline search format may not be available on the NYTW Anywhere app.

I hope you are finding the New York Torts Weekly helpful. It is still a work in progress so if you have any suggestions, please send them along to me at support@NYTortsWeekly.com.

Matthew J. McMahon
New York Torts Weekly

NOTEWORTHY
(0 summaries)
MUST READS IF YOU MUST READ

IF YOU MUST READ
(0 summaries)
MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984

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