Cyclists looking for more insurance sought to prove he was employed at the time, court rules he was not. Therefore, he will defend a negligent homicide claim on his own.

By bringing a party to a lawsuit with more insurance or money, many times the defendant can escape with fewer damages. This can happen by the defendant’s actions or sometimes when the plaintiff and the defendant work together to create liability for a third party.

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603 

State: New York

Plaintiff: Randall Fein, etc.,

Defendant: Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent

Plaintiff Claims: Negligence

Defendant Defenses: Was working for his employer at the time of the accident 

Holding: Not working for his employer and not covered by his employer’s Insurance

Year: 2017

Summary 

The plaintiff and/or defendant attempted to bring the defendant’s employer into the lawsuit as a way to bring more money to the settlement table. The defendant while riding a bicycle killed a pedestrian in a crosswalk in Central Park, New York.

The attempt failed because there was no indication the defendant was under the supervision and control of the employer at the time of the accident. 

Facts 

The defendant was riding his bicycle when he struck and killed a pedestrian in the crosswalk.

Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side. 

Defendant cyclists attempted to bring into the case his employer where he worked as a bicycle coach. His employer, Asphalt Green, Inc. (AGI), would have more insurance, more resources to pay off the plaintiff and possibly allow the defendant to escape damages he could never pay.

This decision was based on a motion for summary judgment filed by the Defendant/Respondent alleged employer AGI.

It cannot be determined from the decision if the employer AGI was brought in by the plaintiff or the defendant. Nor was it developed that the plaintiff and defendant had agreed to some type of reduction in damages against the defendant if the employee was found to be working for the defendant at the time, making the employer also liable.

Analysis: making sense of the law based on these facts.

Under New York law, to be working at the time the employer had to be exercising some control over the employee/defendant at the time of the accident. The court did not find any facts to support that allegation and found “there is no indication that AGI was exercising any control over Cook at the time of the accident.”

Nor was the employer separately liable for a claim of negligent hiring and retention of the defendant. To be liable under that theory the employee had to be working for the employer at the time of the accident and the employer had to have known of the employee’s propensity to ride dangerously in Central Park, where the accident happened.

There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention.

The alleged employer was dismissed from the case.

So Now What?

This was a simple way to bring a lot more money to the table for the plaintiff. It might have been done so with the defendant’s help and/or consent. By agreeing to this the defendant might have been able to negotiate with the plaintiff a reduction in the damages he might owe or be completely dismissed from the case upon settlement with the alleged employer.

Although a scary set of facts, you actually see agreements like this often in litigation as the plaintiff’s attempt to get more money than the defendant might have or ever have and the defendant willing to throw his employer under the buss to save his own jersey.

Probably, the defendant already was terminated from his job. You would not want to employ a cycling coach who had killed someone while riding a bike.

What do you think? Leave a comment. 

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By Recreation Law   Rec-law@recreation-law.com       James H. Moss

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