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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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Central Park, Fatality, Employee, Employer, Supervision and Control, Vicarious
Liability, Vicariously Liable, Scope of Employment, Propensity, Riding
Dangerously, Exercise of Control, Excising Control, Negligent Hiring, Negligent
Retention,


 

 

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

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

Randall Fein, etc., Plaintiff-Appellant, v Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent.

4478, 110902/10

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

September 26, 2017, Decided

September 26, 2017, Entered

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL: [*1] Clyde & Co., New York (Jeffrey J. Ellis of counsel), for appellant.

Rutherford & Christie, LLP, New York (Michael C. Becker of counsel), for respondent.

JUDGES: Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.

OPINION

Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 22, 2016, which granted defendant Asphalt Green, Inc.’s (AGI) motion for summary judgment, to the extent of dismissing the amended complaint as against it, unanimously affirmed, without costs.

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.

The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI (see Riviello v Waldron, 47 NY2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 [1979]; Weimer v Food Merchants, 284 AD2d 190, 726 N.Y.S.2d 423 [1st Dept 2001]).

Cook’s unsupported belief, as set forth in an [*2] affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action (see Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 476 N.Y.S.2d 895 [1st Dept 1984]), do not create triable issues of fact as to whether Cook was acting in the scope of employment. Unlike in Aycardi v Robinson (128 AD3d 541, 9 N.Y.S.3d 262 [1st Dept 2015]), relied upon by plaintiff, there is no indication that AGI was exercising any control over Cook at the time of the accident (see Lundberg v State of New York, 25 NY2d 467, 255 N.E.2d 177, 306 N.Y.S.2d 947 [1969]).

The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. 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 (see White v Hampton Mgt. Co. L.L.C., 35 AD3d 243, 244, 827 N.Y.S.2d 120 [1st Dept 2006]), and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment (see Richardson v New York Univ., 202 AD2d 295, 296-297, 609 N.Y.S.2d 180 [1st Dept 1994]).

We have considered plaintiff’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017


Defendant was not sanctioned for failing to preserve broken bicycle parts, but only because the plaintiff could not prove the defendant’s acts were willful and contumacious.

Preservation of evidence has become a major issue of lots of litigation. Every business not needs to create a plan for how long to retain  documents, email, records, etc., and why those records are destroyed when they are.

John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

State: New York; Supreme Court of New York, Kings County

Plaintiff: Hywel John

Defendant: CC Cyclery and CO LLC and William Svenstrup 

Plaintiff Claims: Motion to strike defenses of the defendant for failing to preserve evidence

Defendant Defenses: failure to preserve the evidence was not willful

Holding: for the Defendant

Year: 2017

Summary

When you are placed on notice of possible litigation, you must preserve all evidence surrounding the facts of the litigation. That includes in this case, broken bicycle parts. Failing to preserve evidence can result in sanctions, including denial of your defenses. 

Facts 

The plaintiff had his bicycle serviced at the defendant’s bicycle shop. While riding his bicycle one day the front wheel of the bike dislodged causing him to fall to the ground.

After the accident, he took his bicycle back to the defendant. While the plaintiff was at the shop, he requested information about the defendant’s insurance policy. The defendant did not provide that information to the plaintiff. The plaintiff later emailed the defendant an ask for the same information and again was not provided it.

The defendant repaired the damages to the bike. After replacing the broken parts, he eventually threw them away. 

In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release. Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick release. Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle….

Again, the plaintiff asked for information about the shop’s insurance policy. Again, the shop refused to provide that information. The shop also claimed that it never touched the plaintiff’s quick release, so therefore the shop could not be
at fault for the plaintiff’s accident. 

The plaintiff then filed this lawsuit. Upon being placed on notice of a potential litigation, the law requires all parties to preserve evidence. Because the broken parts of the bicycle were thrown away, the plaintiff filed a motion asking for sanctions against the defendant for failing to preserve the evidence.

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

The basis of the plaintiff’s motion was:

Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle
parts without first “advis[ing] plaintiff or anyone else that he intended to throw out or destroy the purportedly defective parts”. Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015”. According to plaintiff, defendants “knew or should have known that the parts removed and replaced from
plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident”

In order for the court to grant any sanctions against the defendant, the plaintiff must prove the acts of the defendant were done in a willful or contumacious manner.

The issue then resolves around the point in time that the defendant should have known that possible litigation was imminent. The plaintiff argued this occurred, and the defendant was placed on notice when he asked for the defendant’s
insurance information. The defendant argued that since the defendant was a lay person, how could he interpret this as being placed on notice.

Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts

The defense also argued that loss of the broken bicycle parts was more damaging to them because they could not show how the plaintiff failed to keep his bicycle in proper condition and failed to provide for proper maintenance for his bike.

The court denied the plaintiff’s motion for several reasons. First, the plaintiff could not show that the destruction of the evidence, the broken parts was not “willful, contumacious or in bad faith.” Nor at the time of the destruction of the evidence was the defendant on notice of possible litigation.

Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading”
Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence”. Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation

The plaintiff’s motion was denied. 

So Now What? 

Although not a new area of the law, destruction of evidence has taken on new meaning and value in the digital age. Communications by phone never needed to be kept because there was no way to keep them. Emails can be preserved indefinitely, and this has created tons of litigation setting out the rules for when evidence must be preserved and when it can be destroyed. 

When in doubt, unless told to destroy it by your attorney or your insurance company, keep it. Better, give the broken parts back to your customer. 99% of the time the parts will be thrown away by the time the customer gets back home.

However, this is an area you need to check with your attorney about. Create a plan for how long you are going to hold on to documents, preserve emails and other digital information and what to with broken parts.

Sanctions for failing to preserve evidence in many other states do not have such a high bar to protect the defendant. Willful
and contumacious in most other states is far beyond what is required. So, in many other locals, sanctions are easily levied.

By the way Contumacious means stubbornly or willfully disobedient to authority or is a stubborn refusal to obey authority or, particularly in law, the willful contempt of the order or summons of a court. The term is derived from the Latin word contumacia, meaning firmness or stubbornness.[i]

 What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529 

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bicycle, subject accident, notice, deposition, replaced,
shop, repair, contumacious, stricken, willful, pick, material evidence, prima
facie case, failed to demonstrate, negligently, discarding, layperson,
destroyed, destroy, threw, front wheel, confirmed, repaired, riding, asking,
email, bike, preservation of evidence, Willful and contumacious, Willful,
contumacious, quick release, bicycle parts,

 

 

 

 


 

 

 


John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

John v. CC Cyclery, 2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

Hywel John, Plaintiff, -VS- CC Cyclery and CO LLC and William Svenstrup, Defendants. Index No. 501255/15

501255/15

SUPREME COURT OF NEW YORK, KINGS COUNTY

2017 N.Y. Misc. LEXIS 3213; 2017 NY Slip Op 31810(U)

August 22, 2017, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: bicycle, subject accident, notice, deposition, replaced, shop, repair, contumacious, stricken, willful, pick, material evidence, prima facie case, failed to demonstrate, negligently, discarding, layperson, destroyed, destroy, threw, front wheel, confirmed, repaired, riding, asking, email, bike

JUDGES: [*1] PRESENT: HON. LARRY D. MARTIN, J.S.C.

OPINION BY: LARRY D. MARTIN

OPINION

Upon the foregoing papers, plaintiff Hywel John (“plaintiff”) moves for an order: (1) pursuant to CPLR § 3126, striking the Answer of defendants CC Cyclery and Co LLC and William Svenstrup (collectively, “defendants”) on the grounds of negligent and/or intentional spoliation of material evidence; and (2) extending the time to file a Note of Issue (NOI).

Brief Facts & Procedural History

Plaintiff commenced the instant action to recover compensatory damages for personal injuries he allegedly sustained on. November 28, 2014, when the front wheel of a bicycle (the “subject bicycle”) he was riding dislodged, causing him to be flung from the bicycle onto the ground (the “subject accident”). In the verified bill of particulars, plaintiff alleges, among other things, that defendants “negligently repaired and maintained” (Bill of Particulars, ¶ 13) the subject bicycle.

At his January 11, 2016 deposition, plaintiff testified that he initially went to defendants’ repair shop, CC Cyclery and Co. LLC (“Cyclery”), to have guards placed on the subject bicycle’s wheels and a rack fitted onto the back (Plaintiff’s Affirmation, exhibit E, Hywel Deposition, 26: 24-25; [*2] 27: 13-14; 22-23). Plaintiff returned to Cyclery on the date of the subject accident to pick up his bicycle, and was riding along Avenue A, in Brooklyn, New York, when the subject accident occurred [**2] (id. at 31: 22-25; 32:2-11). Plaintiff testified that immediately after his accident, he returned to Cyclery, informed an individual named Mr. Jeff Underwood (“Mr. Underwood”) of what transpired and left the bicycle in the shop’s possession for further repairs to be performed (id. at 64: 7-12).

Thereafter, plaintiff emailed Mr. Underwood on December 3, 2014 asking for the company’s insurance information, claiming that he was “pretty concerned about [his] healthcare contribution going forward” as well as his “lack of ability to work properly over the next couple of months” due to his injuries (id. at exhibit M). Mr. Underwood responded to plaintiff in an email dated December 9, 2014 stating, among other things, “your front wheel had to be straightened and the tire had to be replaced . . .” and “I also switched out the quick release on the front to a Allen bolt . . .” (id. at exhibit L). Mr. Underwood did not address plaintiff’s request for insurance information in his email. According to plaintiff, he returned [*3] to Cyclery on January 23, 2015 to pick up his bike and, once again, asked Mr. Underwood for the company’s insurance information (id. at 68: 15-17). However, plaintiff claims that Mr. Underwood refused to comply with plaintiff’s request for insurance information (id. at 68: 18-20).

At Mr. Underwood’s deposition on July 26, 2016, he stated that he is the former owner of Cyclery and, among other things, was working as a mechanic for the company at the time of the subject accident (id. at exhibit H, Underwood Deposition, 17: 5-9; 18: 12-14). Mr. Underwood confirmed that he made repairs to plaintiff’s bicycle both before and after the subject accident. Moreover, during his deposition, Mr. Underwood identified a photo of the subject bicycle (previously marked as Defendants’ exhibit A) and confirmed that it accurately depicted the condition of the bike on the date of the accident (id. at 53: 23-25; 54: 2-3; see exhibit K).

In his post-accident repair of plaintiff’s bicycle, Mr. Underwood stated that he replaced several of the parts, including a device called a quick release (id. at 60: 5-22). Mr. Underwood further admitted that upon showing plaintiff which bicycle parts he fixed, he threw away the broken parts including the quick [*4] release (id. at 61: 15-23). Additionally, Mr. Underwood testified that he held onto the defective parts “until the trash came” on the week that plaintiff picked up his bicycle [**3] (id. at 64: 5-9).

According to Mr. Underwood, plaintiff asked him to talk to the shop owner about submitting an insurance claim on plaintiff’s behalf, and Mr. Underwood replied that the company could not do so (id. at 63: 16-19). Mr. Underwood asserted that he never touched the quick release device prior to the subject accident, and, therefore, defendants could not be at fault for plaintiff’s accident (id. at exhibit H, 52: 3-5; 8; 19-21).

Plaintiff thereafter commenced the instant action on February 4, 2015. On March 1, 2016, plaintiff served defendants with a notice to “preserve and retain any and all parts and equipment f[ro]m the plaintiff’s bicycle . . .” (see id. at exhibit F). On May 5, 2016, a compliance conference was held and an order was issued directing, among other things, for plaintiff to “preserve the bicycle at issue for inspection by defendants” (id. at exhibit G).

Discussion

Plaintiff contends that defendants’ Answer should be stricken pursuant to CPLR § 3126 because Mr. Underwood disposed of the bicycle parts without first “advis[ing] plaintiff or [*5] anyone else that he intended to throw out or destroy the purportedly defective parts” (Plaintiff’s Affirmation, ¶ 45). Plaintiff asserts that “Mr. Underwood threw out these parts in spite of having preserved and retained exclusive possession and control over these parts at CC Cyclery from November 28, 2014 (DOA) and continuing until sometime after the plaintiff returned to the shop to pick up his bicycle on January 23, 2015” (id.). According to plaintiff, defendants “knew or should have known that the parts removed and replaced from plaintiff’s bicycle were significant and material evidence in a reasonably foreseeable litigation, based upon plaintiff’s repeated requests for insurance information in order for him to effectuate a claim for the damages he sustained in this accident” (id. at ¶ 54).

In response, defendants assert that they did not act in a willful or contumacious manner in discarding the bicycle parts. Rather, defendants contend that plaintiff’s act in asking Mr. Underwood about insurance was “merely a request for insurance information that [plaintiff] could use to obtain additional health care contributions” and did not constitute notice “that the accident would result [*6] in [**4] litigation with claims of negligence on the part of the defendants” (see Defendants’ Affirmation in Opp, ¶ 4). Additionally, defendants aver that Mr. Underwood–an unrepresented layperson at the time–would not have interpreted plaintiff’s request for insurance as notice that he was required to preserve the replaced bicycle parts (see Defendants’ Affirmation in Opp, ¶ 4). In any event, defendants argue that striking their Answer is not an appropriate sanction in this instance because the missing bicycle parts do not prejudice or impede plaintiff’s ability to make out his prima facie case (id. at ¶ 5). In fact, defendants assert that the loss of such evidence is more prejudicial to them, “as it will be evidence that they now lack to show that plaintiff failed to keep his bicycle in proper condition and failed to request a proper maintenance from defendants at the time that he [initially] brought the bicycle in to be repaired” (id. at ¶ 6).

Based upon a review of the record submitted by the parties and the relevant law, the Court denies plaintiff’s motion. CPLR § 3126 provides for the striking out of a party’s pleadings when that party “refuses to obey an order for disclosure or wilfully fails [*7] to disclose information which the court finds ought to have been disclosed . . .” (CPLR § 3126 [3]). However, such a drastic remedy is “unwarranted absent a ‘clear showing that the failure to comply with discovery demands was willful, contumacious or in bad faith'” (Foncette v LA Express, 295 AD2d 471, 472, 744 N.Y.S.2d 429 [2d Dept 2002]). Moreover, under the common law, “when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading” (Baglio v St. John’s Queens Hosp., 303 AD2d 341, 342, 755 N.Y.S.2d 427 [2d Dept 2003]). Additionally, a pleading may be stricken where the evidence lost or destroyed is so central to the case .that it renders the party seeking the evidence “prejudicially bereft of appropriate means to confront a claim with incisive evidence” (Foncette, 295 AD2d at 472; see Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890, 895 N.Y.S.2d 135 [2d Dept 2010]). Notably, “even if the evidence was destroyed before the spoliator became a party, [the pleading may nonetheless be stricken] provided [the party] was on notice that the evidence might be needed for future litigation” (Baglio, 303 AD2d at 342).

[**5] As an initial matter, the Court notes that a Notice to Preserve Evidence was not served on defendants until more than one year after the subject accident occurred and the instant action was commenced (see MetLife Auto & Home v Joe Basil Chevrolet, Inc., 1 NY3d 478, 484, 807 N.E.2d 865, 775 N.Y.S.2d 754 [2004]) [*8] . Absent such notice, the Court finds that plaintiff’s act in requesting insurance information was insufficient to put a layperson such as Mr. Underwood on notice that litigation was contemplated.

Moreover, the Court finds that plaintiff has failed to demonstrate that Mr. Underwood’s act in discarding the removed bicycle parts was willful and contumacious (see Di Domenico v C & S Aeromatik Supplies, 252 AD2d 41, 52, 682 N.Y.S.2d 452 [2d Dept 1998]). Plaintiff also fails to establish that Mr. Underwood’s actions have completely deprived him of the ability to prove his prima facie case (cf. Baglio, 303 AD2d at 342). As defendants note, plaintiff still has at his disposal the photograph reflecting the defective condition of the bicycle at the time of the accident, as well as Mr. Underwood’s undisputed deposition testimony detailing which portions of the bicycle he fixed and which portions he discarded. Thus, while it cannot be said that plaintiff is not adversely affected by the loss of the defective bicycle parts, the Court finds that plaintiff has failed to demonstrate that he is prejudiced by this loss (see Awon, 69 AD3d at 890; Foncette, 295 AD2d at 472).

Conclusion

Accordingly, that portion of plaintiff’s motion seeking to strike defendants’ Answer is denied. That portion of plaintiff’s motion seeking an order providing for the filing of [*9] the NOI is denied as moot. A review of the court’s record indicates that plaintiff filed the NOI herein on October 14, 2016. The parties are reminded of their September 6, 2017 appearance in JCP.

The foregoing constitutes the decision and order of the Court.

ENTER,

/s/ Larry Martin

HON. LARRY MARTIN

J.S.C.


The New York Court found the injuries received by the Plaintiff, there was an inference that the collision was violent.

Snowboarder standing at the base of the hill talking was injured when a skier struck here when he could not stop.

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

State: New York; Supreme Court of New York, Appellate Division, First Department

Plaintiff: Keri Horowitz

Defendant: Ethan Chen

Plaintiff Claims: Negligence

Defendant Defenses: Inherent Risk

Holding: For the Plaintiff

Year: 2016

Summary

The entire case resolves around two issues. The inherent risks of skiing do not include standing at the bottom of the hill and getting hit when just talking and the plaintiff’s injuries were so bad; she was obviously hit by the defendant at a high rate of speed.

Facts

The facts are best described by the court.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably in-creased risk

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

A very simple case. When a skier is skiing out of control at a high rate of speed in the beginner area and knows he has limited ability to stop, is he liable if he hits someone standing in the beginner area. This court said yes.

Collisions are an inherent risk of skiing in New York. However, as here, the collision could not be expected. The plaintiff was not skiing, was barely “on the slope” and was still hit by a skier.

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.

The court found that those factors possibly gave rise to reckless conduct. Reckless conduct is not an inherent risk of skiing.

The supporting statement the court made about reckless conduct is interesting. The court found the injuries the plaintiff received could also infer the plaintiff was skiing recklessly.

Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.

Rarely are the injuries to the plaintiff ruled as indicative of something other than the injuries the plaintiff received unless an expert opines that the injuries could only have occurred by something specific happening. Meaning an expert witness is required to say that an injury that bad meant the defendant was traveling so fast.

So Now What?

It’s really hard to argue with this decision. When you get to the bottom of the hill, you should be slowing down and under control. Here the defendant was not doing either and hit the plaintiff. No one skiing could expect to be hit when standing at the bottom of the ski area. Consequently, a collision like that is not an inherent risk of skiing.

What do you think? Leave a comment.

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Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Keri Horowitz, Respondent, v Ethan Chen, Appellant.

1649, 152242/14

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

July 5, 2016

July 5, 2016, Entered

PRIOR HISTORY: Horowitz v Chen, 2015 N.Y. Misc. LEXIS 4314, 2015 NY Slip Op 32238(U) (N.Y. Sup. Ct., Nov. 20, 2015)

CORE TERMS: skiing, reckless conduct, snowboarding, reckless, beginner’s, slope, speed

HEADNOTES

Negligence–Assumption of Risk–Skiing and Snowboarding Accident–Possibility of Reckless Conduct by Defendant

COUNSEL: [***1] Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellant.

Gersowitz Libo & Korek, P.C., New York (Michael Chessa of counsel), for respondent.

JUDGES: Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ.

OPINION

[*410] [**61] Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 24, 2015, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” (Pantalone v Talcott, 52 AD3d 1148, 1149, 861 NYS2d 166 [3d Dept 2008]).

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the [***2] significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances (see Moore v Hoffman, 114 AD3d 1265, 980 NYS2d 684 [4th Dept 2014]). Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ. [Prior Case History: 2015 NY Slip Op 32238(U).]


You cannot assume the risk of a recreational activity if the defendant alters the activity and adds risk that he does not inform the guest about.

If you run PVC pipe across the slope that blends in with the slope, a skier coming down the hill does not assume the risk of hitting PVC pipe. PVC does not fall from the sky, is not  natural, and in 50 years of skiing it not something I’ve ever seen on a slope.

Zhou, et al., v. Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

State: New York

Plaintiff: Judy Zhou, et al

Defendant: Tuxedo Ridge, LLC, et al.

Plaintiff Claims: negligence

Defendant Defenses: assumption of the risk and the mother should have watched her daughter more closely

Holding: for the defendant

Year: 2017

Summary

There are two defenses in this case. The first is assumption of the risk. The standard defense used for injuries arising from activities in outdoor recreational activities. The second is not discussed by the court but one we have all wanted to argue at least once. 

The defendant makes several arguments in support of summary judgment, including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk.

The defendant is not at risk because the mother let the child do what the child wanted and did not supervise the child. Ski areas are not baby sitters. If you buy a minor a lift ticket, the ski area knows the lift ticket allows access by the minor to whatever lift the minor wanted to ride and to come down any hill the minor wants to ride.

However, if that child is injured, the ski area should not have allowed that child on the lift because it was too dangerous.

That argument is a landmine to make in court. Mothers of injured children are liked by juries because they feel for the pain the mother is suffering. And who in their right mind would say that a mother is doing a bad job of raising their kids.

The other defense assumption of the risk would have won the case if the defendant had not laid down PVC pipe on the slope in a way that no one could see the pipe. The pipe was there to create a coral to lead skiers back to the lift. However, when you can’t see it, don’t know it’s there, and hit it, it is hard to argue that PVC is a natural risk of skiing.

Facts 

The facts are quite simple. 

…the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the  chairlift. The PVC pipes were as hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts. 

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

The court started its analysis of the case with the famous Cardozo quote that created the defense of assumption of the risk.

The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929)

However, the court quickly shifted its analysis to whether the injured minor plaintiff could have assumed the risk.

A seven-year-old skier could not assume the risk of a risk she was not properly educated about. Unless the risk is inherent, part of skiing, or known, understood and accepted by the plaintiff, or part of the risk of the sport, the plaintiff cannot assume the risk. 

So Now What? 

If the PVC pipe were visible; fenced, painted red, behind warning signs, this case would have gone the other direction. However, when you hide a risk not only do you lose the assumption of risk defense, but you might also set yourself up for a reckless or willful charge that could lead to greater damages. 

Seriously, don’t be stupid is the bigger thing to learn from this case. 

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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