Safe Driver Lesson One: Stay Awake

Kuebler v Kuebler, 2011 NY Slip Op 09693 [4th Dept 2011] [available here]

I imagine most parents dread teaching their teen children to drive. It seems crazy to cede control of an expensive machine, capable of inflicting wanton death and destruction if used incorrectly, to a teenager, a creature practically guaranteed, by combination of hormones and undeveloped frontal lobes, to make bad decisions. And to have to actually ride along as a glorified child tries to master the basics of operating a complex machine at high speeds? Ludicrous.

But, most parents hopefully do not have it as bad as the dad in Kuebler v Kuebler. Mr. Keubler let his 16-year-old child, proud owner of a learner's permit, drive the family car, with Mr. Keubler riding along as the required licensed driver supervisor.

Things did not end well. Nor did they particularly start well. Within five minutes of leaving home, the 16-year-old fell asleep at the wheel and crashed the car into a tree. Dad was injured, and sued his son for damages.* The dad asked the trial court to find that his son's actions--you know, falling asleep and driving off the road--were the sole, 100% cause of his injuries, and that the father's damages should not be reduced for any contributory negligence on his part. The trial court agreed, and the son appealed.

The Fourth Department reversed, holding that the father was no mere passenger. He was duty-bound, as the only licensed driver in the vehicle, to supervise his son and to "take necessary measures to prevent negligence on the part of the driver with the learner's permit." This included, apparently, making sure that his son did not fall asleep at the wheel. There was proof that the father did not closely supervise his son, and in fact "was preoccupied with reviewing a list on a piece of paper" and did not even know things were going pear-shaped until he felt the vehicle leave the roadway. Given those facts, the Fourth Department held that the jury should be free to consider whether the father contributed to his injuries by his own failure to properly supervise his son.

Justices Carni and Lindley wrote a separate concurrence, and would also have held that the father's damages could be reduced because he assumed the risk of driving with his 16-year-old son, the same way a sky diver or bungee jumper takes the risk that the ultra-dangerous activity will result in injury. This seems about right.

*This seems weird, and it is, but it happens when a parent needs to get at the proceeds of an insurance policy covering the child.

Picky homeowner not liable for injuries to tree trimmer

Byrd v Roneker, 2011 NY Slip Op 09716 [4th Dept 2011] [available here]

New York's Labor Law imposes strict liability on property owners for gravity-related injuries* suffered by workers performing construction or renovation on the property.  Thankfully for most of us, the Labor Law statute specifically exempts "owners of one and two-family dwellings who contract for but do not direct or control the work." So, you are not strictly liable if the guy you hire to clean your gutters takes a header into the hydrangeas.

In Byrd, the homeowner hired a roofer, and the roofer hired someone to "cut tree branches that extended over the roof." While the tree cutter was clearing the branches, the homeowner pointed out a limb he wanted cut down. When the tree cutter started to cut the branch, the homeowner again interjected, and asked that the branch be cut at its base. When the tree cutter tried to cut the branch at the base, he fell out of the tree, and promptly sued the homeowner under the Labor Law.**

The tree cutter argued that, by directing him to cut a specific branch and then asking it be cut a certain way, the homeowner exercised sufficient control over the tree-cutter's work to overcome the homeowner exception in the Labor Law. Not so much, said the Fourth Department, noting the critical distinction between telling the worker what to do, and telling the worker how to do it. From the decision:

There is no direction or control if the owner informs the worker what work should be performed, but there is direction and control if the owner specifies how that work should be performed.

Here, although defendant instructed plaintiff to cut down the tree limb in question and told him to cut the limb at its base, there is no evidence that defendant told plaintiff how to perform the task, nor did defendant provide plaintiff with any tools or equipment. In fact, it is undisputed that defendant was inside the house when plaintiff fell. The mere fact that defendant told plaintiff that he wanted the limb cut at its base, rather than where plaintiff initially had begun to cut the limb, does not subject him to liability under Labor Law 240[1] or 241[6].

(Byrd, 2011 NY Slip Op 09716.)

So, good news for fussbudgets everywhere. Feel free to tell your painter he missed a spot; if he falls off the ladder while touching up, it's his problem.

* Think Wil-E Coyote. The Labor Law applies when a worker falls or something falls on the worker. (See e.g. Dipalma v State of New York, 2011 NY Slip Op 09724, also decided this term, and holding that the strict liability imposed by the Labor Law applies even where the very heavy object fell "only one or two feet before it struck claimant.")
** Well, he probably went to the hospital and stuff first.

Can you hear the sirens now?

Once upon a time in New York, the police could only issue a ticket for using a cell phone while driving if the motorist also committed some additional, different violation of the Vehicle & Traffic Law.  A cop could always pull you over if he saw you chatting on your cell phone, but if you were not otherwise breaking the law, the worst the officer could do was give you a warning and send you on your way.

That all changed this summer.  The Legislature amended the VTL to upgrade "Use of a mobile telephone" while driving to a primary offense, meaning  that an officer may issue a ticket for using a cell phone while driving even if he observes no other violation of the VTL.  (See N.Y. Veh. & Traffic Law 1225-c.)  The revisions were effective July 12, 2011.

Simply "holding a mobile telephone to, or in the immediate proximity of, the user's ear" is considered "using" a cell phone for the purposes of the law. (See Veh. & Traf. 1225-c[1][c].)  A driver holding a cell phone "to, or in the immediate proximity of his or her ear while such vehicle is in motion" is presumed to be "engaging in a call" for purposes of the law.  (See Veh. & Traf. 1225-c[2][b].)  This eliminates the popular "you can't prove I was making a call" defense.  The section does not apply if the motorist is using the cell phone for certain emergency calls, or to police officers using a cell phone "in the performance of their official duties."  (See Veh. & Traf. 1225-c[3].)

The maximum fine for a cell phone ticket is $100, and a violation adds 2 points to the driver's DMV record.  (See here for the full table of points for specific traffic violations.)   

Prompt means prompt: navigating New York's prompt suspension law

In New York, if you are arrested for DWI and your blood alcohol content is over .08% , you must surrender your license at arraignment* if the judge finds "that the accusatory instrument** is sufficient on its face" and there is "reasonable cause to believe that the driver operated a motor vehicle with a blood alcohol level in excess of [.08] of 1% as evidenced by the results of a chemical test."  (Schermerhorn v Becker, 64 AD3d 843, 846 [3d Dept 2009]; VTL 1193[7]b].)  A defendant is entitled to a hearing to determine if reasonable cause exists to believe his or her BAC is above .08%.  

The timing of the prompt suspension is important, but often overlooked.  The prompt suspension must happen at arraignment.  If the arraignment concludes--i.e. if the defendant enters a not guilty plea and the judge does not expressly hold the arraignment open--then the judge loses the power to suspend the defendant's license pending prosecution under the prompt suspension law.  (See VTL 1193[7][b] ["The suspension . . . shall occur not later than at the conclusion of all proceedings required for the arraignment"].) 

Often, the arraignment happens within hours or days after arrest, and the Court simply does not receive the supporting paperwork necessary to establish a BAC of .08 or higher--typically the certified breathalzyer results for a breath test, or lab results for a blood draw--in time for the arraignment.  The Court should not suspend a defendant's license if it does not have reliable, first-hand evidence of the defendant's BAC level.   

But what if the judge decides to go ahead with the arraignment without suspending a defendant's license, but later receives the appropriate supporting documents?  Can the judge suspend the defendant's license at a later court date once it receives evidence that the defendant's blood alcohol content exceeds .08%?

No.  Clark Zimmermann, Jr. a partner in my office, recently had just such a case.  The judge who arraigned his client in Town Court did not suspend the client's license, because the Court had not received the paperwork establishing the BAC level.  The client pleaded not guilty, concluding the arraignment. 

At the next court date, a different judge took over the matter, and indicated he had now received the BAC paperwork and was going to suspend our client's license pending prosecution at the next court date.  We brought an Article 78 proceeding in Supreme Court, basically asking a Supreme Court judge to prohibit the Town Court from suspending our client's license, as arraignment was concluded and under the plain language of the statute the Town Court judge no longer had the authority to suspend our client's license.

The Town Court judge, to his credit, conceded in his response papers that he had no authority to suspend our client's license and would not attempt to do so.  As a result, our client gets to keep his license while his case unfolds. 

As with most aspects of a DWI case, the devil is in the details.  The New York statutory DWI scheme is complex, and it pays to know what your rights are at every step of the way.  Far too many defendants simply hand their licenses over to the judge at arraignment, believing that they have no choice but to do so.  The Court wants to suspend your license based on a BAC level of over .08%?  Make them prove it.  If the Court can't prove the BAC level at arraignment, you get to keep your license while the case unfolds.  Period.

 

* An arraignment is the first court appearance.  The defendant typically pleads not guilty to whatever charge he/she is facing, bail is set (if appropriate), and the matter is adjourned. 

**  The accusatory instrument is nothing more than the piece of paper alleging that the defendant committed a specific crime and how he committed it.  Every element of the crime, and facts sufficient to establish every element, must be alleged.

SCOTUS: "straw" witness not enough to satisfy confrontation clause

Bullcoming v New Mexico, 564 US __ [available here]

The United States Supreme Court, in a 5-4 majority decision by Justice Ginsberg, held that a forensic laboratory report certifying "that defendant's blood alcohol concentration was well above the threshold for aggravated DWI" is inadmissible unless the analyst who conducted the tests and certified the results testifies at trial.  The prosecutor at trial tried to get around the confrontation clause requirement by having "another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample" testify about the test results and introduce the lab report in evidence.  Justice Ginsberg says:  nice try, but "that surrogate testimony does not meet the constitutional requirement."  You need the testimony of the analyst who actually performed the test and certified the results.

Brian Shiffrin has his take on the decision over at New York Criminal Defense.  As Brian points out, Justice Sotomayor filed a separate concurrence, and was nice enough to point out all the ways a prosecutor might work around a defendant's confrontation rights in a way that might gain her blessing (and thus tip the balance 5-4 the other way by the time the next confrontation case reaches the high court).         

When good dogs go bad

A creepy abundance of decisions from the last Fourth Department packet involving domestic animals turning on their human minders and inflicting all manner of injury and mayhem.  Like the dog who invaded the next yard over and chased his neighbor into his house, causing the neighbor to trip "over the threshold of his front door and injure his knee." (Barone v Phillips, 2011 NY Slip Op 03395 [4th Dept 2011].)  Or the dog who ran into the road and caused a motorcycle accident.  (Rockwood v Labate, 2011 NY Slip Op 03406 [4th Dept 2011].)  Or the dog who "ran into the road and collided with plaintiff's bicycle, causing plaintiff to be propelled over the handlebars."  (Smith v Reilly, 2011 NY Slip Op 03357 [4th Dept 2011].)

And its not just dogs.  Even baby horses are up to no good these days.  (Krieger v Cogar, 2011 NY Slip Op 03433 [4th Dept 2011] [six-day old colt knocked a woman to the ground].)

So when is an owner liable for the wanton destruction caused by Fido?  The rule is the same no matter the type of domestic animal, and hinges on what the animal owner knew or should have known about his animal's ability and inclination to get up to mischief.  "It is well settled that 'the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.'"  (Barone, 2011 NY Slip Op 03395.)  The term "vicious propensities" does not really have its plain meaning under the case law--your dog does not have to be the second coming of Cujo for liability to attach.  "[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities--albeit only when such proclivity results in the injury giving rise to the lawsuit."  (Id. at *1.)

So:  the owner of the dog with a history of charging the road is potentially liable for causing an accident.  (Smith, 2011 NY Slip Op 03357.)  No liability attaches to the owner of a dog who is usually kept securely fenced, and pulled a Houdini for the first time on the day of the accident.  (Rockwood, 2011 NY Slip Op 03406.)  And the owner of the dog who charged his neighbor and causing him to bravely flee into his own home is not liable where the record contained "no evidence suggesting that the dog had a propensity to run at people."  (Barone, 2011 NY Slip Op 03395, although Justice Gorski dissented and would have found the dog's history of playfully jumping on people established enough of a propensity to survive summary judgment.)

The same rule extends to horses, who are considered "domestic animals" under the Agriculture and Markets Law, and that's good enough for the Fourth Department.  A six-day-old colt that exhibits normal "avoidance" behavior while being halter trained--described clinically (but still sort-of-heart-breakingly) by the Court as a newborn colt's tendency "to avoid human contact and seek the protection of his mother"--does not have vicious propensities that would expose his owner to liability.  (Krieger, 2011 NY Slip Op 03433.)        

Labor Law update

Cases interpreting and applying New York's Labor Law are legion, largely fact-specific, and in isolation, not particularly helpful. The whole body of law sort of creeps along, a great blob oozing its way over the casebooks and search engines and annotations. Rather than pull individual cases from the sludge, I present them the way God and the appellate courts intended: as one big pile. But every pile has a top, so we start with the most recent offering from the Court of Appeals, followed by the latest from the Fourth Department.


A front-end loader = power shovel /backhoe

St. Louis v Town of North Elba, 2011 NY Slip Op 02481

Plaintiff was part of a crew laying "twenty foot sections of snow-making pipe" at a winter sports complex in Lake Placid, New York. The crew suspended "one of the pipe sections in the air during the welding" process by means of a hydraulic clamshell clamp suspended from the bucket of a front-end loader. The plaintiff stood beneath the pipe, and banged the freshly welded seams with a hammer to remove excess metal. You can predict the result: the clamp opened, the pipe dropped, and plaintiff was pinned to the ground.


Plaintiff argued that the owner of the complex was liable under Labor Law 241(6) for failure to "comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." The specific safety regulation at issue was 12 NYCRR 23-9.4[3], but that regulation only applied to "power shovels and backhoes" that are used for material handling. The regulation required that any load suspended from the bucket of a shovel loader or backhoe be secured by wire rope.

The owner of the sports complex argued that the pipe at issue was suspended from the bucket of a front-loader, and not from the bucket of a backhoe or a shovel loader, and therefore the regulation did not apply and, by extension, there was no violation of Labor Law 241(6). The Court of Appeals rejected this narrow reading, instead holding that the function of the equipment, and not its name, was determinative. From the opinion:

[T]he preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name, when determining the applicability of a regulation. This approach accounts for those circumstances where a slightly different machine is utilized for the same risky objective that is perhaps more frequently or more efficiently achieved by the machine designated by name in the Code.

Judge Smith dissented, and would have read the regulations literally. He notes that the majority's approach "makes no sense at all in the context of a statute whose whole point, as we have interpreted it, is to give a remedy only for violation of a regulation's specific commands."


Refrigerator repair covered under Labor Law 240(1)

Ozimek v Holiday Valley, Inc., 2011 NY Slip Op 02568

The plaintiff in Ozimek "fell from a ladder while working on a commercial freezer" when the ladder allegedly slid out from under him. The defendants argued that Labor Law 240(1)--imposing strict liability on property owners for injuries sustained by workers < etc >--did not apply because plaintiff was engaged in routine maintenance in a non-construction, non-renovation context." The Court agreed with the general rule exempting routine maintenance, but held that plaintiff was "investigating a malfunction," and such activity is not merely routine maintenance and is therefore protected by Labor Law 240(1). Defendants survived plaintiff's cross-motion for summary judgment, however, by submitting the affidavit of a witness that observed plaintiff fall because he simply "missed the ladder" when descending from the refrigerator.

The Court also held that the operator of the freezer was entitled to summary judgment on plaintiff's claims under Labor Law 200. Unlike the other sections of the Labor Law, section 200 merely codifies the "common law duty imposed upon an owner or general contractor to maintain a safe construction site," and does not impose strict liability. The operator of the freezer had no control over the premises where the action occurred, and therefore could not be held liable under section 200.

Down in a hole

Kobel v Niagra Mohawk Power Corp., 2011 NY Slip Op 02581

Plaintiff Tim Kobel "slipped and fell backwards while working at the bottom of a manhole." Niagra Mohawk owned . . . the hole, I guess. Plaintiff alleged violations of Labor Law 200 (general duty of owner to provide safe work site), and two claims under 241(6) (violation of specific regulations, in this case a regulation prohibiting work on a slippery surface and a regulation prohibiting work around hazardous openings). The trial court refused to grant NiMo summary judgment on any ground.

The Fourth Department affirmed in part. The Court kept alive the section 200 claim because NiMo failed to establish as a matter of law that it did not have actual or constructive notice of the dangerous condition at the bottom of the manhole. The Court also allowed the plaintiff to proceed under section 240(6) for a violation of the regulation prohibiting work on slippery surfaces, noting that the surface itself does not need to be elevated for the regulation to apply and that the regulation was sufficiently specific to support liability under section 240(6).

The Court did reverse, however, and grant NiMo summary judgment on one ground, holding that the "sump hole" plaintiff stepped in at the bottom of the manhole was not a "hazardous opening" under the regulations.

On the Catwalk

Timmons v Barrett Paving Materials, Inc., 2011 NY Slip Op 02605

It is a great irony that so many plaintiffs seeking protection of the Labor Law--a statutory scheme that seeks to encourage safe practices at construction sites--engage in some truly reckless practices. Enter plaintiff Timmons. He tack-welded a cat-walk in place, and discovered after doing so that the whole structure was tilting a bit to starboard. Rather than un-tack the weld and try again, "Timmons' coworker attempted to level the catwalk by pushing down on it with a manlift while Timmons, who was standing on a lower catwalk, prepared to weld a support gusset underneath the tack-welded catwalk."

This worked out about as well as you would expect. The cat-walk broke free, striking Timmons and pinning him between the catwalks. The Fourth Department held that Labor Law 240(1) did not apply, because the catwalk was "not an object being hoisted or secured," i.e. there was no elevation-related risk.

The Court went on to hold that the owner could not be held liable under Labor Law 200 because, while the owner's plant superintendent generally oversaw the work and was generally in charge of job safety, such a general oversight duty is not sufficient to hold the owner liable for "dangerous conditions aris[ing] from the contractor's methods."