Panel Splits on Grandma’s Playground Tumble

The plaintiff took her grandchildren to a cook-out. She claimed that a “worn out” area in playground rubber matting caused her to fall. For the chip fracture and dislocation of the elbow, the jury awarded $575 K, which the trial judge reduced to $200 K. The defendant -coincidentally a hospital – contended there was insufficient evidence of negligence and appealed.

Three members of the First Dept. panel held that the plaintiff’s testimony was sufficient to prove existence of a dangerous condition that should have been discovered by the defendant. They said the reference to “worn out” implied that the defect occurred slowly. They also reinstated the full damage award.

Two justices dissented, stating that there was no evidence that the claimed worn area was visible or apparent by reasonable inspection.

Cruz v. Bronx Lebanon Hosp. Ctr. (1st Dept. , June 30, 2015).


Computer Fraud Coverage Required Hacking

The insuring agreement covered “loss resulting directly from a fraudulent entry of Electronic Data.” After the insured paid out fraudulent claims for services never rendered under its Medicare Advantage plans, it sought recovery under the computer- system- fraud rider to its financial institution bond. The fraudulent claims were electronically submitted into the insured’s computer system.

The Court of Appeals (New York’s highest court) held that the term “fraudulent entry of electronic data” unambiguously referred to hacking – unauthorized access – and not to mere lying by a person otherwise authorized to access the system. Thus, no coverage.

Universal Am. Corp. v National Union (June 25, 2015).


Mediation Mayhem via Email

A settlement offer conveyed by an attorney’s email was binding even though it was contrary to the clients’ instructions.

A mediation session did not end with settlement, just an offer that was to expire if not accepted within 48 hours. Just before the deadline, the other side said they needed more time due to an emergency. The offeror’s attorney advised his clients to leave the door open, but failed to read an email from two of them favoring “removing” the offer. The offeror’s attorney sent an email to opposing counsel extending the acceptance deadline, and opposing counsel accepted the offer via email.

The Arizona Supreme Court held that the attorney’s email was a sufficient writing under Rule 80(d), and that the apparent authority of the attorney was sufficient to bind the clients, notwithstanding the lack of any present dispute that the attorney lacked actual authority at the time to extend the offer.

Robertson v. Alling (June 24, 2015).

Premature Judgment Results in Dismissal Without Prejudice

The Court of Appeals, Division One, says that  Rule 76 contemplates three steps to completion in compulsory arbitration cases :  (1) the arbitrator’s notice of decision; (2) the arbitrator’s award, and (3) the Superior Court’s entry of judgment.

Seems the prevailing side got over-excited and rushed things a bit.  After the arbitrator ruled in his favor, he presented the arbitrator with a document denominated as a judgment, which the arbitrator signed. After the time provided by Rule 76(d) to apply for a  judgment expired, the arbitration loser moved to dismiss. The motion was denied, and the arbitration loser appealed.

The Court of Appeals, Division One, noted that it had no appellate jurisdiction because denial of a motion to dismiss is not final. Nevertheless, the court exercised its discretion and took special action jurisdiction.

The court found that the penultimate paper signed by the arbitrator was, at most, a step-two award document. Since no application for a proper judgment was ever made,  the case was dismissed, without prejudice. The court also denied dueling requests for attorney’s fees.

The award in question was a bit less than $12K. Now  the dispute is back to square one.

Phillips v. Garcia (June 9, 2015).


Wild, Wild East – Free Movie Stampede May Cost Promoters

They gave away more free tickets to a movie promotion than there were seats in the theater. As the mostly teenage guests were shuffled around in a search for seats, a “stampede” developed. The plaintiff  was hit from behind and made airborne.

No summary judgment for the defendants. The First Department held that they may have been negligent in overbooking and failing to provide adequate crowd control.

Sachar v. Columbia Pictures (June 4, 2015).

Mercury Man Beats Weed Rap

The neighbors told authorities that the defendant was acting strange. The man said he had a large jar of mercury in his house which he and his family had been handling for years. Cops and paramedics bundled him off to the hospital for a rinsing and examination.

A firefighter went into the defendant’s house, with a police officer, to see what the story was with the mercury. They found only traces of mercury, but did find some pot plants behind a blanket hung in the laundry room.

The Arizona Supreme Court held that the weed could not be used as evidence because the officer did not have a search warrant. The court said there was no emergency, no hot pursuit, and that possession of mercury was not illegal. The court also refused to extend the “community caretaking” exception, which has been applied to automobiles, to a private residence.

State v. Wilson (June 3, 2015)

On Call and On the Hook

A  physician assistant stitched up a child’s face in the emergency department after a dog bite.  Dissatisfied with the result, the family sued the hospital and the on-call plastic surgeon. The surgeon was allegedly across the water at the Fire Island beach community at the time of treatment.

The plastic surgeon moved to dismiss on the grounds that he never provided any professional services, and therefore had no duty to the child. The Appellate Division, Second Department, thought otherwise, noting that the surgeon “allegedly made a medical determination” that his services were not required.  Motion to dismiss denied; discovery will proceed.

Juliano v. Southside (June 2, 2015).