Sutton, LLP Blog

In New York State, the law regarding whether a person injured by a domestic animal can recover damages from the animal’s owner is relatively settled: Courts impose strict liability on the animal’s owner if the victim can prove that the animal had a “vicious propensity”, and that the animal’s owner was aware of such propensity. Vicious propensity means any behavior that "reflects a proclivity to act in a way that puts others at risk of harm." Bard v. Jahnke, 6 NY3d 592, 597 (2006).

In the New York City area, for example, dog bites are the most common type of injury due to animals. A dog-bite victim must prove that the dog had the dangerous tendency to bite people, and that the dog owner knew it. There are various forms of evidence that can be used to show that the dog had such a dangerous tendency, the easiest being if the dog had previously bit someone else (also known as the “one-bite rule”).

In summary, generally New York permits recovery by a victim only if the animal exhibited aggressive or threatening behavior and the animal owner was aware of it. However, recently, the Court of Appeals, New York’s highest court, had to decide a matter involving an animal, but with a different set of facts.

In Hastings v. Suave, the victim was injured when the van she was driving hit a cow on a public road. The cow was kept on a farm, and there was evidence that the fence separating the farm property from the road was overgrown and in bad repair. While the lower courts had dismissed the victim’s case based on the law that the cow did not have a vicious propensity, the Court of Appeals reversed such decision, holding that that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal is negligently allowed to stray from the property on which the animal is kept.

While you may not encounter many cows or other farm animals during in your neighborhood, if you are injured in any way in an incident involving an animal, make sure you speak with the attorneys at Sutton, LLP so that you are clear on your rights.

Sure they motivate you to workout harder and better, but did you ever wonder what your gym's obligations are if you suffer a severe medical condition while at the gym?  

Some background: Section 627-a(1) of New York State's General Business Law states: 

In Miglino v. Bally Total Fitness of Greater New York, Inc., decided on February 7, 2013, the gym in question had a membership of more than 500 people, maintained on the premises an Automatic External Defibrillator (AED) and had an individual trained to operate it.  So what happened?

The plaintiff's father collapsed near the club's racquetball courts and the gym’s trained individual ran to his aid.  The individual detected some pulse and said that he was not trained to use the AED in that situation.  Instead, he opted to await better qualified medical personnel.  When ambulance personnel finally arrived, they administered shocks to the father with an AED, but it was too late and the father never revived. 

While it may seem clear that the gym breached its duty under the above law, the Court of Appeals says not so.  According to the Court, even though they must have an AED and an individual who knows how to use them, health clubs in the state of New York do not have a legal obligation to use the AED on members experiencing cardiac arrest or other heart complications. 

All hope is not lost.  Under New York’s Good Samaritan Law, a person injured or killed due to the gym’s gross negligence in using or failing to use an AED may still be able to pursue a claim under the common law. 

If you have been injured while at a gym, contact Sutton, LLP right away so that their experienced lawyers can assess your potential claim. 

This past September, Lindsay Lohan was accused of clipping a pedestrian while driving outside a New York nightclub and then fleeing the scene.  Minor accidents such as this are common in New York, and it is important to know how to deal with your insurance company when making a claim.

In yet another attempt by a defendant to obtain access to a personal injury plaintiff’s Facebook and other social media accounts, another appellate court decision denying such access.  

This one comes out of New York’s Appellate Division (4th Department).  Kregg v. Maldonado, decided on September 28, 2012,  deals with a motorcycle accident and a suit against Suzuki. As per the court:

The Suzuki defendants moved, inter alia, to compel the disclosure of the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party. Plaintiff objected to such disclosure on the grounds of relevance and burden, contending that the demand for disclosure was a “fishing expedition.” Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure. That was error.

The authority the appellate court cited to was McAnn v. Harleysville, also a 4th Department case. Missing from the defendant’s demand, and the heart of the McAnn ruling, was that there had to be some “factual predicate with respect to the relevancy of the evidence.”

But there wasn’t.  The defendants were, in essence, on a simple fishing expedition hoping that something would come up that might contradict the plaintiff’s testimony in some way. But that is not a sufficient reason under the law to demand access to private materials.

The court ruled that:

As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.

Despite this recent ruling, plaintiff's should continue to expect to see continued attempts by defendants to pry into social medial accounts marked private, and attempts to create “factual predicates” upon which to make such demands.