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W 
INTER 
T 
ORTS 
 
S
TORM
I
N
P
ROGRESS
 E
XCUSES
F
AILURE
 
TO
 C
LEAR
I
CE
 
AND
 S
NOW
 
A slip and fall musthave occurred due to ice or snow that was present andnoticeable long enough for the defendant to havecleaned it up.The sources of evidenceto prove how long the icyconditions existed are lim-ited. First is the plaintiff.Second are any witnesseswho were there at the timeof the fall. Third are wit-nesses who were there be-fore the fall, such as main-tenance personnel. Fourthare post fall witnesses, likeambulance attendants.Fifth are public recordsestablishing weather condi-tions. The Department of Transportation keeps log books in which theyrecord weather androad conditions, usu-ally on an hourly basis. A meteorolo-gist also has accessto such weather re-cords.Once a defendant puts forth prima fa-cie evidence thatthere was a storm in progress at the timeof the fall, the bur-den shifts to the plaintiff to rebut that evi-dence, or raise a triable is-sue of fact as to whether the slip was the product of a climatic condition prior to the storm.
Cohen v. A.R. Fuel, Inc., 2002 N.Y. App. Div. LEXIS 31 (3d Dep'tJan. 2002).
O
NGOING
 
OR
R
ECUR-RING
D
ANGEROUS
 C
ONDITION
 
Evidence of an ongoingand recurring dangerouscondition in the area of theslip and fall, which wasroutinely left unaddressed by the owners, may defeata motion for summary judgment on noticegrounds.
Schneider v. 17 Battery Place N.Assocs. II, 2001 N.Y. App. Div.LEXIS 12754 (1st Dep’t Dec.2001).
(Continued on page 2)
Volume 1, Issue 1
Liability Developments
 January 200
4
 
Special points of in-terest:
•
Winter Torts
•
 Storm In Progress
•
 Recurring Condition
•
Black Ice and Snow
•
Sking Accidents
•
Landlord Getting Off ThoughNegligent
•
Police Responding to 911 Call
•
Sports
•
Camps for Kids
•
Enhancing Risk of Play
•
Highway Design
•
Summary Judgment in Rear EndCases
•
IME as Missing Witness
•
Excluding BAC Results
•
Restoring An Action
•
 
Liability Developments 1Evidence Developments 1Civil Procedure Develop-ments2Workers CompensationDevelopments3Venue 4
Inside this issue:
New York Law Digest
g{x WâÜáà _tã Y|ÜÅ? cAVA
Evidence
M
ISSING
W
ITNESS
 C
HARGE
 
A party is entitled to amissing witness chargeonly where an uncalledwitness bearing informa-tion on a material issuewould be expected to pro-vide noncumulative testi-mony favorable to the op- posing party and is under the control of and availableto that party.Failure of a defendant tocall the physician who ex-amined the plaintiff on de-fendant's behalf requires amissing witness charge,unless the defendant ex- plains during the trial whythe witness wasn't called.
Placakis v. City of New York,2001 N.Y. App. Div. LEXIS13019 (2d Dep't Dec. 2001).
E
VIDENCE
 
OF
B
LOOD
 A
LCOHOL
L
EVEL
 
Expert evidence regard-ing the plaintiff's bloodJohn E. Durst, Jr., Editor-In-Chief 
 
 
Shea v. New York City Transit Auth., 2001 N.Y. App. Div. LEXIS 13032 (2d Dep't Dec.2001).
(Continued from page 1)
alcohol content ("BAC") at the timeof the accident is inadmissible in theabsence of proof as to when the BACmeasurement was taken. There must be a basis for the expert's "relation back" testimony. Absent evidence of when the blood test was taken, anyconclusion as to the plaintiff's BAClevel at the time of the occurrencewould be purely speculative.
“Absent evidence of whenthe blood test was taken,any conclusion as to the plaintiff's BAC level at thetime of the occurrence would be purely speculative.”
 
(Continued from page 1)
B
LACK
I
CE
 
AND
S
NOWY
 F
ORECAST
N
OT
E
NOUGH
 
TO
 S
HOW
C
ONSTRUCTIVE
N
OTICE
 
A plaintiff who fell on “black ice”in a defendant’s driveway did not es-tablish notice by provingthe defendant knewearly in the morning thatit was snowing and that plaintiff would be visit-ing her later in the day.A general awarenessthat snow or ice mightaccumulate is not suffi-cient, standing alone, toconstitute notice of a particular condition.
Smith v. David M. Smith, 2001 N.Y. App. Div.LEXIS 12625 (3d Dep’t Dec. 2001).
S
KING
A
CCIDENTS
 
The degree that a voluntary partici- pant in an athletic game can sue fel-low participants or thegame sponsor or site owner is a constant source of liti-gation in New York.The general rule is thateach participant consents tothe risk of injuries that are'known, apparent or rea-sonably foreseeable conse-quences of the participationin such events." You don'tassume the risks of reckless or inten-tional conduct or concealed or unrea-sonably increased risks.Whether the operator of a ski liftshould have shut down the lift when askier fell getting off onto the unloadramp was held to be a question of fact.Another skier was injured getting off the lift and running into the fallenskier. A motion for summary judg-ment was held properly denied.
Morgan v. Ski Roundtop, Inc., 2002 N.Y. App.Div. LEXIS 2 (3d Dep't 2002).
(Continued on page 3)
tional basis upon which the jury could find that the injured plaintiff was supervised andcontrolled by his employer onthe date of the accident.
Pugliese v. Paneorama Italian BakeryCorp., 2001 N.Y. App. Div. LEXIS13012 (2d Dep't Dec. 2001).
 
C
OMMON
L
AW
I
NDEMNIFI-CATION
 
Building owners and generalcontractors may include an in-demnification clause in any sub-contract. But even without acontract, common law indemnifi-cation exists where there is a ra-
Evidence
Liability Developments
Labor Law
PAGE 2 NEW YORK LAW DIGEST VOLUME
1,
ISSUE
1
 
(Continued from page 2)
L
ANDOWNERS
M
AY
N
OT
B
E
 L
IABLE
, E
VEN
T
HOUGH
N
EGLI-GENT
 
General Obliga-tions Law §9-103  provides that own-ers, lessees and oc-cupiers of land areshielded from li-ability for injuriesresulting from ordi-nary negligencewhen such injuriesoccur from use of the property for anyof the 18 enumer-ated recreational activities. The ac-tivities are hunting, fishing, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding,speleological activities, horseback riding, bicycle riding, hand gliding,motorized vehicleoperation for rec-reational purposes,snowmobile opera-tion, cutting or gathering of woodfor non-commercial purposes or trainingof dogs.
White v. City of Troy,2002 N.Y. App. Div.LEXIS 26 (3d Dep’t2002).
D
EFECTIVE
S
IDEWALK
 
IN
 F
RONT
 
OF
S
TORE
 
In the absence of an obligation cre-ated by statute or ordinance, an abut-ting landowner will not be liable to a pedestrian on a public sidewalk for injuries suffered as a result of a side-walk defect unless the landowner cre-ated the defective condition or causedthe defect to occur because of somespecial use of the sidewalk.A driveway is not a special usemaking a store owner liable for a de-fect in an abutting sidewalk, unlessthe driveway caused or contributed to
(Continued on page 4)
than one year after it was marked off,it is necessary to make sucha showing.
D'Ecclesiis v. Manna, 2001 N.Y.App. Div. LEXIS 13026 (2d Dep'tDec. 2001).
E
XCUSING
F
AILURE
 
TO
 H
ONOR
N
INETY
D
AY
 N
OTICE
 R
ESTORING
A
CTION
 
A plaintiff may restore anaction within one year of it be-ing "marked off" without dem-onstrating a reasonable excuse,a meritorious action, a lack of intent to abandon, and a lack of  prejudice to the defendants.To restore an action moreThe Court should excuse failure tocomply with a ninety day notice, wherethe failure was due to law office failure,and the affidavit of merit sufficientlyestablishes a meritorious cause of ac-tion.
Reyes v. Ross, 2001 N.Y. App. Div
.
LEXIS
13056 (2d Dep't Dec. 2001)
 Workers Compensation Developments
Liability Developments
Civil Procedure
ant formally file a claim within the 2year statute of limitations.The C-4 must only contain enoughfacts of the injury andfrom which it might be reasonably in-ferred that a claim for compensation was being made'.
 
McCutcheon v. PublicService Department, 2002 N.Y. App. Div. LEXIS 84 (3d Dep’t 2002).
C4 F
ILED
 
BY
D
R
. F
ILES
C
LAIM
 
Filing of the C-4 medical report byclaimant's treating physician consti-tutes the filing of a claim within themeaning of Workers' CompensationLaw §28.The form filed by the doctor notonly commences a claim for medicalexpenses, but also for lost wage bene-fits. It is not necessary that the claim-
“The filing by a doctor of a C-4for medical payment satisfiesthe workers compensation two year Statute of Limitations” 
PAGE 3NEW YORK LAW DIGESTVOLUME
1,
ISSUE
1
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