LONG ISLAND CLM FALL 2015 PRESENTATION

COMMERCIAL MOTOR VEHICLE: COMMON BUS FATALITY ISSUES

 

TIMED OUTLINE

 

This event consists of a presentation.  The presentation is fully described and contains a timed outline.  The total educational session will be 50 minutes.

 

 

Course Objective: To educate claims, risk management and legal professionals with regard to frequent issues presented in Commercial Motor Vehicle Fatality cases.  

 

Collisions between buses and other motor vehicles or pedestrians, are frequently deadly. With customary seven figure policy limits the stakes are high. Effective management of these kinds of cases requires a thorough understanding of the procedural and fact sensitive issues that are repeatedly confronted. This kind of an understanding lends itself to better practices in all motor vehicle litigation, and in all cases involving death or grave injury.

 

This presentation considers ten of the most recently reported decisions involving bus accident fatalities Each case has been chosen for addressing one or two main issues which frequently present themselves repeatedly to the professionals working in this field.

 

The cases are broken down into sections which provide a factual background, the key holding of the decision, the results of the decision, in addition, additional authority on the same issues is included at the case discussions end. A handout consisting of a detailed discussion of each of the cases and the issues they control will be provided

 

Course Relevance:  Many of the most complicated and high exposure losses that insurers and their insureds confront arise from Commercial Motor Vehicle Fatality case.  This seminar will provide insight and instruction from experienced Litigation Attorneys  and Claim Handlers with the goal of providing the attendees practical advice on understanding the issues commonly and frequently confronted in these cases, and how successfully resolve their management or litigation.  

 

Target audience: Adjusters, Claims and Risk Managers and Attorneys including newly admitted attorneys

 

Course/Seminar Length:  50 minutes It is intended that this Course will provide One Hour in Ethical Credit.

 

Study Method:  Seminar

 

Presenters: Diane Messerschmidt Lancer Insurance Company

                  Paul Devine Goldberg Segalia

 


The headlined issues, each to be addressed for Five Minutes, are these:

 

1.  JOINT VENTURE

2. DEFAULT REQUIRES PROOF OF CULPABILITY

3. PEDESTRIAN IN CROSSWALK, QUANTUM OF PROOF

4. DART OUT OR NO? MORE THAN ONE PROXIMATE CAUSE POSSIBLE

5. DECEDENT IN CROSS WALK ESTABLISHED RIGHT TO JUDGEMENT

6. EXPERT TESTIMONY, UNAVOIDABLE LOSS, EMERGENCY CHARGE.

7. DANGEROUS BACKING, CONSCIOUS PAIN AND SUFFERING AWARD

8. CHOICE OF LAW ANALYSIS IN CROSS-BORDER ACCIDENT

9. ADMINISTRATIVE DMV DECISIONS

10. DUTY TO ALLOW A PASSENGER TO SAFELY DISEMBARK.

 

1.   JOINT VENTURE CASSELL vs. COUNTY OF WESTCHESTER,122 A.D. 3d 788 (A.D.       2nd Dept 2014) (5 Minutes)

 

A. FACTS:

i The bus allegedly was owned by one defendant

ii Decedent had purchased her bus ticket online ticket vendor.

B. KEY HOLDING:

i Elements of a joint venture are

ii. agreement of the parties manifesting their

iii intent to associate as joint venturers,

iv. mutual contributions to the joint undertaking,

v. some degree of joint control over the enterprise,

vi. mechanism for the sharing of profits and losses

C. RESULT :

i. complaint adequately alleged the elements of a joint venture

D. OTHER AUTHORITY:

i.Commander Terms. Holdings, LLC v. Poznanski,  923 N.Y.S.2d 190).

ii. Ackerman v. Landes, 493 N.Y.S.2d 59).

 

 

 

2. DEFAULT REQUIRES PROOF OF CULPABILITY WILLIAMS v MTA BUS COMPANY 44 Misc. 3d 673 (Sup. N.Y. 2014) (5 Minutes)

 

A. FACTS:

i. Plaintiff is legally blind, default judgment against MTA Bus Company was denied.

 

B. KEY HOLDING:

i “[s]ome proof of liability is also required to satisfy the court as to the prima facie validity

ii. only to some firsthand confirmation of the facts.”

 

C. RESULTS:

i. plaintiff did not submit an affidavit of merit as to confirm the allegations that the MTA Bus  ii. plaintiff presented differing accounts of the incident.

 

D. OTHER AUTHORITY

i. Joosten v. Gale, 129 A.D.2d 531, 535, 514 N.Y.S.2d 729 [1st Dept.1987] 

ii. Feffer v. Malpeso, 210 A.D.2d 60, 619 N.Y.S.2d 46 [1st Dept.1994].)

 

           

3. PEDESTRIAN IN CROSSWALK AND QUANTUM OF PROOF GONZALEZ, v. LORISSA BUS SERVICE, INC., 94 A.D.3d 947 (A.D. 2nd Dept 2012). (5 Minutes)

 

A. FACTS:

i Decedent within a crosswalk at an intersection with a traffic light in her favor

ii. Operator testified before making a left turn and that he did not see Plaintiff.

 

B.  KEY HOLDING:

i.  The plaintiff failed to establish, prima facie, that

ii Diaz was already in the crosswalk

iii. Plaintiff was not comparatively at fault in the happening of the accident 

 

C. RESULT:

i. Plaintiff's motion for summary judgment denied.

 

D. OTHER AUTHORITY:

i. Rules of the City of N.Y. Dept of Transportation [34 RCNY] § 4–04[b][2]

ii. Seong Yim Kim v. New York City Tr. Auth., 928 N.Y.S.2d 315;

iii. Kaminsky v. M.T.A. N.Y. City Tr. Auth., 911 N.Y.S.2d 698).

 

 

4. DART OUT OR NO? MORE THAN ONE PROXIMATE CAUSE POSSIBLE JAHANGIR, v. LOGAN BUS CO., INC., 89 A.D.3d 1064 (A.D. 2nd Dept 2011) (5 Minutes)

 

A. FACTS:

i. Defendants' provided sufficient evidence that the  decedent darted out

ii. And defendant driver unable to avoid contact with the decedent.

iii. But Plaintiff raised a triable issue of fact.

iv. Affidavit did not constitute an attempt to create a feigned issue of fact 

v. At most, provided more detail

 

B. KEY HOLDING:

i. There can be more than one proximate cause of an accident

 

C. RESULT:

i. issue of fact exists as to whether there was a statutory violation or proximate cause of the accident.

 

 

 

D. OTHER AUTHORITY

i.Afghani v. Metropolitan Suburban Bus Auth., 845 N.Y.S.2d 131

ii.Ledbetter v. Johnson, 810 N.Y.S.2d 914

iii.Mancia v. Metropolitan Tr. Auth. Long Is. Bus, 790 N.Y.S.2d 31

iv.Sheppeard v. Murci, 761 N.Y.S.2d 244

v.Cox v. Weil, 927 N.Y.S.2d 607

vi.Wilson v. Rosedom, 919 N.Y.S.2d 59.

 

5. DECEDENT IN CROSS WALK ESTABLISHED RIGHT TO JUDGEMENT SHENKERMAN, v. C. GOYCOECHEA, 34 Misc.3d 496 (Sup Kings 2011) (5 Mintues)

 

A. FACTS:

i Elderly decedent killed in Crosswalk, allegedly blind

ii Plaintiff SJM against caretakers failed did not describe the source or nature of duty owed

iii against the Bus Driver defendant, Police Accident Report (see CPLR 4518[c]

iv Affidavits of two non-party witnesses to the accident,

 

B. KEY HOLDING:

i Plaintiff establishes prima facie that defendant driver was negligent,

ii By statute and City regulation, Decedent  was given the right of way

 

C. RESULTS: SJM granted in favor of Plaintiff.

 

D. OTHER AUTHORITY:

i Vehicle and Traffic Law §§ 1111[a], 1112[a], 1642 [a];

ii Rules of the City of New York, 34 RCNY §§ 4–02[e], 4–03[a], 4–03[c].)

 

6. EXPERT TESTIMONY PERMITS CONCLUSION OF UNAVOIDABLE ACCIDENT, ALLOWS FOR EMERGENCY CHARGE. LONG vs. NIAGARA FRONTIER 81 A.D.3d 1391 (A.D. 4th Dept 2011) (5 Minutes)

 

A. FACTS:

i. Decedent killed crossing street.

ii. Plaintiff at trial Defendant was speeding, in violation of Vehicle and Traffic Law § 1180

iii. he failed to sound his horn in violation of Vehicle and Traffic Law § 1146.

iv. But the only testimony on speed  was from Defendants accident reconstructionist

v. Question of whether expert contradicted self

vi. Credible with his testimony that the Decedent was in the street only 1.5 seconds

vii  Under these circumstances The Court also gave the jury an "emergency charge".

 

B.  KEY HOLDING:

i. The expert's testimony merely created an issue of fact for the jury to resolve

ii. Driver admittedly did not sound the horn on the bus until he saw decedent BUT

iii defendants' expert testified that decedent was in the street for only 1.5 seconds before impact. iv. iv decedent was not in a crosswalk

v. Drive testified  he had his eyes on the road and the oncoming traffic,

vi. jury's determination Driver was not negligent is supported by fair interpretation of the evidence. vii. Emergency Charge was warranted,

 

C. RESULTS: Jury's verdict in favor of the Bus Driver affirmed.

 

D. OTHER AUTHORITY:

i. Rivera v. New York City Tr. Auth., 77 N.Y.2d 322,

ii. Feaster v. New York City Tr. Auth., 568 N.Y.S.2d 380).

iii. Lifson v. City of Syracuse [Appeal No. 2], 900 N.Y.S.2d 568).

 

 

7.   90 MINUTS SUFFERING BECAUSE OF FAILURE TO USE "SPOTTERS" WHILE BACKING SUPPORTS 1.2 MILLION CONSCIOUS PAIN AND SUFFERING AWARD DOWD v NEW YORK CITY TRANSIT AUTHORITY 78 A.D.3d 884 (A.D. 2nd Dept 2010) (5 Minutes).

 

A. FACTS

i. A bus operator cannot see directly behind the bus, as there is a “blind spot.”

ii.  “spotters,” would assist the buses in reversing out of the terminal.

iii. Reversing slowly with the reverse alarm sounding, but with no one to help

iv. bus ran over the decedent on the sidewalk

v. The decedent was still conscious and complaining of pain when paramedics arrived

vi. cardiac arrest upon her arrival at the hospital at 6:38 A.M.

vii. revived into cardiac arrest a second time, and was pronounced dead at 7:50 A.M.

 

B. KEY HOLDING

i. the jury verdict finding the defendants 100% at fault in the happening of the accident was not contrary to the weight of the evidence.

ii.  1.7 million for 90 minutes conscious pain and suffering was excessive.

 

C. RESULTS

i Jury's verdict finding the bus 100 per cent liable affirmed. 1.7 reduced to 1.2 million.

 

D. OTHER AUTHORITY

LIABILITY:

i. Vehicle and Traffic Law §§ 1211, 1151–a, 1151 [b]

ii. 34 RCNY 4–04[d]; 4–10[h]

iii. Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).

 

DAMAGES:

i. CPLR 5501 [c];

ii. Perez v. St. Vincents Hosp. & Med. Ctr. of N.Y., 886 N.Y.S.2d 486

iii. Twersky v. Busche,  830 N.Y.S.2d 725

iv. Ramos v. La Montana Moving & Stor., 669 N.Y.S.2d 529.

 

 

 

 

 

8. CHOICE OF LAW ANALYSIS IN CROSS BORDER ACCIDENTBUTLER vs STAGECOACH GROUP PLC 72 A.D.3d 1581 (A.D. 4th Dept. 2010) (5 Mintues)

 

A. FACTS

i Collision - tractor-trailer parked on shoulder with chartered women's hockey team from Ontario, ii. Plaintiffs attempt to pierce the corporate veil

iii. Apply New  York Law regarding damages

 

 

B. KEY HOLDINGS:

CORPORATE VEIL:

i. The trip was arranged by the bus defendants , without participation by  parent corp.

 

DAMAGES

i. court properly applied a conflict of laws analysis

ii. preferred analytical tool in tort cases is to apply interest analysis

iii. law of the jurisdiction having the greatest interest in the litigation will be applied and

iv. Controlled by Court of Appeals in Neumeier v. Kuehner, 31 N.Y.2d 121

vi  if the parties to the lawsuit share a common domicile, law of their domicile applies

vii Where, domiciled in different jurisdictions, law of the site of the tort shall apply

viii Ontario law does violates the public policy of New York

ix. “resort to the public policy exception -  reserved for those foreign laws that are truly obnoxious; x. Plaintiffs traveled to New York for a brief time for recreational purposes

xi. Such limited contact is not sufficient to implicate the public policy of New York

 

C. RESULTS:

i. Law of Ontario applied to Damages issue between bus and bus passengers.

ii. Corporate Veil not pierced.

 

D. OTHER AUTHORITY:

CORPORATE VEIL

i. Matter of Morris v. New York State Dept. of Taxation & Fin., , 603 N.Y.S.2d 807,

ii.cHallock v. State of New York, 64 N.Y.2d 224

 

E. CHOICE OF LAW

i. Neumeier v. Kuehner, 31 N.Y.2d 121

ii. Cooney v. Osgood Mach., 81 N.Y.2d 66

iii. Schultz v. Boy Scouts of Am., 65 N.Y.2d 189

 

 

 

 

 

 

9. ADMINISTRATIVE DMV DECISION NOT DISPOSITIVE PARKES vs AHMAD 23 Misc.3d 1120(A) (Sup Kings 2009) (5 Minutes)

 

A. FACTS:

i. A DMV hearing to “investigate a fatal accident"

ii. Driver attended a part of the hearing without counsel.

iii. Disposition that Driver “failed to obey the red traffic signal"

iv. Decedent argued collateral estoppel is applicable to quasi judicial determinations

 

B. KEY HOLDINGS:

i.  specific factors to be considered

ii. nature of the forum and the importance of the claim in the prior litigation

iii incentive and initiative to litigate and the actual extent of litigation

iv. the competence and expertise of counsel,

vi the availability of new evidence

vii. the difference in the applicable law and the foreseeabililty of future litigation.

 

 

C. RESULTS

i. review of the transcript makes clear Driver not given a full and fair opportunity” to contest

ii. arrived late at the hearing because he took the wrong train.

iii. He was not advised of his right to counsel

iv. He was not present for the testimony of other witnesses and thus had no opportunity to cross

v The DMV's findings are not dispositive of the issues in these actions.

 

D. OTHER AUTHORITY

i. Ryan v. N.Y. Telephone Co, 62 N.Y.2d 494 [1984]

ii. People v. Plevy, 52 N.Y.2d 58, 65

iii. Fratangelo v. Benson, 294 A.D.2d 88 [4th Dept 2002]

iv. Martin v.Zoslasky,172 Misc. 846 [Kings County 1997]

 

 

10. DUTY TO ALLOW A PASSENGER TO SAFELY DISEMBARK.LOCKHART vs. ADIRONDACK TRANSIT LINES 289 A.D.2d 686 (A.D. 3rd Dept 2001) (5 Minutes)

 

A. FACTS

i. Bus companies contend that this obligation was fulfilled

ii. Contend decedent's conduct was an intervening and superceding cause of the accident

 

B. KEY HOLDING

i. poor lighting conditions in the commercial area where she was discharged

ii. decedent's dark attire and burdensome load

iii.  not dropped off at a crosswalk, intersection, bus stop or bus terminal

iv. create a question of fact  whether provided with a reasonably safe place to alight Street thereby v. forcing them to cross the road to access the bus terminal was an accident waiting to happen.

 

 

C. RESULTS

Summary Judgment for Bus Companies denied.

 

D. OTHER AUTHORITY

i. Miller v. Fernan, 73 N.Y.2d 844

ii. Gross v. New York City Tr. Auth. 681 N.Y.S.2d 513;

iii. Eisen v. City of New York, 679 N.Y.S.2d 297;

iv. Connolly v. Capital Dist. Transp. Auth.,  599 N.Y.S.2d 731;

v. cf., Russell v. Niagara Frontier Transp. Auth., 651 N.Y.S.2d 814;

vi. Matter of Eisenberg v. Village of Mamaroneck, 525 N.Y.S.2d 280

vii. Mooney v. Niagara Frontier Tr. Metro Sys., 510 N.Y.S.2d 393).