Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

In Heslin v. County of Greene, 2010 N.Y. Slip Op. 01010 (Feb. 11, 2010), the Court of Appeals determined that the special infancy toll applicable in wrongful death actions involving sole infant distributees is not available for personal injury claims.  The Court drew a distinction between this case and the holding in Hernandez v. New York City Health & Hosps. Corp., 78 N.Y.2d 687 (1991), which allowed the infancy toll to be applied to save the late wrongful death claim.  The Court qualified that a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act. The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries. In comparison, a personal injury action on behalf of the deceased under EPTL 11-3.2(b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate.  Such a claim is personal to the deceased and belongs to the estate, not the distributees.

Accordingly, in Heslin, the infancy of a deceased child’s sole distributees did not toll the limitations period applicable to personal injury claims brought by the personal representative of the child’s estate against county defendants who allegedly contributed to the child’s death at the hands of her mother’s boyfriend. As a result, the action was time-barred, although the personal representative was not appointed until after the statute of limitations had expired.

            The “firefighter rule� bars police officers and firefighters from recovery in “common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment.�  Zanghi v. Niagara Frontier Transp. Comn., 85 N.Y.2d 423, 436 (1995). 

In Wadler v. City of New York, et al., 2010 Slip Op. 01373 (Feb. 18, 2010), plaintiff police officer was injured as he was entering his place of work at the New York City Police Headquarters in Manhattan.  The parking lot to this facility is protected by an unusual kind of gate, designed to thwart car bombs and similar acts of terrorism.  The gate can be retracted into the ground to allow entry to the lot, but, if necessary, the gate can be raised automatically to stop an entering vehicle, with enough force to lift a car off the ground.  In the Wadler case, the gate worked as it was designed to do.  The driver of the car, however, was not a terrorist but plaintiff police officer.  Plaintiff showed his credentials and was allowed access into the lot.  The barrier was lower but then, it was accidentally raised again while plaintiff was driving over it, causing plaintiff injury. 

The Court, in affirming the dismissal of this action, determined that the cause of the injury to plaintiff was plainly a risk “associated with the particular dangers inherent� in police work. 

In Tracy v. Tray, 2010 Slip Op. 00452 (3d Dept. Jan 21, 2010), plaintiff failed to satisfy the permanent loss of use category of Insurance Law § 5102(d).  Under this provision, a plaintiff must establish that the loss of use is total.   To meet this burden, “the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system.â€�

In an attempt to satisfy her burden, plaintiff proffered the affidavit of her treating physician, Dr. Bennett. Bennett did not, however, opine that plaintiff’s loss of use was total, but instead concluded only that she “has a permanent moderate loss of use of her lumbar spine.â€�   In his affidavit, Bennett opined that the force of the accident caused plaintiff’s preexisting degenerative disease of the lumbar spine to become symptomatic, requiring surgery and leaving plaintiff with a permanent moderate loss of function of the lumbar spine. Bennett did not explain how the accident aggravated plaintiff’s condition nor did he set forth any qualitative or quantitative evidence of a limitation in plaintiff’s range of motion.

Inasmuch as plaintiff failed to submit any objective evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury pursuant to Insurance Law § 5102(d), the court concluded that the complaint was properly dismissed.

The United States Department of Transportation announced on January 26, 2010 that it is prohibiting truck and bus drivers from sending text messages on hand-held devices while operating commercial vehicles weighing over 10,000 pounds.  The prohibition is effective immediately and is the latest in a series of actions taken by the Department to combat distracted driving since the September 2009 Distracted Driving Summit.

Interstate truck and bus drivers who text while driving may be subject to civil or criminal penalties of up to $2,750.  For further information, please visit www.dot.gov.