Every year the Court of Appeals has the opportunity to grapple with issues in the area of negligence. This Article discusses several of the Court's most significant 1997 decisions, along with the underlying policy considerations. Decisions in the areas of medical malpractice and Labor Law claims are examined, as well as issues involving indemnification and contribution and the ever-complex CPLR Article 50-A/B. It is hoped that any discernible trends may, to some extent, foreshadow the Court's decisions in 1998.

In Coopersmith v. Gold, 85 N.Y.2d 957, 655 N.Y.S.2d 857, the plaintiff alleged that her psychiatrist improperly engaged in a sexual relationship with her during the course of her treatment. The Court held that evidence of prior similar acts with other patients would be inadmissible to prove that the defendant engaged in the same negligent conduct with the plaintiff. Four former patients of the defendant-psychiatrist claimed to have been sexually involved with the psychiatrist. They were prepared to testify about the particular sexual habits of the defendant psychiatrist who would remain partially clothed while engaging in sex. This was intended to explain why the plaintiff was unaware of a surgical scar which the defendant demonstrated to the jury. Since this was a collateral issue, and since such evidence might tend to prejudice the jury based upon prior similar acts, the plaintiff was precluded from introducing such testimony.

In two cases the Court discussed the competency and probative value of expert medical evidence. In Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d. 589, a forensic pathologist's affidavit was offered as proof that the deceased driver of the vehicle that struck plaintiff's car was "visibly intoxicated" when she left the defendant's premises, for purposes of establishing liability under the Dram Shop Act. Based solely upon the intoxicated tortfeasor's blood and urine alcohol counts, the expert opined that she would have exhibited signs of "visible intoxication," such as glassy eyes and motor impairment. There was no eyewitness evidence that the decedent had appeared intoxicated. The Court noted that although blood and urine tests are some evidence of an individual's degree of intoxication, the person must necessarily have exhibited the symptoms of intoxication that are familiar to trained bartenders. The expert's affidavit was offered to establish that in view of the blood alcohol level, the decedent must have exhibited such symptoms. The Court held that the expert's affidavit had no probative force since "there was nothing in the expert's affidavit ... from which the validity of its ultimate conclusions about [the decedent's] appearance on the evening of the accident could be inferred." Since the expert's affidavit was the sole evidence offered in opposition to defendant's motion for summary judgment, and the expert could not demonstrate that his conclusions were more than mere speculation, it was insufficient to defeat summary judgment.

Significantly, the Court noted that where the opinion is based on knowledge acquired through personal, professional experience or where it makes reference to outside material "of a kind accepted in the profession as reliable in forming a professional opinion," the expert's affidavit may be sufficiently probative to defeat summary judgment. But here, the expert's professional background was not alone sufficient to lend credence to his opinions which were devoid of any reference to a foundational scientific basis.

In Meyer v. Board of Trustees of New York City Fire Department, 90 N.Y.2d 139, 659 N.Y.S.2d 215, the Court held that a non-examining physician is competent to testify as a medical expert as to the cause of a particular medical condition based upon inspection of the patient's medical records, including x-rays and MRI films. Such opinions could not be rejected solely because they were not based upon direct physical examination of the individual.

In Di Ponzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d, 377, a motor vehicle was left unattended, with the engine running, at a gas station. The car rolled forward and injured the plaintiff. Although the motorist remained a viable defendant, the Court of Appeals dismissed the action as against the gas station owners. The Court considered this to be an "unforeseeable occurrence," and concluded that the defendant-filling station owner had no duty to protect its customers from such an occurrence.

Critical here was the distinction which the law draws between "remote possibilities" and risks which are "reasonably foreseeable." The Court noted that "no person can be expected to guard against harm from events which are so unlikely to occur that the risk would commonly be disregarded." Significantly, there must be a relationship between the risk which the negligence allows and the particular foreseeable hazard which injured the plaintiff. Here the complaint alleged that the gas station owners were negligent in failing to monitor their customers' conduct, and that the customers should have been told to turn off their engines during the operation of the gas pumps. The Court noted that when a vehicle's engine is left running in an area where gasoline is being pumped, there is a natural and foreseeable risk of fire or explosion because of the highly flammable properties of the fuel. But the plaintiff's injuries "did not arise from the occurrence of any of the foreseeable hazards that the duty would exist to prevent." Hence, the Court concluded that "the accident was, at most, a remote possibility at the time the conduct in question occurred and thus was not a foreseeable consequence of the attendant's inaction. The Court was therefore able to conclude, as a matter of law, that the defendant-gasoline station owner had no cognizable legal duty to protect against the injury-producing occurrence and plaintiff's cause of action based on the owner's negligence was properly dismissed. It is clear that the foreseeability of the risk is essential to a fault-based negligence cause of action, and that a person will be deemed at fault only when the injury producing occurrence is one that could have been anticipated.

The Court understood that "the common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss, and that the duty of a landowner or other tort defendant "is not limitless." The Court also noted that the duty of an alleged tortfeasor is at first a "legal question for determination by the Court."

By contrast, in Bell v. The Board of Education of the City of New York, 1997 WL 638 448, the Court held that the occurrence which caused injury to the plaintiff was not unforeseeable and did not absolve the defendant of liability.

Plaintiff was a 6th grade student whose class attended a drug awareness fair at a park near the school. The fair was sponsored by the defendant Board of Education and the Police Department, and several teachers and aides supervised the students. The plaintiff was permitted to leave the park, with friends, for lunch at a nearby pizzeria. After lunch the students were to return to school but the teacher discovered that plaintiff was missing. The class left the park without the plaintiff. Plaintiff's teacher stopped at her house before returning to school and told plaintiff's mother of the child's disappearance. Plaintiff returned to the park late and could not find her class. Shortly thereafter, she was accosted by three boys a block away from the park. They took her to one of the boys' houses where they raped and sodomized her for 22 hours. Two of the boys were arrested later that day and each pleaded guilty to first degree rape.

Although the Appellate Division held that as a matter of law the rape was an unforeseeable superseding event absolving defendant of liability, the Court of Appeals disagreed. The Court noted that the intervening act of rape was not unforeseeable and that a rational jury could have determined, as the jury in this case did, that "the foreseeable result of the danger created by defendant's alleged lack of supervision was injury such as occurred." The Court noted that it was reasonable for a jury to find that "the very purpose of the school supervision was to shield vulnerable school children from such acts of violence." Thus, where the harm, in this case the intentional act of another, is foreseeable from defendant's negligent act or omission, then the defendant will not be relieved of liability. The Court noted that often where third party criminal acts intervene between defendants' negligence and plaintiffs' injuries, the causal connection may be severed precluding liability. Here, however, the criminal act was found to be a "reasonably foreseeable" consequence of the defendant's lack of supervision.

A plaintiff's assumption of the risk may also relieve a defendant of liability. This past year the Court of Appeals considered together four separate personal injury actions, all involving voluntary sports activities. The issue presented was whether the injured parties assumed inherent risks as part of their particular sports in the circumstances under which the injury occurred. In Morgan v. State of New York, 90 N.Y.2d 471, 662, N.Y.S.2d 421, the Court considered whether there was any assumption of the risk by a bobsled rider, two martial arts students and a tennis player which relieved the defendants of liability for their injuries. Although one of the factors considered by the Court was the experience which the plaintiff had with the sport, the key fact to be determined is whether the plaintiff was a consenting participant who was aware of the inherent risks, having a full appreciation of the nature of those risks as well as whether plaintiff voluntarily assumed such risks. The Court reiterated that a premises owner continues to owe "a duty to exercise care" to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

In three of the four consolidated cases, the owner/operator was relieved of any duty to the plaintiff. The Court clearly articulated that tort rules "support a social policy to 'facilitate free and vigorous participation in athletic activities,'" citing to its earlier decision in Benitez v. New York City Board of Education, 73 N.Y.2d 650, 657. The Court concluded that a plaintiff will be "legally deemed" to have accepted personal responsibility for risks which "commonly inhere in the nature of" the sport. On the other hand, the voluntary participant will not be deemed to have assumed risks of reckless or intentional conduct or circumstances where the defendant has concealed or unreasonably increased the risks. The Court noted that the applicable standard in assessing whether a defendant is liable should include whether the conditions caused by the defendant's negligence are "unique and created a dangerous condition over and above the usual dangers that are inherent in the sport."

The numerous examples provided in the Court's opinion should be quite helpful in ascertaining liability of a potential defendant where there is a sports-related injury.

Although this standard is not often applied in practice, all damages must be proved by plaintiff with "reasonable certainty." This is a greater burden than a mere "preponderance" of the evidence. In Schultz v. Harrison Radiator Division General Motors Corporation, 70 N.Y.2d 311, 660 N.Y.S.2d 685, the Court expanded the application of the "reasonable certainty" standard, noting that "damages for loss of household services should be awarded only for those services which are reasonably certain to be incurred and necessitated by plaintiff's injuries." In Schultz the defendant contended that the plaintiff did not incur any actual expenditures on household services because he "relied on the gratuitous assistance of relatives and friends." The Court noted that while a plaintiff is not required to be dependent on the charity of others, any compensatory damages awarded to the plaintiff must be "truly compensatory."

In Schultz v. Harrison Radiator Division General Motors Corporation, 70 N.Y.2d 311, 660 N.Y.S.2d 685, the high Court answered a question that has been plaguing personal injury cases for several years. CPLR Articles 50-A and B, New York's statutory scheme requiring periodic payments of future damages, require that the trial court add a 4% annual increase to the annuity payments which plaintiff will receive. Since the statute requires the court to add this 4% annual increase, is the jury permitted to hear and consider testimony as to inflation of the various items of damages to be awarded? The Court held that the plaintiff could present expert evidence on inflation at trial, thereby permitting a jury to consider inflation in arriving at any future damages award.

The Court seemed to struggle with the legislative purpose behind the statutory 4% annual increase, which is not articulated in the Statute. It was defendant's contention that a plaintiff would obtain a double recovery, if expert evidence on inflation were permitted at trial, and thereafter the Court was required to add a 4% adjustment to the structured payments portion of the award, pursuant to CPLR 5031(e) and 5041(e). Defendant argued that the 4% increase was meant to be the exclusive adjustment for inflation. Plaintiff argued to the contrary, noting that CPLR 4111(f) requires the jury to award the "full amount of future damages."

The Court turned to the legislative history of the Statute, noting that it was enacted as part of the tort reform movement, and that early versions of the Statute referred to an adjustment to periodic payment awards by an "inflation factor." There were also position statements written by various members of the Bar, which reflected a professional understanding, at that time, that the proposed adjustment was meant to account for inflation. Similarly, the bill jacket on Article 50-B contained material reflecting a contemporaneous understanding of the 4% rate as an inflation adjustment.

The Court noted, however, that although this would seem to support the defendant's contention that the legislature intended the 4% increase to account for inflation, there was "nothing in any of the legislative history which indicated that the 4% rate was intended to be the exclusive measure of inflation or that the fact finder should be prohibited from considering the effects of inflation in reaching a damages award." There were also some suggestions in the legislative history to suggest that the 4% rate represented "interest" without an inflation component. The Court also noted that the 4% increase may well have been a legislative compromise to the overall enactment of the bill. The Court concluded that the "purpose of the 4% adjustment remains unclear," since neither the statute nor the legislative history behind the enactment of the 4% adjustment discloses any intent as to whether the legislature meant the rate to be exclusive, or a post-verdict adjustment for inflation. Therefore, until the legislature clarifies this issue, the Court felt compelled to strictly apply the statute, as written. This, the Court concluded, will ensure that the compensatory function of damages awards is met, since the concepts of inflation and interest "ensure that the passage of time will not devalue the award."

In Ingraham v. Carroll, 1997 WL 668373 (October 21, 1997) the Court considered the applicability of New York's long arm statute to a physician who treats patients in a neighboring state. Specifically at issue was whether the requirements of CPLR 302(a)(3) are met. The applicability of the statute turned upon whether the physician "regularly does or solicits business...in the state" or "engages in any other persistent course of conduct...in the state" or "derives substantial revenue from goods used or consumed or services rendered in the state."

The plaintiff was a patient of a New York HMO whose physicians referred her to the defendant for consultation just across the New York State border in Vermont. The defendant frequently sees patients referred by this HMO on an ad hoc/fee-for-service basis. Pursuant to a written referral by her New York physicians, the plaintiff traveled to Vermont to see the defendant for consultation; he subsequently performed surgery on the plaintiff at a Vermont hospital. Essentially, the Court held that all of the requirements of CPLR 302 would be met under these circumstances, with the exception of subsection 302(a)(3)(ii): whether the physician "derives substantial revenue from interstate or international commerce." It appears that this aspect of the statute would have to be considered on a case-by-case basis for such out-of-state physicians.

The Court noted that there is some support for the notion that the provision of medical services may never meet the definition of "commerce" for jurisdictional purposes. It might be that professional medicine is not "commerce" for the purposes of this statute. However, the Court did not have to decide whether the long arm statute would be inapplicable to all physicians, since in this case, the defendant could not be said to be engaging in interstate commerce. It would seem, therefore, that although not decided in Ingraham, it may be that no physician would be subject to New York's long arm statute. Such a holding would have broader implications in the growing field of telemedicine. Indeed, the Court noted that there are numerous instances where a physician treats a non-resident patient. These include, for example, situations where patients are traveling on vacation or, as in Ingraham, where the physician's office is located close to the state border. Additionally, a physician may treat non-resident patients "where a physician is so outstanding a specialist in a particular field as to attract numerous referrals from other physicians."

Determining that long arm jurisdiction turns on whether the physician derives substantial revenue from such interstate commerce, the Court noted that "the diversity of a physician's pool of patients, without more, cannot convert an otherwise local practice to an interstate business activity. A physician does not sell his or her services in interstate commerce by treating unsolicited patients that travel into the physician's home state seeking health care." The Court contrasted health care services from that of a manufacturer of a product: "A physician treating patients in his or her home state is providing a service that is inherently personal and local in nature." All of the physicians' revenue was derived from such "local medical services" which were all provided in Vermont. Without deciding the fate of a "renowned medical specialist," the Court noted that the physician's revenue in this case is "even less interstate in character than that of a renowned medical specialist, the bulk of whose income may be earned from treating out-of-state patients."

It is also noteworthy that this was a five to two decision. Although agreeing on the issue presented by these facts and circumstances, the dissent would deny the defendant's motion to dismiss since they would conclude that "medical services are becoming increasingly business-driven and managed," and that HMO medical referrals to a specialist "today quintessentially reflect a managed care commercial enterprise" (emphasis provided by the Court).

In Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 655 N.Y.S.2d 844, the Court had to consider whether it was error to refuse to charge res ipsa loquitur in a medical malpractice case. The Court reiterated that the plaintiff must establish the following three conditions in order to prove a prima facie case of negligence and be entitled to have res ipsa loquitur charged to the jury: (1) the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

In this case the plaintiff alleged that the defendants left an 18 x 18 inch laparotomy pad in the patient who underwent an abdominal hysterectomy. Defendant offered evidence to support their claim that they were not negligent and did not cause a laparotomy pad to be left in the patient, and that in fact the patient had swallowed the pad.

Both the trial court and the Appellate Division opined that the expert testimony offered and the possible alternative causes of the injury made the doctrine of res ipsa inapplicable. There was substantial expert testimony which the trial court believed demonstrated that resolution of the case was not within a lay jury's experience.

The high Court noted that other jurisdictions and commentators have come to varying conclusions as to whether expert testimony can be used to educate the jury and supply the necessary foundation for a consideration of res ipsa loquitur by a jury. The Court did not have to resolve this question, since it held the view that this case fell within a "narrow category of factually simple medical malpractice cases [which] requires no expert to enable the jury to reasonably conclude that the accident would not happen without negligence." Although the doctrine of res ipsa loquitur is seldom applied in medical malpractice actions, the often-cited exception is "where a surgeon leaves a sponge or foreign object inside the plaintiff's body." Thus the Court did not have to resolve the question of whether res ipsa loquitur is applicable in medical malpractice cases in which the jury is incapable of determining whether the first res ipsa loquitur condition has been met without the aid of expert testimony. The expert testimony provided by the defendants attempting to rebut the three conditions of the doctrine did not disqualify the case from consideration by the jury under res ipsa loquitur.

Often the Court will hear a case involving the application of the continuous treatment doctrine. Indeed, since its creation, the Court has warned of the dangers of undue extension of the doctrine. In Allende v. New York City Health and Hospitals Corporation, 90 N.Y.2d 333, 660 N.Y.S.2d 695, the plaintiff brought a malpractice action against the defendant hospital, claiming that a surgical procedure, which could have saved the circulation in her left hand and prevented the ultimate loss of two fingers, should have been performed by the defendant hospital. Plaintiff later sought care for treatment of conditions unrelated to her fingers at a different hospital which was also owned by the Health and Hospitals Corporation.

The Court noted that the continuous treatment doctrine applies to the time in which to file a claim under General Municipal Law § 50-e but held that the doctrine did not toll the 90-day period in this case. The fact that Health and Hospitals Corporation owned both hospitals, in and of itself, did not establish the necessary nexus to apply the doctrine. Although the Court did not foreclose "the possibility that continuous treatment can exist between two hospitals owned by the same entity under the appropriate circumstances," the Court found that something more than common ownership is needed. The evidence indicated that the plaintiff did not intend to return to the first hospital, nor was there evidence that plaintiff intended "uninterrupted reliance" upon the first hospital's physician's treatment. The policies behind the continuous treatment doctrine are clearly articulated by the Court in its decision, which notes that the plaintiff's situation in this case does not comport with the purpose behind the doctrine.

There is a nationwide trend to extend the duty of physicians to third-parties outside of the physician-patient relationship. In Tenuto v. Lederle Laboratories, 1997 WL 659904, the court found that a pediatrician's duty of care extends to the patient's parents. Since the 1970's, it has been known that there are risks, as well as benefits, to the administration of oral polio vaccines to infants. In a predictable number of cases, the live viruses lodging in the infant's gastrointestinal tract may grow and revert to virulent form. Contact with the infant's feces or saliva by the child's adult caretaker can result in paralytic polio.

In this case defendant pediatrician knew that the child's father was about to undergo surgery; this presented additional risks of exposure in light of the surgical wound which would result from the father's surgery. In caring for his daughter, the father was exposed to the virulent polio viruses and shortly thereafter he began to exhibit the symptoms of paralytic poliomyelitis, which ultimately rendered him a permanent paraplegic.

Although the trial court and Appellate Division correctly dismissed the claim based on a failure to obtain the statutory informed consent mandated by Public Health Law § 2805-d, because the father was not a patient of the pediatrician, the Court of Appeals reversed the dismissal.

A review of the complaint revealed that there had been too restrictive a reading of the allegations, and that plaintiffs had also alleged that the pediatrician owed the parents a duty based on common law principles of ordinary negligence and malpractice. The Court found that "a duty of reasonable care extended to plaintiffs despite the absence of a direct doctor/patient treatment relationship between them and [the pediatrician]." The physician should have complied with the recommendations of the vaccine manufacturer to warn the parents of their personal health risks. The Court explained that certain circumstances could justify "a limited extension of the duty of care of a physician beyond the immediate patient under treatment." Here, the circumstances which justified such an extension of a physician's duty include the fact that the physician knew or reasonably should have known that the non-patient was relying upon his exercise of due care. Additionally, there was a "special relationship" with the patient's family and a duty of care to warn them of the risk of incurring an infectious or highly contagious disease from the patient. The Court noted that there is further justification to extend the physician's duty when the treatment to the patient "necessarily implicates protection of household members or other identified persons foreseeably at risk ..." In this case there was a well recognized danger to the parents of incurring contact polio, and such danger was more likely given the father's increased vulnerability. In justifying this extension beyond the physician/patient relationship, it was likely helpful that the parents fell "within a determinate and identified class B immediate family members B whose relationships to the person acted upon have traditionally been recognized as a means of extending and yet limiting the scope of liability ..."

In Covey v. Iroquois Gas Transmission System, L.P., 89 N.Y.2nd 952, 655 N.Y. S.2nd 854, the plaintiff commenced an action pursuant to Labor Law § 240(1) for injuries sustained when he fell 20 feet from a backhoe into a trench while constructing a pipeline. He fell while attempting to replace the hydraulic fluid in the backhoe. The Court held that this activity was protected under Labor Law § 240(1), and that plaintiff's fall into the 15 foot deep excavation, "after attempting to steady himself by grabbing an improperly secured handrail," was the type of elevation-related risk for which the scaffolding law provides protection.

In Felker v. Corning, Inc., 90 N.Y.2d 219, 660 N.Y.S.2nd 349, a painter was injured when he fell over an 8 foot alcove wall and through a suspended ceiling to the floor below. The Court held that Labor Law § 240(1) was violated. The record indicated that plaintiff fell as he reached from a ladder, over an elevated open area, in order to paint an area of an alcove. The Court noted two distinct elevation risks: there was a risk in elevating plaintiff to the height above the alcove wall, and a risk created by plaintiff's need to reach over the 8 foot alcove wall over an elevated open area. Because no device was provided to protect the plaintiff from falling through the open elevated area above the alcove, the Court was satisfied that this was the cause of plaintiff's injuries.

General Obligations Law § 5-322.1 bars the enforcement of an indemnification clause in a contract between a general contractor and a sub-contractor, where there is a finding of active (i.e., not statutory) negligence on the part of the general contractor. In ITRI Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 89 N.Y.2d 786 (1997), the Court of Appeals addressed the issue of whether a general contractor who is found partially negligent would be permitted to enforce the indemnification clause to the extent that it sought reimbursement for that portion of negligence attributable to other parties.

In ITRI Brick, the Court of Appeals reviewed two decisions from the First and Second Departments, which had come down squarely opposed on this issue. The Court held that G.O.L. § 5-322.1 renders a "hold harmless" indemnification agreement completely void in situations where the general contractor is found negligent to any degree. The Court limited its holding to the facts of the case, however, holding the indemnity agreements unenforceable pursuant to G.O.L. § 5-322.1 because they contemplated full, rather than partial, indemnification for the general contractor's negligence. Accordingly, the Court of Appeals specifically left open the issue of whether a partial indemnification agreement may be enforced in such a situation. See National Union v. State Insurance Fund, NYLJ, 1/15/98, p. 36, col. 5 (Sup. Ct., Nassau Co. (Levitt, J.) 1998).

The practical impact of ITRI Brick appears to be the following: where the general contractor/third-party plaintiff is found negligent to any degree for the injury to a subcontractor's employee, the indemnity agreement will be unenforceable. The general contractor's CGL (Commercial General Liability) insurer will likely disclaim coverage to the subcontractor/third-party defendant, since the insurer only provides the subcontractor with coverage for contractual liability under the CGL policy. This will allow the third-party plaintiff to avoid the application of the antisubrogation rule and equitably subrogate against the subcontractor/third-party defendant for any payments made on the underlying claim, which are not attributable to the third-party plaintiff's own negligence. Nevertheless, it remains to be seen how this decision will be applied by the Appellate Divisions in the antisubrogation context. See Small v. Yonkers Contracting, Inc., 242 A.D.2d. 378, 662 N.Y.S.2d 67 (2nd Dept. 1997), and Pierce v. City of New York, 243 A.D.2d 694 (2nd Dept. 1997), rearg. pending.