Two Recent Decisions From New York’s First Department Regarding Premises Liability

Today, two decisions were issued from the First Department pertaining to premises liability.  The first decision concerns the “sole proximate cause” defense and the second decision reiterates the notion that an owner of premises will not be insulated from liability merely because it complies with the building codes.
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NJ Appellate Division Cracks Down on the Practice of Bootstrapping Expert Opinions

Last week, primarily relying on Evidence Rules 703 and 808, the New Jersey Appellate Division struck a blow to the practice of bootstrapping, which is when a testifying expert at trial improperly presents a non-testifying expert’s opinion to the jury.

In James v. Ruiz, the New Jersey Appellate Division addressed whether lawyers are allowed to ask an expert witness at trial whether his or her findings are consistent with those of a non- testifying expert. In other words, the Appellate Division confronted the practice of utilizing expert testimony to “bootstrap” into evidence unauthenticated hearsay studies, reports, or other documentary evidence.

Judge Sabatino, writing for the Court, held that such questioning is inappropriate when the purpose is to have the jury consider an absent expert’s hearsay opinions about “complex and disputed matters.”
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Redacting Confidential Personal Information From Court Filings is Now Mandatory in New York

As of March 1, 2015, parties to litigation in New York Courts are required to redact confidential personal information (“CPI”) on any documents filed in the Supreme and County Courts.  Given the number of deposition transcripts and Bills of Particulars that I have seen submitted without redacting personal information (such as social security number, taxpayer identification number, or birth date), it appears that many practicing attorneys have not received the memo.

To paraphrase the New Age Outlaws, “Oh you didn’t know, well then you better call somebody!”

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The Reach of the Communications Decency Act’s “Good Samaritan” Clause

Two recent local cases, one from the Second Circuit and one from the District of New Jersey, serve as reminders regarding the reach of the “Good Samaritan” clause of the Communications Decency Act (“CDA”) and demonstrate that the CDA is a powerful defense against tort claims brought against operators of websites. Read the rest of this entry »

Sleeping Yankee Fan Strikes Out With Lawsuit Against ESPN

As reported by multiple media outlets, a Yankee fan who fell asleep during the New York Yankees-Boston Red Sox game on April 13th filed a lawsuit against the Yankees; ESPN New York; MLB Advanced Media; and ESPN announcers, Dan Shulman and John Kruk.

The Complaint, which was filed by Okwara & Associates, P.C. on July 3rd in the Bronx County Supreme Court, alleges that “announcers like” Shulman and Kruk “unleashed [sic] avalanche of disparaging words against the . . . plaintiff” when ESPN’s Sunday Night Baseball broadcast showed Andrew Rector “nap[ping]” during the top of fourth inning of “the rivalry game between the Boston Red Sox and the New York Yankee [sic].”  The alleged defamatory language included:  “stupor, fatty, unintelligent, [and] stupid.” Read the rest of this entry »

Alaska PLCAA Decision

The Supreme Court of Alaska Upholds Constitutionality of the Protection of Lawful Commerce in Arms Act and Holds That Negligence Claims Arising From the Theft of a Firearm Do Not Meet an Enumerated Exception to the Act

On February 22, 2013, the Supreme Court of Alaska issued its decision in Estate of Kim v. Coxe, No. S-14077, 2013 Alas. LEXIS 18 (Alaska Feb. 22, 2013), which affirmed the constitutionality of the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901, et seq. (“PLCAA” or the “Act”) and held that the Act prohibits lawsuits against a manufacturer or seller based on general negligence theories.  In fact, the Alaska Supreme Court specifically held that the theft of a firearm from a retailer “does not support liability under claims excepted from the PLCAA.”

Factual Background

On August 2, 2006, Jason Coday entered Defendant’s gun shop (Rayco Sales).  All three persons present in Rayco that afternoon (owner Ray Coxe, employee Bill Driver, and customer Stan Buckham) testified that they did not notice any behavior from Coday to indicate danger or potential for violence.  After Coday inquired about purchasing a .22 caliber rifle for target shooting, Coxe suggested a used Ruger rifle priced at $195.  Coday ultimately stated that he would have to think about the purchase and appeared to be leaving the store.  When Coxe left the store front, Coday then stole the rifle and left two $100 bills on the counter.  Read the rest of this entry »