Rochester Legal Briefs: October 4, 2005

In the Appellate Division, Fourth Department's recent decisions released on Sept. 30, a number of tort decisions were issued. These included application of the doctrine of res ipsa loquitur to a surgical procedure, the wording of the jury charge on proximate cause, and application of summary judgment in a dog vs. bicycle case. The appellate division also addressed issues relating to accounting malpractice.

CIVIL DECISIONS

Jury Charge - Proximate Cause - Definite v. Indefinite Article

The appeal in a Cayuga County medical malpractice suit turned upon the precise wording of the jury charge.

A four-year-old boy was injured when falling from a hayloft. He was treated for a concussion at Cortland Community Hospital and released to his parents a few hours later. Several months afterwards, the family doctor discovered that the boy's skull was actually fractured, which the hospital had not treated.

The case came to trial eight years later, the boy having sustained permanent brain damage that, according to the plaintiff, could have been abated by proper diagnosis and treatment. The jury verdict found the defendants negligent but did not find that the negligence was a proximate cause of the injury.

The plaintiff's motion to set aside the verdict due to the jury charge was denied by the trial court and was the subject of review on appeal. The initial charge on proximate cause used the definite article the in referring to proximate cause. The Fourth Department agreed that the jury instructions, which interchanged the and a on proximate cause, was error.

At trial the plaintiff failed to object to this as well as to the definition of proximate cause in response to a jury question. The Fourth Department therefore found that the plaintiff failed to preserve the issue for appeal.

The decision noted that the Acting Supreme Court Judge Peter E. Corning thoroughly discussed the plaintiff's contention regarding injury and causation. The verdict sheet also properly included the question whether the defendant's negligence was a proximate cause. The charge as a whole therefore properly conveyed the correct legal standard regarding proximate cause.

Gregory v. Cortland Memorial Hospital et al., Cayuga County, no. 999.

Medical Malpractice - 'Res Ipsa Loquitur'

The plaintiff's knee was allegedly burned during a surgical procedure at a Steuben County hospital. The plaintiff moved for summary judgment, relying on the theory of res ipsa loquitur: the injury would not occur in the absence of negligence, the operating room and instruments were under the defendants' exclusive control, and there was no evidence that the plaintiff contributed to the injury.

The hospital cross moved for summary judgment, submitting deposition testimony and an affidavit of the operating room technician that there was no departure from accepted practice. The defendants also argued that the knee was not burned and if burned, this was not due to the doctor's negligence.

Acting Supreme Court Judge Peter Bradstreet denied both parties' motions. Summary judgment based on res ipsa loquitur is appropriate only where the prima facie proof is convincing and the inference of negligence is inescapable. The inference of negligence was rebutted. There were issues of fact regarding the hospital's liability and therefore the cross motion was properly denied as well.

Smith v. Tabb, Ira Davenport Memorial Hospital, et al., Steuben County, no. 1025.

Accounting Malpractice - Privity

An accounting malpractice action was brought by an individual as well as a company. The causes of action included fraud, negligence and indemnification. The defendant moved to dismiss on the grounds of insufficient allegation of either a direct contractual relationship with the accounting firm or the functional equivalent of privity, and that the defendant had no duty to act in a nonnegligent manner toward the plaintiffs.

The appellate analysis relied on the three-prong test in the Court of Appeals decision in Credit Alliance Corp v. Arthur Andersen & Co., 65 NY2d 536, 493 NYS2d 435 (1985), regarding liability of an accountant in negligence to noncontractual parties. The Fourth Department found that the plaintiff's allegations satisfied that test, which concerns the existence of the functional equivalent of privity. The plaintiff also sufficiently alleged actual privity of contract because the plaintiff was known to the defendant to be a limited partner of one of the companies.

The claims of gross negligence and recklessness in the fraud cause of action were sufficiently particularized to satisfy CPLR 3016.

Regarding the plaintiffs' cross appeal, because they failed to perfect it within nine months, the cross appeal was deemed abandoned.

Chaikovska and Creek Ventures, LLC v. Ernst & Young, LLP, Erie County, no. 1026.

Summary Judgment - Dogs And Bicycles

A man riding a bicycle was injured when a dog collided with him, causing the cyclist to fall. The defendants on summary judgment established that the dog was neither vicious nor interfered with traffic, but the plaintiffs raised a triable issue of fact. Judge John G. Ringrose properly denied summary judgment.

Oerlemans v. Cornish, Oneida County, no. 1002.

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