Recent New York appellate decisions will impact municipal tort litigation.

• Author: Shields, John M.

INTRODUCTION

Throughout the past thirty years, the Fordham Urban Law Journal has progressively published numerous articles concerning a broad range of topics, including discussions of decisions affecting litigation practice and municipal liability. (1) This Article will discuss and summarize the recent significant decisions by the New York State Court of Appeals and other appellate courts that will alter or greatly impact future tort litigation, especially with regard to municipal liability.

Although the State of New York has waived its sovereign immunity, the waiver was not absolute. The waiver of sovereign immunity is specifically conditioned upon compliance with the requirements that accompany the waiver and the standards established by the Court of Claims Act. (2) In Alston v. State of New York, (3) the Court of Appeals stressed the potential rigidity of the time limitations for filing a claim against the State, pursuant to the Court of Claims Act. (4)

On several recent occasions, the Court of Appeals thoroughly discussed the "serious injury" standard conditioned within New York Insurance Law. (5) Accident victims must present admissible evidence that contains verified, quantitative, and objective medical results in order to successfully establish a prima facie case that a plaintiff sustained a "serious injury," as defined by the State Insurance Law. (6)

In more than one decision, the court took the opportunity to clarify the rule of apportionment contained within Article 16 of the Civil Practice Law and Rules ("CPLR"). (7) Article 16 permits a defendant to seek apportionment of its liability with another tortfeasor. Additionally, apportionment of damages for personal injuries is permissible between a negligent landlord or owner and a non-party assailant in cases involving negligent security. (8)

Twice this past year, the court addressed the standard of care required for the operation of hazard and emergency vehicles. (9) The court confirmed that "recklessness" was the proper standard of care to apply to "hazard" vehicles. (10) At the same time, the court rejected the argument that such vehicles must be located in a designated "work area" in order to qualify for the hazard vehicle exemption. (11)

In Criscione v. City of New York, (12) the Court of Appeals clarified that a "police officer who was driving a patrol car in response to a [non-emergency] dispatch call was engaged in the 'emergency operation' of a vehicle as defined in New York State Vehicle and Traffic Law ("VTL") [section] 114-b." (13) "Consequently, [the officer's] actions should not be measured by ordinary negligence standards, but rather by the 'reckless disregard' standard of [VTL] section 1104(e)." (14)

The appellate courts further discussed the requisite standard required to establish municipal liability for the negligent performance of a governmental function. (15) Absent a special relationship, tort liability cannot be fixed for the State's performance of a governmental function. (16) The plaintiff must demonstrate that the State, through direct personal contact, assumed an affirmative duty to act on the injured party's behalf, which was conveyed to the injured party and subsequently relied upon. (17) Courts have recently focused on the most critical element of the special relationship, the injured party's justifiable reliance on the government's assurances. (18) The plaintiff must prove that the defendant's conduct actually placed her in a more dangerous position by creating a false sense of security, causing her to relax her guard and not pursue other options of protection. (19)

Similarly, the court reiterated that immunity protects discretionary engineering decisions made by municipalities. (20) Recently, the court confirmed that the decision to install a traffic control device is a purely discretionary governmental function, which is completely protected from liability by qualified immunity. (21) "Something more than a choice between conflicting opinions of experts is required before a governmental body may be held liable for negligently performing its traffic planning function." (22) "[N]either letters urging [a municipality] to install a signal nor the recommendation by the [private engineer] that one be installed raises an issue of fact concerning the reasonableness of the [municipality's] determination." (23)

Finally, the court discussed whether a party to a contract may be liable in tort to a third party. (24) Although a contractual obligation alone does not give rise to tort liability in favor of a third party, the court articulated three specific exceptions that would create liability in such circumstances. (25)

1. STRICT TIME LIMITATIONS FOR FILING CLAIM AGAINST THE STATE

   In Alston v. State of New York, (26) the Court of Appeals stressed the potential rigidity of the time limitations for filing a claim against the State, pursuant to the Court of Claims Act. (27) In Alston, after an unsuccessful attempt in federal court by parole officers to recover overtime allegedly earned, the claimants filed a proceeding in the Court of Claims to obtain the same monetary reward. (28) The Court of Claims granted the State's motion to dismiss the claims because the claimants failed to timely file their claims pursuant to section 10(4) of the Court of Claims Act. (29)

   "The State's waiver of sovereign immunity was not absolute, but [specifically] conditioned upon claimant's compliance with the [requirements accompanying] the waiver, including the ... filing [of] deadlines." (30) "The Court of Claims Act could not be [more] clear in conditioning the waiver of sovereign immunity on compliance with the [established] time limitations...." (31) The unequivocal language of the Act states that, "no judgment shall be granted in favor of any claimant, unless [the] claimant" complies with the existing time limitations. (32) "[B]ecause the claimants failed to [timely] file their claims in the Court of Claims ... and did not timely seek relief from the Court under the Court of Claims Act [section] 10(6), the State was entitled to dismissal of the claim on sovereign immunity grounds." (33)

2. REVISITING THE "SERIOUS INJURY" STANDARD UNDER INSURANCE LAW

   The Court of Appeals has addressed the "serious injury" standard within the meaning of No-Fault Law, New York State Insurance Law section 5102(d), (34) in several decisions during the past two years. The No-Fault Law provides a system whereby victims of automobile accidents can receive compensation for their economic losses without regard to fault or negligence. (35) An injured party may still bring an action to recover for non-economic loss, pain, and suffering, as long as the plaintiff can demonstrate that she has suffered a "serious injury" within the definition of No-Fault Law. (36)

   In Oberly v. Bangs Ambulance, the court indicated "that only a 'total loss' of use [of a body organ, member, function, or system] is compensable as a 'permanent loss of use' exception to the no-fault remedy." (37) In Oberly, the plaintiff suffered a minor injury to his forearm when a pump fell on his arm while he was being transported in an ambulance. (38) The court held that "the statute speaks in terms of a loss of a body member, without qualification." (39) Additionally, "requiring a total loss is consistent with the statutory [language] of the categories 'permanent consequential limitation of use of a body or organ or member' and 'significant limitation of use of a body function or system.'" (40) Accordingly, only a total loss of use is compensable under the permanent loss of use exception. (41)

   1. Nature and Extent of Qualified, Objective Medical Evidence Necessary to Meet the Serious Injury Threshold

      In Toure v. Avis Rent A Car Systems, (42) the court consolidated three appeals and focused specifically on the nature and extent of qualified, objective medical evidence required to overcome the serious injury threshold. (43) Initially, the court noted that the legislative intent of the No-Fault Law was to eliminate "frivolous claims and limit recovery to serious injuries." (44) The court stressed that objective medical evidence of a plaintiff's injury is required to satisfy the serious injury threshold. (45) An expert's quantitative and qualitative assessment of a plaintiff's condition may substantiate a claim, "provided that the evaluation [is supported by] an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body [part]." (46)

      In one case, the plaintiff submitted an affirmation of a neurosurgeon to oppose defendant's motion for summary judgment. (47) The court held that the plaintiff, at a minimum, created an issue of fact by submitting an expert's affirmation supported by objective medical evidence, including Magnetic Resonance Image ("MRI") and Computerized Tomography ("CT") scan tests and reports and personal observations, which sufficiently described the qualitative nature of the plaintiff's limitations. (48) Similarly, in the second case, the treating orthopedic surgeon described the qualitative nature of plaintiff's limitations based on the normal function, including the plaintiff's own medical history, physical examination, and review of the MRI scan. (49)

      In the final case, the court held that the plaintiff's doctor failed to adequately demonstrate a significant limitation. (50) Although the doctor detected a back spasm, he failed to articulate what objective test, if any, induced the spasm. (51) Additionally, the expert's conclusion was based, in part, on a review of an MRI report that was never introduced into evidence, thus foreclosing cross-examination. (52)

   2. Threshold for "Serious Injury" Under Insurance Law Requires Admissible, Verified, Objective Medical Findings

      Previously, the New York State Supreme Court, Appellate Division, Second Department thoroughly clarified the specific type and quality of admissible evidence necessary...