New York Court of Appeals Holds “Symptom Threshold” Methodology Is Inadmissible, But Cites “Odor Threshold” Methodology With Approval

—by David M. Katz

Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

Abstract:

The New York Court of Appeals recently decided that the basis for an expert opinion on the specific concentration of a chemical cannot be predicated solely on a person’s symptoms, but also noted that expert opinion that a chemical was present at the concentration of scent detection could be admissible.

***

On February 11, 2016, the New York Court of Appeals decided Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

The plaintiff was born with significant physical and mental birth defects.  The plaintiff alleged that his injuries were caused when his mother inhaled high concentrations of gasoline fumes while driving her 1989 BMW 525i during her first trimester of her pregnancy.  Both the plaintiff’s mother and grandmother stated that they could smell gasoline odors in the car.  Additionally, the plaintiff’s mother suffered from “headaches, dizziness and throat irritation” after driving in the car.  Further, the plaintiff’s mother and father stated that they could smell gasoline in their house when the car was parked in the garage.

Two causation experts opined on the nexus between the gasoline vapor exposure, the concentration of the gasoline during the exposure, and the plaintiff’s birth defects.  Using two separate methodologies, the plaintiff’s two causation experts came to the conclusion that the plaintiff’s mother inhaled gasoline at a concentration of 1,000 parts per million based solely on the symptoms exhibited during exposure to the gasoline fumes.

The defendants first filed motions for summary judgment, arguing that the plaintiff’s experts failed to lay a foundation for their opinions.  The trial court denied the motions.  The appellate division modified the order on other grounds.

The defendants then challenged the experts’ “symptom-threshold” methodology, arguing that using symptoms to determine a concentration of a chemical is not generally accepted within the scientific community.  The trial court precluded the plaintiff’s experts from testifying because symptom-threshold methodology was not generally accepted in the scientific community as a means of determining concentrations of chemicals.  On reargument, the court reaffirmed its prior decision.  The appellate division affirmed and granted a motion for leave to appeal to the Court of Appeals.

The plaintiff’s experts employed the symptom-threshold methodology.  Under the symptom-threshold methodology, an expert uses statements regarding odors and the symptoms that resulted to determine the concentration of chemicals that a person was exposed to.  The Court of Appeals began by noting that the plaintiff could not show any scientific literature employing the symptom-threshold methodology for causation purposes.  While the Court of Appeals noted that smelling chemicals and experiencing symptoms could be corroborative of a level of concentration, that evidence alone cannot “divine an otherwise unknown concentration of gasoline vapor.”  Thus, the court found that a symptom-threshold methodology, where symptoms are used to determine the concentration of a chemical, was not generally accepted in the scientific community.

The Court of Appeals distinguished the symptom-threshold methodology from other cases where experts employ the “odor threshold” methodology.  Similar to the methodology employed by the plaintiff’s experts, experts using the odor threshold methodology determine that a chemical concentration exists because the witness smelled a chemical.  However, unlike the plaintiff’s experts, experts employing the odor threshold methodology limit their opinion to the fact that the concentration was at least at the minimum concentration required for humans to smell the chemical.  The Court of Appeals noted that the odor threshold methodology is admissible because the level of detection is self-proving: if someone can smell a chemical, then it must be present at a certain minimum level.  As a result, the Court of Appeals, while rejecting the symptom-threshold methodology, also opened the door for the odor threshold methodology in toxic tort cases where the level of detection is equivalent to the level of toxicity.

New York Court of Appeals Finds State Thruway Authority not Responsible in Slip-and-Fall Outside Precinct

—by Adam Kuhn

Sherman v. N.Y. State Thruway Auth., No. 56, 2016 N.Y. LEXIS 1061 (May 5, 2016).

Abstract:

The New York Court of Appeals granted summary judgment for the defendant in a personal injury claim for a slip-and-fall. Applying the “storm in progress” doctrine, the Court concluded that the storm had not ended at the time of plaintiff’s fall, and therefore the defendant was not responsible.

***

Rodney Sherman, a New York State Trooper, brought a personal injury claim against the New York State Thruway Authority after falling on an icy sidewalk outside the precinct. Sherman argued that the Authority was negligent for failing to keep the sidewalk clear of ice. The Authority argued that it was entitled to summary judgment on the “storm in progress” doctrine. The Appellate Division, Second Department, granted summary judgment for the Authority, and Sherman appealed. The New York Court of Appeals affirmed the appellate division.

The storm in progress doctrine says that a landowner is not responsible for injuries occurring on his or her property if the injuries result from an icy condition “during an ongoing storm or for a reasonable time thereafter.” The Authority established that there was an ongoing storm at the time of Sherman’s fall. An ice storm occurred the night before the fall, and a weather report showed it was raining at near freezing temperatures when Sherman fell. Since the storm was still ongoing, the Authority’s responsibility of reducing the icy condition did not yet arise. Sherman was unable to raise a triable issue of fact.

In a dissenting opinion, Judge Rivera argued there were issues of fact about whether the storm had ended, and if it did, whether a reasonable time had passed for the Authority to manage the icy sidewalk.

Injured? You May be Covered: Court Of Appeals Extends the Duty of Care Owed by Medical Providers to Members of the General Public

— By Andrew Stewart

Davis v. South Nassau Communities Hosp., 2015 NY Slip Op 09229 (December 16, 2015).

Abstract: The Court of Appeals recognized a legal duty owed by medical providers to a non-patient, third party even in the absence of a special relationship. In doing so, the Court has joined the trend of other States, expanding the duty of care jurisprudence to include members of the general public.

***

In 2009, Lorraine Walsh drove herself to the Hospital and was checked into the emergency room. At 11:00 AM, two medical professionals (collectively with the Hospital referred to as “Defendants”) intravenously administered Dilaudid, an opioid narcotic painkiller and Ativan, a benzodiazepine drug. Examination of the warning labels supplied with the drugs, in addition with testimony elicited by an expert, established that the common side effects of Ativan include “sedation, dizziness, and disorientation”, which can create a “sedative/hypnotic” state. Additionally, Dilaudid can be up to eight times as powerful as morphine, with effects lasting between two to four hours. Dilaudid’s warning labels explicitly warn against the dangers of “driving a car or operating machinery.” Nevertheless, the two medical professionals at the Hospital failed to warn Walsh about the dangers of driving after receiving the medications. At 12:30 PM, only 90 minutes after administration of both drugs, Walsh was released from the hospital. Nineteen minutes later, she crossed the double centerline and crashed into another vehicle, seriously injuring the driver, Edwin Davis.

Davis filed suit alleging medical malpractice because Defendants failed to warn Walsh of the effects of the medication. His wife also alleged a derivative action for loss of consortium. Defendants moved to dismiss for failure to state a cause of action, which was granted by the trial court. The Appellate Division affirmed, stating that the Defendants did not owe a duty of care to the plaintiff because of the lack of a physician-patient relationship (that relationship existed between Walsh and Defendants, not Davis).

The Court of Appeals disagreed. It concluded that the duty of care extended to Davis: “the defendants owed to plaintiffs a duty to warn Walsh that the medication administered to her either impaired or could have impaired her ability to safely operate an automobile.”

Before reaching its conclusion, the Court of Appeals reviewed New York’s history of evaluating duty questions in the context of the medical profession. It noted the court’s precedent had been reluctant to impose a duty of care to “the general public” because it consists of “indeterminate, faceless, and ultimately prohibitively large class of plaintiffs, as opposed to a

‘known and identifiable group.’” The Court had only recognized a small exception for “special relationships.” Special relationships were limited to “members of a patient’s immediate family or household who may suffer harm as a result of the medical care a physician renders to that patient” because those plaintiffs are of a definable class. Importantly, the Court noted it had expanded the duty in such cases because the third party’s injury resulted from the physician’s performance of the duty of care owed to the patient [emphasis added]. The Court, therefore, concluded it had left the door open to expand the duty of care between a treating physician who takes the affirmative step of administering medication, but fails to warn the patient of the dangers of operating a motor vehicle, to a member of the general public who is affected by that omission [emphasis added].

In the instant case, the Court imposed a duty of care extending from the Defendants to Davis. In parting from previous decisions, the court identified several others factors that are used to calculate whether a duty should exist. Those include capacity of the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the wrongdoer. Further, the Court quoted Prosser and Keaton; “no better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” Torts § 54 at 359 {5th Ed. 1984).

Here, the Defendants took affirmative step to administer medication, but had failed to warn the patient about the risks to driving. Their failure to warn created a peril affecting every driver in Walsh’s vicinity. A duty of care must be imposed on medical professionals in this scenario, said the Court, because the “cost” of imposing the duty is small: he or she must simply warn the patient of the dangers. Physicians often advise patients of the risks of certain medications; requiring them to do so imposes no additional, significant obligations. Just as a pharmacist administers warnings to a patient that prescribed medication could impair the ability to drive when the patient picks up his or her prescription, a medical provider should be required to take a similar, simple prophylactic measure [emphasis added]. Furthermore, the Court recognized that other States extend the duty of care from the physician to members of the general public to warn the patient about adverse side effects of medications when the physician has administered the medication, or in other ways has treated the patient.

“This is an instance in which defendants’ ‘relationship with. . .the tortfeasor. . .placed them in the best position against the risk of harm.’” Therefore, the Court concluded that the Defendants owed a duty of care to Davis as a third party member of the general public.

Women Only Liable for Intentional Injuries to Unborn Fetuses, Court of Appeals Says

–by Chris Powers

Abstract: The New York Court of Appeals ruled that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence because criminalizing negligence in this context gave too much discretion to prosecutors.

***

The New York Court of Appeals ruled last month in People v. Jorgensen[1] that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence.

 

Jorgensen was 34 weeks pregnant when the car she was driving entered the oncoming lane of traffic and struck a vehicle head on, killing both occupants of that vehicle. Jorgensen was taken to a hospital, where tests revealed probable fetal injuries. She consented to an emergency C-section, and the baby was delivered. The baby died six days later and an autopsy confirmed that the cause of death was injuries sustained the automobile accident.

 

Jorgensen was subsequently indicted on three counts of manslaughter in the second degree, one for each occupant of the other vehicle and one for the baby. At trial, the prosecution’s theory was that defendant was speeding and under the influence of prescription drugs when she struck the vehicle. Upon impact, the fetus was injured when the defendant, who was not wearing a seat belt, hit the steering wheel. The first jury was unable to reach a verdict, but a second jury acquitted her of two counts but convicted her for the death of her child. The Appellate Division affirmed the trial court.

 

The Court of Appeals reversed by a 5-1 vote, holding that “it is evident from the statutory scheme that the legislature . . . did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” The majority analyzed multiple provisions in the New York Penal Law to reach the conclusion that the legislative intent in making the relevant laws was to require intentional behavior, not mere recklessness, by a pregnant woman to hold her criminally responsible for harm to themselves and their unborn children. Specifically, the majority found that the legislature had explicitly included criminal liability for harm to unborn fetuses in circumstances relating to self-abortions, so the legislature clearly had contemplated prenatal acts in devising the statute. The fact that reckless and negligence were not included, the majority contended, was not an inadvertent omission; the legislature must have meant to exclude it.

 

Next, the majority gave a policy reason for reaching its result, saying, “The imposition of criminal liability . . . [should] not be left to the whim of the prosecutor.” As the majority argued, a pregnant woman’s reckless behavior could be stretched by an ambitious prosecutor to include “disregard[ing] her obstetrician’s specific orders concerning bed rest; tak[ing] prescription and/or illicit drugs; shovel[ing] a walkway; engag[ing] in a contact sport; carry[ing] groceries; or disregard[ing] dietary restrictions.” If mere recklessness could result in criminal liability, a mother could conceivably be charged with a crime for such conduct if it resulted in premature birth and subsequent death of the child. The same conduct, however, would not be criminalized if the fetus died in utero. In essence, the majority was worried about creating a perverse incentive for a woman to refuse to deliver the baby if she feared criminal prosecution should the baby not survive after birth.

 

One judge dissented, saying, “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.” The dissenting judge conducted a statutory interpretation of his own, citing many of the same statutes, to reach an opposite conclusion. He reasoned that the “pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed. There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother’s baby postpartum.”

 

In its opinion, the majority directly appealed to the legislature to make its intent clear for such a situation as the facts presented here. (“The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts.”)

 

Time will tell if the state lawmakers respond.

 

[1]           People v. Jorgensen, 2015 NY Slip Op 07699, (N.Y. Oct. 22, 2015),

http://www.courts.state.ny.us/reporter/3dseries/2015/2015_07699.htm

 

Survey: 2014 Tort Law

Survey of New York Tort law for 2013–2014.

View Full PDF

John C. Cherundolo is a former Supreme Court Justice of the New York Unified Court System, Onondaga County, and an Adjunct Professor of Law at Syracuse University College of Law. LL.M. Temple Law, J.D. Syracuse University College of Law, M.P.A Syracuse University Maxwell School, and B.A. Syracuse University.

Coleson v. City of New York

This appeal stems from a negligence suit against the City of New York and the New York City Police Department (NYPD) and addresses what evidence is necessary to establish that a special relationship existed between an individual and a municipality that would require the municipality to exercise a duty of reasonable care.

The plaintiff in this case, Jandy Coleson, had suffered verbal and physical abuse at the hands of her husband for years and had obtained several orders of protection against him. On June 23, 2004, plaintiff’s estranged husband attempted to force himself into her building and threatened to stab and kill her with the screwdriver he was carrying. Plaintiff called the NYPD, but when they arrived, Coleson had fled. After searching for him with plaintiff’s assistance, Coleson was apprehended the following morning. Plaintiff and her son were transported to the precinct where an Officer Reyes told her that Coleson had been arrested and “was going to be in prison for a while.” Reyes also told plaintiff she was going to be given protection. Plaintiff and her son were then taken to Safe Horizon, a non-profit domestic abuse victims’ organization. Later that evening, plaintiff received a telephone call from Officer Reyes, in which she was told that Coleson “was in front of the judge” and that “everything was okay.” Two days later, while picking her son up from school, plaintiff was approached by Coleson, who proceeded to stab her in the back with a knife. Plaintiff’s seven-year-old son was placed in a broom closet by an employee of the car wash across the street from the school, and upon coming out, witnessed his mother lying in a pool of blood.

On behalf of her and her son, plaintiff commenced a negligence suit against the City of New York and the NYPD, also asserting a claim for negligent infliction of emotional distress. The City moved for summary judgment, arguing that Reyes’ statements were not definite enough to create justifiable reliance in order to establish a special relationship in satisfaction of the duty prong of plaintiff’s negligence claim. Plaintiff argued a special duty existed based on the NYPD’s agreement to provide protection to her. The Supreme Court granted the City’s motion for summary judgment and the Appellate Division, First Department affirmed, saying the statements “were too vague to constitute promises giving rise to a duty of care.”

The Court determined that there was sufficient evidence to conclude plaintiff raised a triable issue of fact as to whether a special relationship existed. The court emphasized that the “injured party’s reliance is . . . critical,” and also that in applying the factors set out in Cuffy v. City of New York, a jury could reasonably find for plaintiff. The Court also distinguished this case from a previous case relied on by the Appellate Division, stating that conduct of the police here was more substantial, involved, and interactive than the police conduct in Valdez v. City of New York. The case was remitted to the Appellate Division, First Department to be modified in accordance with the opinion.

The dissent objected on the grounds that opening up municipalities to tort liability in domestic abuse cases is a slipper slope that will lead to police officers giving as little information as possible to victims in order to avoid civil liability.

999 N.Y.S.2d 810 (N.Y. 2014)

View Full Decision on Westlaw

Rigano v. Vibar Const., Inc.

The issue decided in the case is whether a notice of mechanic’s lien can be amended nunc pro tunc to reflect the name of the true owner of the property or whether the misnomer invalidates the lien.

George Vigogna (sole shareholder of Vibar Constructions Corp.) and Nick Rigano (sole shareholder of Fawn Builders, Inc.) were business partners for over 35 years up until the dispute at question arose in 2007. Both parties often worked together, split their profits and rarely put their business agreements in writing.

During the project at issue, Vigogna’s company constructed a driveway to access a property and claims that Rigano’s company failed to compensate them for the construction of the road. Vigogna’s company filed a notice of a mechanic’s lien on the property in order to recover costs for construction of the road. Rigano sought to have the lien discharged on the grounds that he, and not his company owned the property, and that the lien was invalid. Vigogna sought to amend the lien. The Supreme Court granted Rigano’s petition and discharged the lien and the Appellate Division affirmed holding that “a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc.”

The Court of Appeals reversed the Appellate Division’s holding. They referenced Matter of Niagara Venture v. Sicoli & Massaro, where they stated in that case that, “Substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same . . .  and a failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien.” The Court also referenced Article 2 of the Lien Law which says they are to be construed liberally.

Combining these principles, the Court said in these particular circumstances, that the amendment sought was authorized and the defect in the lien was a misdescription, which allowed the amendment, and not a misidentification.

998 N.Y.S. 2d 748 (N.Y. 2014)

View Full Decision on Westlaw

 

Reis v. Volvo Cars of North America

This appeal addresses the proper jury charge for defective design of product suits. The plaintiff, Manuel Reis was pinned against a wall and lost his left leg after his friend’s 1987 Volvo station wagon lurched forward upon starting the engine. The plaintiff initiated this action, claiming that Volvo was responsible for this accident for failing to install a starter interlock in their cars with manual transmissions, or at least, warning users that the car could lurch forward when the engine is started while the car is in first gear. The plaintiff offered expert testimony stating that many automobile manufacturers had begun installing starter interlock mechanisms in their 1987 manual transmission cars. Volvo, on the other hand, justified their decision not to install starter interlocks because it would prevent the car from moving quickly in an emergency and the likelihood of a situation such as plaintiff’s occurring was very low. The jury was charged with PJI 2:15 (Common Law Standard of Care – Defendant Having Special Knowledge) and PJI 2:16 (Common Law Standard of Care – Customary Business Practices) despite Volvo’s objections. The jury found that Volvo was negligent in failing to install a starter interlock, but also found that the 1987 station wagon was reasonably safe without the device installed. The plaintiff was awarded $10,000,000 in damages.

Before judgment was entered however, the Appellate Division decided Volvo’s appeal from the Supreme Court’s decision to deny summary judgment, and dismissed plaintiff’s failure to warn claims. Thus, the trial court set aside that verdict, but entered judgment on the design defect claim. This decision was then appealed by both parties, and the Appellate Division held that the trial court properly set aside the failure to warn claim, and did not err in issuing PJI 2:15 and 2:16.  Two justices dissented, and would have found that jury charge 2:16 was inappropriate such that a new trial was warranted. Volvo appealed this decision under CPLR 5601(a), which provides that an appeal may be made when two Justices dissent in favor of the appellant and that all issues decided against appellant are subject to review.

Here, the Court found that jury charge PJI 2:15 was given in error because it pertains to malpractice claims, not design defect claims. Malpractice claims use a community standard as opposed to the reasonable person standard on which design defect claims must adhere. The Court found that this mistake could have impacted the jury’s decision because the jury returned an inconsistent finding of guilt on two claims that were substantially identical. The Court also examined PJI 2:16, and found that it was properly given because it instructed the jury to consider the totality of the evidence, not to simply find guilt because of a failure to conform to the community standards. The Court held that a determination that PJI 2:15 was issued in error necessitated a new trial and reversal.

993 N.Y.S.2d 672 (N.Y. 2014)

View Full Decision on Westlaw

Capretto v. City of Buffalo

This appeal arises from an action in which plaintiff sought damages for injuries she sustained when she tripped and fell as a result of broken concrete located in the driveway portion of a sidewalk. The issue on appeal is which party had a duty to correct the large area of broken concrete that constituted a dangerous and long-standing condition. The driveway is located outside of a baseball stadium. The property is leased to Bison Baseball (“Bison”) from the City of Buffalo. Immediately next to the driveway is a parking garage owned by Seneca One Realty LLC (“Seneca”) whom contracted with Allpro Parking (“Allpro”) to service and operate the parking garage. In the original action, the Supreme Court of Erie County, granted Seneca and Allpro’s motions for summary judgment, and granted in part Bison’s summary judgment. The plaintiff and Bison both appealed the order.

The court rejected Bison’s contentions about the negligence claims against them, holding that although generally liability for dangerous and defective conditions to public sidewalks is placed on municipalities, there are circumstances that merit exceptions. Some of the exceptions are: (1) when the sidewalk is constructed in a special manner for the benefit of the abutting owner; (2) where the abutting landowner negligently constructed or repaired the sidewalk; and (3) where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty.

In this case, the dangerous condition existed on the portion of the sidewalk that abuts the property owned by Seneca, but is also located in the apron of the driveway that provides access to the property leased by the Bison defendants. The court concluded that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control special use of the driveway and did not create the defect by any alleged special use. Rather, based on the evidence it was plausible to conclude that the driveway was constructed for the exclusive use and benefit of the Bison defendants’ leased property. The evidence highlighted that the only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison.

The court also concluded that the lower court properly dismissed the common-law negligence claims against Seneca and Allpro but erred in dismissing those claims against them that were based on The Charter of the City of Buffalo (“the charter”). The court agreed that although Allpro employees may have barricaded the area of the dangerous condition on occasion, such conduct did not create a common law duty of care. The court disagreed with Seneca and Allpro’s contention that they did not have a duty under the charter which explicitly charged all owners or occupants abutting a public street with the duty to maintain and repair the sidewalk. It held that both Seneca and Allpro as the abutting owner and occupant, respectively had a duty under the charter, despite the dangerous condition being situated on the driveway portion of the sidewalk.  Lastly, the court also affirmed the dismissal of Bison defendants’ cross claim for contractual indemnification as it believed that the acts or omissions at issue regarding the property were covered by the lease.

1 N.Y.S.3d 615 (4th Dep’t 2015)

View Full Decision on Westlaw

Nesmith v. Allstate

In this case, the Court of Appeals interpreted a “noncumulation clause” where members of different families were successively exposed to lead paint in the same apartment. Just as the Court similarly found in Hiraldo v. Allstate Ins. Co., the Court affirmed the Appellate Division’s ruling and held that the insurer’s maximum total liability is only one policy limit, even if the exposure happened to the children of different tenants during different tenancies.

Allstate Insurance Company issued a policy of liability insurance to the landlord of a two-family house in Rochester in September 1991. Within the policy, there was a “noncumulation clause” that stated there would be a limit of $500,000 in total liability, and “[a]ll bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.” This policy was renewed annually in September 1992 and September 1993.

Felicia Young and her children lived in one of the two apartments in the house, and in July 1993, the Department of Health notified the landlord of the two-family house that one of Young’s children had an elevated blood lead level and that several areas in the apartment were in violation of State regulations governing lead paint. In August 1993, the Department notified the landlord that violations were corrected.

A month later, the Young’s moved out and Lorenzo Patterson, Sr. and Qyashitee Davis moved in to the apartment with their children. Once again, a child was found to have an elevated blood lead level and the Department of Health notified the landlord.

Nesmith brought this present action against Allstate for a declaratory judgment, claiming that a separate $500,00 limit applied to each family’s claim and that her grandchildren should receive an additional $350,000. While the New York Supreme Court granted the declaration, the Appellate Division reversed and held that the injury to Young’s children and Nesmith’s grandchildren resulted from “continuous or repeated exposure to the same general conditions,” so there was only one “accidental loss” within the meaning of the policy. This Court affirmed the Appellate Division’s ruling.

Nesmith argued that the injuries to her grandchild and Young’s child were separate losses since they did not result “from continuous or repeated exposure to the same general conditions.” The Court rejected this argument because while the children were not exposed to the exact same conditions, they were subject to the “general conditions.” Also, the record did not show that there were a new conditions since the landlord supposedly fixed the situation after being notified about Young’s child. The Court concluded that the landlord’s efforts were not completely successful, which caused the same general conditions to exist. Since the different children were exposed to the same general conditions, their injuries were part of a single “accidental loss” and only one policy limit is available to the two families.

24 N.Y.3d 520 (N.Y. 2014)

View Full Decision on Westlaw