High-Flying Tort Decisions

Publication Source: New York Law Journal

On consecutive days in February, two well-reasoned and instructive tort decisions with opposite results, yet consistent reasoning, were rendered in the Nassau County Supreme Court. While both rulings involved claims of negligence arising from flying objects, one resulted in summary judgment in favor of the defendant, while the other not only denied the defendant summary judgment, but, sua sponte, dismissed a number of the alleged defenses. Both carefully crafted decisions are worthy of close review by personal injury practitioners.

One of the most fundamental principles of tort law is that a defendant will not be held liable for negligence unless there is a legal duty of care owed to the plaintiff. Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928). Significantly, while issues of negligence are intensely fact specific, and therefore most often left to the trier of fact for resolution, the question of whether a legal duty exists is within the province of the court. Di Ponzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d 377 (1997). Thus, it is the court that plays the weighty role of gatekeeper in determining whether to impose a legal duty upon a defendant and thereby create enforceable rights in the injured plaintiff.

As the oft-quoted words of Judge Benjamin N. Cardozo in Palsgraf so eloquently explained: 'The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.'

It is against this legendary backdrop that the two recent Nassau decisions were rendered.

Read the full article here.

-----

Kevin Schlosser is a Shareholder and Chair of the Litigation and Alternative Dispute Resolution Department at Meyer, Suozzi, English & Klein, P.C. He handles complex commercial litigation, is on the Roster of the AAA National Panel of Commercial Arbitrators, serves as outside general corporate counsel, and is author of the New York Fraud Claims Blog, www.nyfraudclaims.com.

Reprinted with permission by the New York Law Journal.