Assumption of Risk
In our February 2008 alert, we reported on the First Department's decision in Roberts v. Boys & Girls Republic, Inc. in which the Court seemingly expanded the assumption of the risk doctrine by ruling that where a plaintiff has assumed a risk, the defendant is relieved of any of its obligations to the plaintiff, and recovery cannot be had on a theory of negligent supervision. This ruling was in direct contradiction with the Fourth Department, which has held that negligent supervision remains a viable theory in assumption of the risk cases. On June 5, 2008, the Court of Appeals heard the Roberts appeal.
The underlying action in Roberts arose from injuries that the plaintiff-mother sustained while attending her son's little league game and wandering into the path of a bat being swung by another player taking a practice swing along a makeshift sideline on-deck area. The plaintiff-mother alleged that the makeshift sideline on-deck area was a concealed or enhanced risk not typically associated with the game and the defendant was negligent in their supervision of the children. The First Department disagreed with the plaintiff-mother and found that she assumed the risk, and that when she assumed the risk she relieved the defendants of any obligation to supervise.
The plaintiff-mother appealed to the Court of Appeals and in a one paragraph decision New York's Highest Court affirmed the First Department's decision. The Court of Appeals held that the plaintiff assumed the risk of her injuries noting that the plaintiff had observed batting equipment and players swinging bats in the area where the accident occurred. The Court of Appeals did not further elaborate on its decision, nor did it specifically address whether assuming a risk relieves a defendant of its obligation to supervise. As such, New York must await to see whether the Courts will interpret Roberts as standing for the proposition that a plaintiff who assumes a risk may not maintain a cause of action sounding in negligent supervision, or whether it simply means that in this specific case the plaintiff-mother did not have a cause of action for negligent supervision.
Graves Amendment Pre-Emption
In our March 2008 alert, we reported that the Federal Law barring vicarious liability of motor vehicle lessors and renters (49 U.S.C. § 30106, also known as the "Graves Amendment") was upheld as constitutional by a Federal District and a New York State Appellate Court. In a June 5, 2008 decision in the case of Jones v. Bill, the New York State Court of Appeals clarified that, for purposes of the Graves Amendment, an action is "commenced" as against all present and later joined parties on the date of the initial filing of the summons and complaint, and not on the date the party is joined.
As you may recall from our March alert, the Graves Amendment, which was signed into law by President George W. Bush in 2005 as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act, generally shields an owner of a motor vehicle that rents or leases the vehicle to any person from liability for harm to other persons or property that results or arises out of the use of that vehicle during the rental or lease period, where there is no negligence or criminal wrongdoing on the part of the owner. The enactment of this federal law was significant in New York because prior to 2005, Section 388 of New York's Vehicle and Traffic Law made such motor vehicle owners vicariously liable for death or injuries resulting from negligence in the operation of such vehicles by lessees or any other person using the vehicle with the owner's permission. New York Vehicle and Traffic §388 was preempted by the enactment of the Graves Amendment.
The plaintiff in Jones v. Bill, a personal injury auto-mobile accident case, filed the summons and complaint on August 8, 2005. On August 10, 2005, the Graves Amendment, which applies to "any action commenced on or after the date of enactment," was enacted. On November 1, 2005, upon receiving the defendant's answer denying ownership of the subject vehicle and attributing ownership to a third party lessor, the plaintiff quickly joined the lessor by filing an amended summons and complaint. The lessor raised the Graves Amendment as an affirmative defense and moved to dismiss the claims against it as barred by federal statute. Plaintiff opposed claiming that although the lessor was not joined until November 1, the action was "commenced" on August 8, 2005, and therefore the Graves Amendment did not apply.
The Court of Appeals agreed with the plaintiff. Citing C.P.L.R. §304, the Court explained that, under New York law, an action is "commenced" "by filing of a summons and complaint or summons with notice." The Court declined to look beyond the "plain language" of the statute and held that "any action filed prior to August 10, 2005 has been 'commenced' and therefore removed from the federal statute's pre-emptive reach. Here, plaintiff 'commenced' his action as of August 8, 2005, when he filed his summons and complaint." Further, the Court clarified that joinder and interposition, by nature, may only occur "within the context of an existing action."
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