During the 2011-2012 term, the New York Court of Appeals handed down two decisions analyzing the issue of “proximate cause” in the context of personal injury actions. These decisions provide valuable guidance to the practitioner tasked with developing a strategy in cases where proof of proximate causation is problematic. In a third decision, the Court of Appeals eased the manner in which plaintiffs may prove a threshold “serious injury,” as defined in New York’s No-Fault Law. Practitioners can now expect that a greater number of meritorious “serious injury” claims, and some with questionable merit, will make it to the jury. In the fourth decision that we discuss, the court clarified the scope of a social host’s duty to supervise intoxicated guests on the host’s property.

Proximate Causation

As the Court of Appeals has explained, the concept of proximate cause resists a single definition that allows for uniform application across diverse fact patterns.1 A judicial determination of whether a party’s negligence constitutes a proximate cause, therefore, may depend upon the deciding court’s public policy considerations respecting the allocation of benefits, risks and burdens of negligent conduct. A public policy interest in curtailing the liability exposure of a repeat defendant, the state of New York (the state), might have partially motivated the Court of Appeals in how it resolved two cases.

In Williams v. State of New York,2 the female claimant sustained injuries when Tony Joseph, a nonparty to the action with a history of chronic mental illness and violence against women, struck the claimant with a bottle. Nearly two years earlier, Joseph fled from a mental health hospital that was operated by the state’s Office of Mental Health after a hospital aide allowed him to use a restroom that she could not monitor. Although Joseph was a “voluntary” patient, if the hospital determined that he met the medical criteria for “involuntary” status, then the hospital would be required to retain him and commence judicial proceedings for an order compelling a longer retention.3 The evidence at trial also indicated that, pursuant to Office of Mental Health policy, if the hospital determined that Joseph were a threat to the public, it was required to designate his departure as an “escape” and notify the police, who would assist the hospital with its search for Joseph.

The injured claimant sued the state alleging that it negligently supervised Joseph and negligently failed to report to the police that Joseph escaped. After a bench trial, the Court of Claims dismissed the claims on the ground that no legal nexus existed between the state’s negligence and the assault nearly two years later. A majority of the Appellate Division, First Department, reversed, held the state liable, and remanded for a damages trial. In stark contrast to the Court of Claims, the First Department held that there was “no doubt” that the state’s negligence proximately caused the claimant’s injuries.4 The evidence of Joseph’s extensive violent history and probability of relapse, the First Department reasoned, rendered it reasonably foreseeable that he would injure the public unless promptly found. The First Department rejected as speculative the state’s argument that numerous circumstances during the two years following Joseph’s departure might have provoked the assault and thereby superseded the state’s negligence as the cause of the claimant’s injuries.5

In a dissenting opinion, two justices would have affirmed on the ground that the evidence indicated that Joseph’s mental health had improved when he left and, as such, the evidence failed to establish that the hospital could have compelled his retention.6 Moreover, the dissent agreed with the Court of Claims’ conclusion that during the ensuing two years multiple factors outside of the hospital could have caused Joseph’s assault. In the dissenting justices’ view, to hold the state liable for an incident committed nearly two years after Joseph’s departure would make the state an insurer.

The Court of Appeals reversed, dismissed the claims, and explained that proximate cause analysis entails an inquiry into whether “‘the injury [was] tied to the claimed negligent act or omission within a reasonable lapse of time.’”7 The lapse of almost two years was “unreasonable,” said the Court of Appeals, and rendered the state’s negligence temporally too remote from the incident to constitute its proximate cause. The Court of Appeals held that, even if the hospital compelled Joseph’s retention or notified the police of his departure, it was speculative to assume that he would have remained in the hospital up to the time of the claimant’s incident. The Court of Appeals reasoned further that, regardless of whether the departure was unauthorized, Joseph’s mental condition entailed a risk of relapse such that any number of superseding factors during the ensuing two years might have affected his mental health and triggered the attack.

The Court of Appeals’ reasoning in Williams applies to a broader spectrum of negligent supervision cases. Williams illustrates that, inasmuch as human behavior has an irreducible element of unpredictability, such behavior is increasingly difficult to anticipate the further out into the future it occurs. Third-party incidents that are more recent in relation to the defendant’s negligence are more predictable and, as such, furnish a firmer basis for holding the defendant liable. Williams illustrates the converse.

Whereas Williams turned on the probability of intervening acts that undermined the claimant’s proximate causation theory, the record in Tkeshelashvili v. State of New York8 was replete with specific evidence supporting the state’s intervening act defense. The claimant in Tkeshelashvili was injured when he dove from a dam spillway into a lake without first ascertaining that the water was approximately two feet deep. The claimant sued the state, which owned the lake, on the theory that the state negligently failed to maintain the area in a reasonably safe condition. The claimant alleged that ongoing leaks in the dam caused the water depth to decrease to a dangerously shallow level and that the state owed a duty to warn of the danger.

Pretrial discovery established that the dam featured a spillway, about four feet above the lake bed, over which excess water that collected into the lake would pour out. During seasons with little snowmelt or rainfall, the lake depth would decrease and the water surface would fall below the spillway. Further contributing to the varying depths were persistent leaks in the dam, for which repairs were undertaken from time to time. The claimant, who had dove into and swam in the area on numerous prior occasions, testified that during his visits he saw that sometimes the water rose above, other times below, the spillway. The claimant further testified that on the incident date he saw that the water was below the spillway and that he could not determine the water’s actual depth because it was murky.

The Court of Claims denied the claimant’s summary judgment motion on liability and granted the state’s motion to dismiss the claims. The Court of Claims held that the claimant’s prior visits to the lake informed him that the water level was at most four feet deep, and sometimes shallower such that the claimant’s dive without first determining the depth of the water was an unforeseeable, reckless act that proximately caused the incident. The Third Department agreed and affirmed.

The Court of Appeals granted the claimant leave to appeal and affirmed, agreeing that the claimant’s dive was a reckless intervening act that nullified any proximate effects of the state’s purported negligence. The Court of Appeals explained that, even if the state owed a duty to warn that diving was unsafe, such warning would only alert the claimant to what his experience already should have alerted him. The Court of Appeals found unpersuasive the claimant’s contention that he lacked “‘specific and actual awareness of the shallow water’” or “‘knowledge that the water level decreased’” on the incident date. Ostensibly, the claimant’s point was that his experience did not put him on notice that the water depth could decrease to two feet. He argued that, because his previous dives were completed without incident, a fortiori the lake must have had a recent, significant decrease in water volume on account of worsened dam leaks. The Court of Appeals determined that the aforementioned circumstances were warning enough about the danger of diving into the water because the claimant knew that the water level varied.

The Court of Appeals’ holding in Tkeshelashvili implies that a claimant’s generalized awareness of a potentially dangerous condition, notwithstanding his incomplete information about the specific state of the condition at a given time, may suffice to nullify the effects of a defendant’s failure to maintain its property in a reasonably safe condition or to warn of an unsafe condition. The evidence in Tkeshelashvili indicated that, while the claimant may have accepted the risk of diving into four feet deep water with minor fluctuations, he did not actually know that he was diving into water that was only two feet deep. Under the Court of Appeals’ decision, the claimant’s putative interest in protecting himself should have induced him to determine the water’s depth before attempting to dive.

No-Fault Law

In lawsuits governed by New York’s No-Fault Law, a plaintiff who claims damages for pain and suffering on account of injuries sustained in an automobile-related accident must tender legally sufficient medical evidence that the injuries were both caused by the accident and satisfy one or more of the statutorily defined categories of “serious injury.”9 A plaintiff’s subjective complaints about his symptoms and physical limitations will not suffice. Rather, medical proof regarding the cause and extent of an injury must be based on objective medical criteria, tests and evaluations. The court determines in the first instance whether the plaintiff’s evidence contains medical opinions with demonstrated objective bases; if the plaintiff’s evidence fails in this regard, the claims are to be dismissed.

In Perl v. Meher,10 the Court of Appeals decided three appeals concerning whether the plaintiffs’ proof of their respective injuries was sufficient for a jury to find a “serious injury.” In the two of the three appeals that we discuss here, Perl v. Meher and Adler v. Bayer, each of the plaintiffs alleged that he sustained a “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system,” both of which are categories of “serious injury” under the No-Fault Law. In Perl, a majority of the Second Department, with two justices dissenting, reversed the Supreme Court and granted the defendant summary judgment because the plaintiff’s range of motion tests were not performed until several years after the accident. Impliedly on the same ground, the Second Department reversed the Supreme Court in Adler and granted the defendant’s motion for judgment as a matter of law made after a jury verdict and judgment in favor of the plaintiff was entered.

The Court of Appeals reversed the Second Department, reinstated the Perl and Adler plaintiffs’ claims, and held that, for a plaintiff to prove a “permanent consequential limitation” or “significant limitation” by range of motion testing, whereby the testing physician expresses as a numerical percentage the plaintiff’s decreased range of motion as compared to the norm and sets forth the tests deployed, the plaintiff’s testing need not have been performed immediately after the accident. Under the Court of Appeals’ holding, quantitative tests performed years after the injuries were sustained, and presumably in preparation for litigation, can legally suffice to require a jury determination of whether a “serious injury” exists.11 The physician who treated both the Perl and Adler plaintiffs examined them soon after their respective accidents but did not perform range of motion tests upon either until several years later. In the Adler action, the physician testified that in his practice he did not conduct range of motion tests on newly injured patients because, in his experience, early tests yield unreliable results. The Adler defendant’s medical expert concurred and conceded that in an initial patient assessment he too relied upon visual observations rather than upon “measurements with instruments.”

Based on this evidence, the Court of Appeals reasoned that to require contemporaneous range of motion testing would penalize newly injured patients who choose their physicians solely in the interest of obtaining quality care. Such patients, the Court of Appeals explained, could be prejudiced from pursuing meritorious legal claims just because their early medical records may lack, for good reason, objective findings that quantify the extent of their physical limitations in the early life of their injuries.

Apart from the issue of whether an injury is “serious,” in its decision in Perl, the Court of Appeals clarified that to raise a triable issue of whether an accident caused the plaintiff’s injuries, the plaintiff’s evidence need not directly refute or rule out the defendant’s medical evidence of alternative causation. In Perl, the defendant submitted the sworn opinion of a radiologist who opined that one of the plaintiff’s MRI films showed that the plaintiff’s soft tissue injuries resulted from preexisting degenerative changes unrelated to the accident. The plaintiff responded with a radiologist report attesting that, while the MRI was consistent with degenerative changes, the single MRI could not rule out a traumatic cause. Moreover, the Perl plaintiff’s treating physician opined that the plaintiff’s medical history and lack of symptoms prior to the accident established that the accident caused the condition shown on the MRI.

Although the Court of Appeals conceded that the plaintiff’s evidence was weak, it nonetheless held that the plaintiff raised a triable issue of fact regarding causation. Here, the Court of Appeals seemed to caution the lower courts against making quasi-medical judgments about which party’s causation evidence is correct, indicating that courts shall allow juries to decide causation based on the strength of the evidence and credibility of the parties’ physicians.

The first holding in the Court of Appeals’ Perl decision brings the No-Fault Law in line with what the Court of Appeals viewed as sound medical practice that might dictate forgoing early range of motion testing. It is noteworthy, however, that range of motion testing admits of a degree of manipulation by patients who seek to prove a “serious injury,” a point underscored by the Court of Appeals’ allusion to evidence that the 82-year old Perl plaintiff was malingering when the defendant’s medical expert tested him. The Perl decision may afford plaintiffs more time to treat with litigation-savvy physicians and thereby increase the volume of cases that survive dispositive motions. Moreover, the Court of Appeals’ second holding that medically-based evidence supporting the plaintiff’s causation theory, even if weak, warrants a jury determination should further clear plaintiffs’ path to the jury.

Social Host’s Duty of Care

As with a judicial determination of “proximate cause” in tough cases, it is for the court to decide on the basis of competing policy issues whether one person owes a duty of care to another. In Martino v. Stolzman,12 the Court of Appeals held that a social host owes no duty of care to prevent an inebriated guest from leaving the host’s property. The social hosts in Martino, defendants Michael and Susan Oliver, failed to prevent their intoxicated guest, Michael Stolzman, from entering his car and backing out of their driveway with plaintiff Judith Rost in the passenger seat. The defendants also failed to assist Stolzman as he backed out, even though they knew that vehicles that were parked along the road might obstruct his view of oncoming traffic. When Stolzman reached the road, plaintiff Jennifer Martino’s vehicle collided with Stolzman’s and caused personal injuries to Martino and Rost.

In separate actions, plaintiffs Rost and Martino alleged in relevant part that the defendants owed a duty to supervise Stolzman while he backed out of the driveway and to warn Stolzman of the parked cars that might obstruct his view of traffic. The Supreme Court denied the defendants’ motion to dismiss the negligence claims and a majority of the Fourth Department, with two justices dissenting, affirmed.

In connection with the appeal to the Fourth Department, the defendants conceded that, if Stolzman were intoxicated, they would have owed a duty to supervise him and protect the plaintiffs. The defendants, however, denied that they had reason to believe that Stolzman was intoxicated. The majority held that an issue of fact existed as to whether the defendants should have known that Stolzman was intoxicated. If so, the majority found, the defendants had an opportunity—and with it a duty—to supervise Stolzman.13 The two dissenting justices would have held that the defendants owed no duty to prevent or assist in Stolzman’s departure because the accident occurred not on the defendants’ property, but on the public road over which they exercised no control. The dissent likewise would have held that the defendants owed no duty to warn that the view of the road might be obstructed by the parked cars because the cars were not on the defendants’ property.14

In reversing the Fourth Department, the Court of Appeals agreed with the dissent and held that social hosts have no duty to prevent inebriates from leaving the social hosts’ premises. While social hosts who can control intoxicated persons on their property owe a duty to supervise the conduct of inebriates to avoid harm to third parties who are likewise on the property, the Court of Appeals found that the defendants lacked control over Stolzman once he entered his car and began driving away. Furthermore, the Court of Appeals held that the defendants had no obligation to warn Stolzman that his view of the road might be obstructed by parked vehicles or to assist him as he backed out because the parked cars were not a latent condition on the defendants’ property.

Martino may have been a relatively straightforward case for the Court of Appeals because the incident occurred outside of the defendants’ premises on the road that they did not control. However, a social host should take little comfort. For while the Court of Appeals held that a host owes no duty to prevent an inebriate from departing, Martino indicates that a host may still be liable for injuries sustained by third parties on the host’s premises where the host fails to supervise an inebriate’s departure under circumstances in which supervision is feasible.

Jeffrey S. Lichtman and Richard A. Menchini are partners at O’Hare Parnagian, where their practice concentrates on products liability, torts, and commercial litigation. James Trainor, an associate at the firm, assisted in the preparation of this article.

Endnotes:

1. See Derdiarian v. Felix Contracting, 51 N.Y.2d 308, 314-15, 414 N.E.2d 666, 434 N.Y.S.2d 166 (1980).

2. 18 N.Y.3d 981, 969 N.E.2d 197, 946 N.Y.S.2d 81, 2012 N.Y. Slip Op. 03231 (April 26, 2012).

3. See Williams v. State of New York, 84 A.D.3d 412, 416-17, 924 N.Y.S.2d 23, 2011 N.Y. Slip Op. 03654 (1st Dept. 2011); Williams v. State of New York, 23 Misc.3d 1135(A), 2009 N.Y. Slip Op. 51103(U),*2 (N.Y. Ct. Cl. 2009).

4. Williams, 84 A.D.3d at 415.

5. Id. at 416-17.

6. Id. at 421.

7. Williams, 18 N.Y.3d at 984 (citing Pagan v. Goldberger, 51 A.D.2d 508, 511, 382 N.Y.S.2d 549 (2d Dept. 1976); Restatement [Second] of Torts §433[c], Comment f).

8. 18 N.Y.3d 199, 960 N.E.2d 414, 936 N.Y.S.2d 645, 2011 N.Y. Slip Op. 08451 (Nov. 22, 2011).

9. See McKinney’s Insurance Law Sec. 5101 et seq. See generally Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345, 774 N.E.2d 1197, 746 N.Y.S.2d 865 (2002); Licari v. Elliott, 57 N.Y.2d 230, 441 N.E.2d 1088, 455 N.Y.S.2d 570 (1982).

10. 18 N.Y.3d 208, 960 N.E.2d 424, 936 N.Y.S.2d 655, 2011 N.Y. Slip Op. 08452 (Nov. 22, 2011).

11. See id. at 217-18.

12. 18 N.Y.3d 905, 964 N.E.2d 399, 941 N.Y.S.2d 28, 2012 N.Y. Slip Op. 01145 (Feb. 16, 2012).

13. Martino v. Stolzman, 74 A.D.3d 1764, 1767, 902 N.Y.S.2d 731, 2010 N.Y. Slip Op. 05071 (4th Dept. 2010)

14. Id. at 1768.