Category Archives: Personal Injury

Was Hunter Negligent in Causing His Brother-in-Law’s Death?

This was originally published on the SGR Blog.

Or Did Victim Assume the Risk of Accidental Shooting?

On June 8, 2018, Todd Herrington, his son Devin, John Tompkins (Todd’s brother-in-law), and Robert Westcott were in Bearn, Quebec, Canada on a fishing and hunting trip. Each of them had a designated area for hunting that was a significant distance away from the others.

Patricia Harrington, as Administrator of Todd’s estate, sued Tompkins (her brother), for negligently causing Todd’s death. Patricia moved for summary judgment.

Continue reading

Visitor Trips, Falls and Injured When Leaving a House

This was originally published on the SGR blog.

Was Defect in Steps Obvious or Actionable?

Jason Collins tripped and fell around 6:15 p.m. as he was leaving the home of Donald and Marilyn Comilloni on Granite Springs Road in Granite Springs. His injuries included rupture of a tendon and ligaments of the right ankle as well as bone contusion and fracture.

Collins, accompanied by his wife Melissa and a realtor, had gone to the house to look at it for possible purchase. As they left the home, they exited from the side of the house to traverse along the exterior walk-way owned and maintained by the Comilloni’s.

Continue reading

Disabled Customer Injured When Motorized Shopping Cart Jerked Forward

This was originally published on the SGR Blog.

Was ShopRite Liable for the Patron’s Injury?

Alfred Kenlaw was injured while using and exiting a motorized cart in front of the entrance to the ShopRite Supermarket of Wallkill located at 20 Lloyds Lane, Middletown, New York. Kenlaw alleged that ShopRite was negligent in the “ownership, operation, maintenance and control of the its premises and motorized shopping cart” and that it failed to maintain its premises and motorized shopping cart in a reasonably safe condition.

Kenlaw arrived at ShopRite to do some shopping and used a motorized cart as he had done many times before. He was operating the motorized cart for approximately 45 minutes prior to his fall. As Kenlaw was leaving the store, he pulled the cart up to the car his wife parked in the fire zone just outside the exit door. The cart remained on the sidewalk perpendicular to the car. While seated, Kenlaw took the bags out of the front basket and reached over the basket to place them in the back seat of the car. He then attempted to get out of the cart from the right side. With his right foot on the ground, his left hand on the wire basket and his right hand to his side, the cart “jerked forward” four or five inches and he lost his balance.

Continue reading

100+ Pound Bullmastiff (Dynasty) Knocks Down Woman Walking Chihuahua (Eli)

This was originally published on the SGR Blog.

Were Dynasty’s Owners Liable for Ensuing Injury?

Cathy Orisini sought to recover damages for injuries allegedly sustained on February 14, 2017, when she was knocked down by a dog harbored by Woodrow Cromarty and Danielle Grunert outside their home on Columbus Avenue in West Babylon, New York. Orsini alleged that Cromarty/Grunert were negligent in failing to secure and allowing the dog to attack her, when they knew, or should have known, of the dog’s vicious propensities.

According to her deposition testimony, Orsini was walking her son’s Chihuahua, named Eli, past the property owned by Cromarty on February 14, 2017, when a one-hundred-plus pound Bullmastiff, named Dynasty, allegedly escaped from the fenced yard and knocked her to the ground, causing injury to her head and both wrists.

Continue reading

Go-Karter Injured When Bumped by Another Driver

This was originally published on the SGR Blog.

Was Track Operator Liable for the Injury?

Jasmine Serrano sued K1 Speed-N.Y. Inc. for injuries and damages at an indoor go kart racing facility. Serrano alleged that her injuries resulted from K1’s negligence, carelessness and recklessness, and failure to have adequate supervision and adequately trained staff.

K1 moved for summary judgment on the grounds that Serrano’s primary assumption of risk constituted a complete bar to recovery. K1 submitted the pleadings, Serrano’s bill of particulars and the deposition transcripts of Serrano, non-party Jesse Utarid, Bryan Boesch, and Jordan Greene on behalf of K1, the accident report, go-kart inspection log sheet, an assumption of risk and waiver signed by Serrano and K1’s track rules and safety information.

Continue reading

Water-tuber Falls at the Battenkill River

This was originally published on the SGR Blog.

Was Operator of Site Negligent and Liable?

In July 2018, Jessica Rooney sustained injuries when she slipped on a rock located on an access path while attempting to reach the Battenkill River to go water tubing. Rooney filed a negligence action against Battenkill River Sports & Campground Holding Co, LLC, the company that rented her the tube and shuttled her by van to the river’s access point.

Battenkill moved for summary judgment dismissing the complaint on the basis that it did not owe or breach any duty to Rooney and that her claim was barred by the doctrine of primary assumption of risk. Rooney opposed the motion and argued that Battenkill was a common carrier and, as such, owed a duty of care to maintain the access path.

Continue reading

Kayaker Pleads Guilty to Homicide in Boyfriend’s Drowning Death

This was originally published on the SGR Blog.

Did Girlfriend Have Defense to Estate’s Civil Suit?

On April 19, 2015, Vincent A Viafore and Angelika Graswald were kayaking in separate kayaks in the Hudson River in Orange County, New York. The weather that day was cold and windy, with water temperature in the 40’s. Viafore was not wearing a life vest or a wet suit. Viafore and Graswald entered the Hudson River from Plum Point Park in Orange County and went to what is commonly known as “Bannermans Island,” an island in the Hudson River slightly southeast of the Plum Point. The couple spent about two hours hiking the island before disembarking back to Plum Point. Viafore and Graswald left the island at about 7:00 p.m. The waters were rough, it was windy, and it was getting dark. Viafore’s kayak paddle was missing a locking clip and had no drain plug, as it was removed by Graswald. While crossing the Hudson, Viaore’s kayak began to take on water and began to sink. Viafore exited his kayak and entered the river. Ultimately, he drowned in the river.

Graswald was arrested and charged with Second Degree Murder and Second Degree Manslaughter. On June 24, 2017, the case against Graswald was resolved by her plea to Criminally Negligent Homicide.

Continue reading

Patron Falls Off Swivel Chair at Monticello Casino

This was originally published on the SGR Blog.

Was Operator Liable for “Excessive Swivel” Injury?

Jeanine Monticello brought an action for injuries sustained on May 22, 2018, from an alleged trip and fall on a swivel chair on the main floor of the casino owned by Monticello Raceway Management, Inc. located at Route 17B, Monticello. Jeanine died on July 16, 2019, and her husband, Charles Cimorelli, Jr., was appointed administrator of her estate. The estate sued Monticello and alleged that the swivel chairs were not properly secured to the floor and that the chair had “excess swivel.” Monticello moved for summary judgment in that the alleged defective condition was open and obvious and not inherently dangerous.

A New York landowner owes people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition. However, in order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence.

Continue reading

Treadmill-er Trips on Adjacent Electrical Box:

This was originally posted on the SGR Blog.

Were Gym Operators Liable for Injury?

Yael Sebagh sued Capital Fitness, Inc. and alleged that she was injured when she attempted to disembark from a treadmill at a fitness center. As she stepped off the treadmill, Sebagh allegedly tripped or stepped on an electrical box that was located on the floor next to the treadmill, which caused her to fall and sustain personal injuries. The building was owned by Simon Property Group, L.P., and leased by Capital Fitness, Inc., and Capital Fitness-Roosevelt, LLC.

Capital interposed an answer which included the third affirmative defense of the primary assumption of risk doctrine, the fourth affirmative defense that the allegedly dangerous condition was open and obvious, and the sixth affirmative defense that Sebagh was comparatively negligent.

Continue reading

Slippery Bowling Alley Brouhaha in Clifton Park

This was originally posted on the SGR Blog.

Was Owner Liable for Injury Near Ball Return?

Every case that arises from a recreation/sports-related injury must address several threshold questions. First, was the premises maintained in a reasonably safe condition? Second, did the owner have actual or constructive notice of an unsafe condition? Lastly, did the unsafe condition cause or contribute to the injury? A recent case, involving a hand injury at a bowling alley, addressed all 3 questions.

Jaime Muscato sued Spare Time Entertainment alleging a slip-and-fall at a bowling alley located on Route 9 in Clifton Park, New York. And claimed negligence in maintaining the premises, in that the floor near the ball return was excessively slippery, causing her to fall and sustain injury to her hand. Spare Time moved for summary judgment.

Continue reading