Malpeli v Yenna, 2011 NY Slip Op 00654 (2d Dept. 2011)
This is a wacky case to say the least. The facts as can be discerned from this tersely written opinion is that all of the parties in this case were going on a 20-hour trip from the corn husker state to New York. The Defendant (front-seat passenger of the vehicle) was supposed to keep an eye on the non-party driver (who died in the MVA) to make sure he would not sleep. The Plaintiff was the back seat passenger. Well the decedent fell asleep, the car hit a tree and Plaintiff was seriously injured. Plaintiff sues the Defendant (probably because Defendant has or is covered by a large liability policy) under the theory that Defendant breached an assumed duty to Plaintiff, i.e. making sure the decedent stayed awake.
The Appellate Division, in reversing Supreme Court, cryptically found in Defendant’s favor by advancing numerous theories. Theory #1: Did the wrongdoer “launch[] a force or instrument of harm” Theory #2: Was “inaction…at most a refusal to become an instrument of good. Theory #3: “whether defendant’s conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant done nothing”. Theory #4: Did Defendant “induce[] [Plaintiff] to forego some opportunity to avoid risk,” by, for example, contending that the alleged agreement induced him to take the trip in the first instance.”
If you read the decision, it is all jumbled up quotes from the Court of Appeals. My legal writing professor would have give me a C- I am sure.
Good job on the part of Andrea Ferrucci from my old firm. She wrote it, argued it, prevailed on it and caused the Appellate Division to ramble – a feat not often realized.
One Response
What’s the comparative negligence? The Plaintiff failed to keep the driver awake? The Plaintiff was sleeping too? All of you go back to the corn husker state. If they stayed there they just would have ran into some corn stalks and everyone would have been fine.