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EXECUTIVE SUMMARY: This
weekly newsletter covers:
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Second Circuit Rejects Expert's Testimony As Speculation
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North Carolina Court Finds Insurer Who Inspected After Loss May Have a Duty to Warn Of Dangers
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New York Court Permits Action For Cracked Lugs Causing Electrical Injury
(1)
SECOND CIRCUIT REJECTS EXPERT'S TESTIMONY AS SPECULATION
In Brooks v. Outboard Marine Corp., No. 00-7460, the Second Circuit Court of Appeals reviewed a trial court's order rejecting as speculation an expert's opinion about an accident. In Brooks, a teenager's mother rented a fishing boat for him. As he was fishing without supervision, his line caught around the engine. As he was pulling the line, he hit the engine forcing it out of neutral and causing the propeller to spin. This caused his hand to be amputated. The rental owner and manufacturer were sued. After the owner settled, the matter proceeded through discovery. One of the plaintiff's experts testified a kill switch should have been on the engine. That operates by a lanyard to shut the engine off under different circumstances. The defendant's motion for summary judgment was granted dismissing the case because the magistrate found the expert's testimony was speculation. The Court of Appeals agreed noting the expert's shortcomings included "he had never seen the actual boat or motor either in person or in photographs, had never spoken to either of the boys involved in the accident, was unaware of the dimensions of the boat and the placement of the seats in relation to the motor, did not know precisely what happened and where the boys were positioned in the time immediately preceding the accident, and had never attempted to reconstruct the accident and test his theory. The failure to test a theory of causation can justify a trial court's exclusion of the expert's testimony."
(2)
NORTH CAROLINA COURT FINDS INSURER WHO INSPECTED AFTER LOSS MAY HAVE A DUTY TO WARN OF DANGERS
In Prince v. Wright, No. COA99-1528, the Court of Appeals of North Carolina reviewed a guardian's complaint against an insurer and others for negligence and wrongful death. The two minor children lived in a rental apartment. After it was damaged by rain, the insurer of the building inspected it. A few days later a fire broke out killing one child and injuring the other. After the criminal allegation against the mother was dropped, a guardian filed suit on behalf of the children against the landlords and their insurer. The plaintiff's alleged the insurer inspected the house prior to the fire and did not advise smoke detectors were not present. Further, the insurer did not advise the tenants of the danger of the electrical system being damaged by the water intrusion. No repairs were made nor the tenants warned. The fire then occurred. The trial court dismissed the case against the insurer and tenant. The Court of Appeals reversed and reinstated the case. The court noted the insurer inspected for the purpose of detecting and detailing the suitability of the house for residential purposes including damage or potential damage to the electrical system due to the water or moisture intrusion. The tenant alleged she requested notice of any dangerous conditions discovered as a result of the inspections. The court held the insurer "may have created for itself a duty to plaintiff which it breached by first expressly undertaking to conduct an inspection of the suitability of the house for residential purposes and then failing to warn tenants of the dangerous condition it discovered during the inspection."
(3)
NEW YORK COURT PERMITS ACTION FOR CRACKED LUGS CAUSING ELECTRICAL INJURY
In Tarson v. Niagara, et al., No. 190600-01439, the Supreme Court, Appellate Division, Fourth Department of New York, reviewed a trial court's finding dismissing a complaint against an electric company. The plaintiff had filed a personal injury action for injuries sustained by an electric shock. The defendant had installed a transformer outside a restaurant. One of the lugs was found to be cracked and was replaced. Later when the plaintiff jostled the box, he was injured by an electric shock. The defendant had argued he had no knowledge the other lugs were also cracked. The court noted at least one other lug was cracked by the same manufacturer yet no one inspected the remaining four lugs. Hence, the defendant could be liable for failing to inspect the other lugs. Moreover, the lug may have cracked because it was not properly tightened to the manufacturer's recommended torque. The judgment was reversed permitting the action to proceed.
Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610,
San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax),
palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.
Please direct comments, suggestions, stories, and other items to the author by
e-mail at palynch@cozen.com
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