Successes

Donna L. Burden, Esq, partner, and Jaclyn S. Wanemaker, won an appeal which resulted in the dismissal of the Plaintiffs’ Complaint in March of 2019.  The Appellate Division, Fourth Department, reversed the Order previously granted by the lower court judge in Erie County Supreme Court and granted the client’s Motion to Dismiss the Plaintiffs’ Complaint upon the basis that the Plaintiffs failed to comply with the requirements of New York’s General Municipal Law.  The law sets forth specific information that must be included in a Notice of Claim, and it requires a Claimant to serve a Notice of Claim on a municipality within 90 days of the incident.  When the municipality notices a hearing pursuant to General Municipal Law § 50-h, the Claimant must appear and testify.  In this case, the Plaintiffs commenced their lawsuit before appearing for their § 50-h hearings, in order to comply with the 1 year and 90 day statute of limitations applicable to actions against municipalities.  Despite this, the Supreme Court refused to dismiss the Complaint, finding that “communication problems” between the attorneys excused the Claimants’ failure to appear for their § 50-h hearings prior to commencing the action.  This office filed a Notice of Appeal, and we argued that the only communication problems were between the Plaintiffs and their attorneys.  In addition, we reiterated the deficiencies in the Notice of Claim.  The Appellate Division reversed the lower court and noted that  “Although compliance with General Municipal Law § 50-h (1) may be excused in ‘exceptional circumstances’, there were no such circumstances here.   Therefore, the Complaint against Defendants, who were acting within the scope of their duties as municipal employees, must be dismissed.”  Not only is this a favorable decision for our client, it sets precedent that municipalities in New York can rely upon in the future.

Phyliss A. Hafner, Esq., partner in the Buffalo, New York office of Burden, Hafner & Hansen, LLC, secured the voluntary discontinuance of a wrongful death case in August 2018. This wrongful death lawsuit arose out of an accident that occurred on May 25, 2016, at the Decedent’s place of employment in Syracuse, New York.

The Decedent was in the course of his employment as a mechanic supervisor when he was crushed by a 600-lb. dumpster while it was being unloaded from a truck owned by his employer. The Decedent was standing directly behind the truck attempting to guide the dumpster as it was being lowered from a liftgate, which was positioned above his head, to the ground. The Decedent and his co-worker were using the liftgate on the truck, rather than a forklift, to unload the dumpster. As the liftgate started to lower, the dumpster shifted and rolled off the back of the truck. The Decedent was not able to move out of the way of the falling dumpster, and the dumpster landed on him. The Decedent sustained multiple traumatic injuries, including, but not limited to death, laceration of the parietal scalp, abrasions to his face and forehead, basilar skull fracture, subdural hemorrhage, acute fractures of the right ribs, fracture of the T2 vertebral body, and fracture of the femur.

Plaintiff, the Decedent’s wife, filed a lawsuit in the Northern District of New York Federal Court asserting causes of action in strict products liability, negligence, breach of express warranty, breach of implied warranty and improper warnings against several entities in the chain of distribution of both the truck and the liftgate. Burden, Hafner & Hansen, LLC, was able to impress on the Plaintiff’s attorney that the Decedent bore some liability for the happening of the accident and any remaining liability, if any, was likely due to the actions of the Decedent’s employer, whom the Plaintiff could not maintain a direct cause of action due to New York’s Workers Compensation laws. The evidence exchanged by the parties revealed that that an available, working forklift should have been used to unload the dumpster, and the owner’s manual for the liftgate advised persons to stand to the side of, not directly behind the liftgate, when it was in operation.

Ultimately, Plaintiff’s Counsel elected to voluntarily execute a Stipulation of Discontinue of all claims with prejudice against each of the named Defendants prior to the completion of paper discovery and prior to conducting any party and/or non-party depositions. The prompt resolution of this matter enabled the client to avoid a lot of time and expense in defending what would have been a very lengthy and protracted case given the complex legal issues involved in the matter.

Phyliss A. Hafner, partner in the Buffalo, New York office of Burden, Hafner & Hansen, LLC, successfully obtained summary judgment for a client in a wrongful death case. The wrongful death lawsuit arose out of a single vehicle accident that occurred on April 6, 2014, in the Town of Victor, New York. The Decedent was unbelted, talking on a cell phone and driving with a blood alcohol level of .111 when she drove her vehicle off the road, struck a guiderail, and her vehicle vaulted a distance of 90 feet before striking the ground and rolling. The Decedent sustained injuries which included, but were not limited to, death, fractured ribs, a contused left lung, fractured lumbosacral spine and pelvis, compound bilateral fractures of the femurs and tibia/fibula, scalp lacerations, bilateral ankle fractures, bilateral knee fractures, and exsanguination.

The Decedent’s family filed suit in Ontario County in June 2015, against several entities involved with the installation of the guiderail, including our client, the general contractor. The lawsuit alleged that the Defendants were negligent in the design, installation, implementation, management, planning, construction, and/or supervision of the construction and installation of the guiderail, and the guiderail system was purportedly not designed in accordance with the existing standards. More specifically, the Plaintiffs claimed that the guiderail was defective in that a piece was claimed to have been negligently omitted, and Plaintiffs alleged the guiderail as constructed made the roadway less safe and launched a force or instrument of harm. The Plaintiffs sought to recover for the Decedent’s conscious pain and suffering, pre-impact terror, fear of impending death and death.

In March 2016, after the completion of paper discovery but prior to the deposition of any party and/or non-party, Defendant moved for summary judgment to dismiss the Plaintiffs’ Complaint with prejudice. The Motion for Summary Judgment asserted, among other things, that the general contractor was not negligent and did not owe a duty of care to the Decedent. Defendant argued that the determination of whether a party owes a duty of care to the Plaintiff is generally a matter of law to be determined by the Court. In this case, the general contractor entered into a contract for the installation of the guiderail with the local municipality, who was also named as a Defendant in the lawsuit.

There are three recognized exceptions concerning when a contractual obligation can give rise to third-party tort liability: 1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, “launches a force or instrument of harm; 2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and 3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely. Burden, Hafner & Hansen, LLC argued that none of the three recognized exceptions applied to the facts of this case, and further argued that the Consultant’s Certificate and the Final Inspection Outstanding Work report demonstrated that the guiderail was constructed per the final plans drawn by the Co-Defendant engineering firm. Further, additional discovery was never going to change the fact that the guiderail was installed per the plans and specifications prepared by the Co-Defendant.

Plaintiffs argued that the guiderail was defectively designed, and the Defendant’s Motion for Summary Judgment was premature inasmuch as no depositions had been conducted. In support of their position, the Plaintiffs submitted Affidavits from their experts, an engineer and a coroner. The Plaintiffs engineer attempted to outline deficiencies in the design of the guiderail, and the coroner argued that if the Decedent’s vehicle had not been launched into the air, then her injuries would have been much less severe. Plaintiffs and their expert engineer attempted to establish that the Defendant general contractor launched a force or instrument of harm.

The trial court agreed with the arguments raised by Burden, Hafner & Hansen, LLC, and in October 2016, granted the Defendant’s pre-deposition Motion for Summary Judgment. The Plaintiffs filed a Notice of Appeal. In July 2017, the Fourth Department, Appellate Division unanimously affirmed the grant of summary judgment to the Defendant in this wrongful death action. The Fourth Department noted that our client owed no duty to the Plaintiffs since they were not a party to the contract for the installation of the guiderail work; and in the absence of any duty, contractual or otherwise, the trial court property granted summary judgment to the firm’s client.

Donna L. Burden, founding partner in the Buffalo, New York, office of Burden, Hafner & Hansen, LLC, was successful in preventing a lawsuit from being filed against a municipality for injuries allegedly sustained by a sheriff’s deputy working in the Erie County Holding Center. The Plaintiff in that case alleged that she had been assaulted by an inmate in the course of her employment at the Holding Center. She claimed pain and suffering as well as past and future loss of income, and there was a derivative claim made by her spouse.

The inmate in question had previously been arrested and detained by police officers employed by the municipality, after she assaulted a driver, stole his car, and led the officers on a police chase that ended with her striking several vehicles. After being arrested and arraigned, custody of the inmate was transferred from the municipal police department to the county-operated Holding Center. It was there that the inmate allegedly assaulted the Plaintiff two days after the inmate was transferred to the Holding Center.

Plaintiff filed an Order to Show Cause seeking leave to serve a late Notice of Claim against the municipality, pursuant to General Municipal Law §50-e. The Plaintiff argued that the municipality may have acted in a manner that contributed directly or indirectly to the incident, such as by providing inadequate medical call, inadequate supervision, or inadequate safety precautions with respect to the inmate in question, or failed to provide sufficient warning of the inmate’s physical, mental or emotional state prior to the incident.
In opposing the Order to Show Cause, Ms. Burden was able to successfully argue that the municipality had no notice of the potential claim for an incident that occurred two days after the inmate left their custody and would be prejudiced by a belated attempt to interpose that claim. Additionally, it was argued that the Plaintiff had not shown any duty owed by the municipality with respect to her in conjunction with an assault that occurred two days after the inmate had been transferred from their custody, and where none of its officers were present or had any authority or control over the facility where the assault occurred. It was also argued that the Plaintiff’s motion was deficient in that she had not obtained a separate Index Number to bring her Motion to File a Late Notice of Claim.

By Order issued in June 2017, Judge James Dillon in the Erie County Supreme Court denied the Plaintiff’s Motion to serve a Late Notice of Claim. Judge Dillon held that the motion was deficient, and also that the municipality lacked sufficient notice and Plaintiff failed to provide a good-faith excuse for her delay in filing a Notice of Claim. The Judge held that the municipality would have been prejudiced by the delay and denied Plaintiff’s Motion, effectively barring her from bringing any lawsuit against the municipality stemming from the incident in question. Plaintiff subsequently appealed the decision, but that appeal was ultimately dismissed after the municipality moved to dismiss the appeal, and Plaintiff failed to perfect the appeal in a timely fashion.

Donna L. Burden, founding partner in the Buffalo, New York, office of Burden, Hafner & Hansen, LLC, and her partner, Sarah Hansen, were able to obtain a voluntary discontinuance of a lawsuit alleging sexual harassment brought against a volunteer fire company and one of its officers. Plaintiff provided a Stipulation of Discontinuance in January 2017, dismissing her case against the Defendants without any compensation, following five years of litigation and after discovery was nearly completed. The action was pending in the Erie County Supreme Court.

The female Plaintiff alleged that a male member of the fire company made frequent comments to her of a sexual nature and on one occasion touched her buttocks while responding to an emergency call. The Plaintiff alleged that as a result of the harassment, she was constructively discharged from the fire company and was the subject of retaliation. The officer in question denied making comments of sexual nature and admitted that he, on one occasion, touched her buttocks, but apologized and was reprimanded for it by the Defendant fire company.

In her lawsuit, Plaintiff claimed that she sustained emotional distress and psychological injuries, including major depressive disorder, anxiety and post-traumatic stress disorder, and claimed that the harassment resulted in the breakup of her marriage. She also claimed economic damages consisting of the loss of a pension.

As a result of thorough investigation, it was discovered that the Plaintiff had previously worked for several years as an exotic dancer, during which time she danced topless. On at least one occasion, she was written up for violating New York State rules prohibiting contact between topless dancers and customers. She had also made prior complaints of sexual harassment while working for two past employers.

After five motions for discovery, Defendants appealed to the Fourth Department, Appellate Division, from a Motion to Dismiss the Complaint and for sanctions. The basis for the request for sanctions was that Plaintiff had represented in a sworn affidavit that she had not obtained mental health treatment other than with the provider who treated her for symptoms she attributed to the alleged harassment. Through investigation and discovery, it was determined, however, that she had a long history of mental health issues dating back to prior to her joining the volunteer fire company.

The trial court in Erie County, initially denied the Defendants’ request for sanctions against Plaintiff for filing a materially false affidavit. On appeal, the Fourth Department ordered that sanctions should have been awarded. Plaintiff agreed to discontinue the action voluntarily, and without any payment being made by the Defendants, in exchange for a waiver of the sanctions ordered against her. Plaintiff further agreed not to disparage the Defendants and not to seek membership or reinstatement with the fire company in the future.

Sarah E. Hansen, partner in the Buffalo, New York, office of Burden, Hafner & Hansen, LLC, successfully obtained dismissal in January 2018, of a lawsuit brought against a municipality, where the Plaintiff claimed that the municipality was negligent in constructing or maintaining a bridge over a creek so as to direct water onto his property and/or failing to maintain the creek bed to prevent erosion on his property. Plaintiff also made claims for nuisance and deprivation of property under the United States and New York Constitutions. Ms. Hansen and her partner, Donna Burden, defended a town, which was the only named defendant in the lawsuit brought in the Supreme Court, Allegany County.

The Plaintiff alleged that during the 1970s, the Defendant had constructed a bridge upstream from his property, located in Allegany County, New York, which changed the direction of water and directed the streambed towards his property and in the direction of his home. He further claimed that the Defendant had maintained the creek bed on his property for a period of time thereafter to prevent erosion of the creek bed, but at some time, the Defendant had ceased performing remedial work in the creek bed, and another governmental entity (not named in the lawsuit) began performing the work instead.

According to the Plaintiff, in or about 2005, he built a two-story freestanding garage on his property. He obtained a building permit from the Defendant, but this expired, he did not renew it, and he was never issued a certificate of occupancy for the garage. Plaintiff claimed that after the garage was constructed, he observed the creek encroaching further onto his property, in the direction of the garage, encroaching on roughly an acre of his land.

Plaintiff alleged that when the erosion in the creek became an issue with respect to his detached garage, he reached out the Defendant’s officials and they agreed to assist him with the erosion problem. He said that this did not happen, and on April 12, 2013, his garage and all of its contents fell into the creek and was completely destroyed.

Burden, Hafner & Hansen, LLC was retained initially to handle this claim in conjunction with a General Municipal Law §50-h hearing of the Plaintiff and subsequently in the litigation when the case was sued in Allegany County. General Municipal Law §50-h allows certain public entities to take a hearing of a claimant before any lawsuit is filed to investigate the claim being made.

A thorough and comprehensive 50-h hearing formed the basis for a strong defense. Plaintiff ultimately admitted in questioning that the municipal officials had told him that they could only help him if he obtained the necessary permits and materials needed to perform the remediation, which he did not obtain. Detailed investigation into the bridge construction claim uncovered evidence confirming that the bridge in question was not constructed by the Defendant, but by another municipality who was not named in the lawsuit.

After Plaintiff, who was initially pro seand subsequently retained counsel, continued to delay in discovery in his case, the Defendant moved for summary judgment, prior to any depositions being conducted, based largely on the testimony taken at the 50-h hearing. Ultimately, the Allegany County Supreme Court, Judge Thomas Brown, denied the summary judgment motion, and an appeal was filed. Of note, during the pendency of the appeal, and just prior to a Decision being issued on the appeal, Judge Brown dismissed the case on procedural grounds, based upon the Plaintiff’s failure to respond to Defendant’s discovery demands in full.

The case was dismissed on the merits, however, on an appeal taken to the Fourth Department, Appellate Division, which reversed Judge Brown’s decision on Defendant’s Summary Judgment Motion and dismissed the plaintiff’s Complaint in total.

The Fourth Department agreed that the lower court had erred in dismissing claims pertaining to the construction or alteration of the bridge, as Defendant had shown proof that it did not construct the bridge. Plaintiff failed to rebut that showing.

As to the claim that the Defendant was negligent in failing to act to prevent or abate damage on Plaintiff’s property caused by the erosion, the Fourth Department found that there was no duty for the Defendant to provide assistance with erosion on Plaintiff’s personal property. The Fourth Department also held that any gratuitous offer to assist Plaintiff was a conditional offer, which was not triggered as Plaintiff had not obtained the necessary permits.

Donna L. Burden, founding partner in the Buffalo, New York, office of Burden, Hafner & Hansen, LLC, and her partner, Sarah Hansen, obtained a defense verdict in the Supreme Court, Erie County, New York, in October 2016, on the serious injury threshold and damages-only case involving a passenger who had cervical fusion surgery after being involved in an accident on a school bus.

The litigation arose out of a motor vehicle accident that occurred on March 18, 2010, in Hamburg, New York between a school bus and a pickup truck. Ms. Burden and Ms. Hansen represented the school bus company and its driver. The Plaintiff was a passenger on the school bus, in conjunction with her job as a nurse, who was riding the bus to provide assistance to a special education student who had not yet boarded the bus at the time of the accident. The Plaintiff claimed she was injured in the accident when she was thrown from her seat, hit her head on a child car seat strapped to the ground, and injured her neck and back. The Plaintiff claimed injuries including several cervical disc herniations and a C5-6 and C6-7 anterior cervical discectomy and fusion surgery. She further alleged the need for two further surgeries including one for an alleged non-union for the fusion as well as another level cervical disc fusion from the accident. Plaintiff claimed she missed about six months of work after the accident and returned to work “light duty,” still as a nurse on the bus, and then was unable to ever work again after her surgery three and a half years after the accident to date.

In a prior bifurcated trial on negligence-only, the jury found the driver of the school bus to be 100% negligent with respect to the accident. The matter later proceeded to a two-week trial with a new jury, limited to the issues of whether Plaintiff met the “serious injury threshold” to recover for pain and suffering under New York Insurance Law 5102(d) for a “serious injury” and whether Plaintiff sustained any damages as a result of the accident. The Plaintiff also sought medical and wage loss in excess of $50,000, the amount of basic economic loss for no-fault in New York.

Defendants submitted evidence that Plaintiff had been involved in two prior motor vehicle accidents in 2003 and 2007, for which she had sought treatment for her neck and lower back. She had brought a lawsuit with respect to the 2003 accident and claimed to be permanently and totally disabled at that time, with injuries to her lumbar spine predominantly, but also claimed injuries to her cervical spine as well. There was testimony at trial that during the period that she was claiming injuries from her 2003 accident, she was also attending school full-time to obtain her licensed practical nursing degree, which she had not disclosed in that litigation.
Plaintiff failed to allege any aggravation or exasperation of pre-exiting cervical spine injuries or conditions. The Plaintiff’s orthopedic surgeon claimed that the accident caused 100% of the injuries and necessity for surgery. He testified that the Plaintiff was totally and permanently disabled from any work at all. He also opined that Plaintiff needed two more surgeries, one as a result of a non-union of her fusion and that she needed another fusion on another level of her cervical spine.

Evidence was also presented at trial that she was receiving treatment for her cervical spine with pain management, including issuance of a cervical home exercise program and cervical traction unit, only months before the 2010 accident. She had been taking Lortab consistently since her 2003 motor vehicle accident and continued taking Lortab after her 2010 accident up through the present. After the 2010 accident, Plaintiff was out of work for a period of six months before returning to work in the same capacity as before the accident and worked for a period of over three years until she underwent the cervical surgery in January 2014. She did not return to work after that time and had again sought a determination that she was totally and permanently disabled.

Defendants’ IME physician testified that MRI films taken in April 2010 after the subject motor vehicle accident were consistent with normal degeneration and aging from MRI films of the cervical spine taken after the 2003 motor vehicle accident. He opined that she sustained a minor musculoskeletal myofascial strain that would have resolved in a few months. Plaintiff’s treating orthopedic surgeon (who she treated with both after the 2003 and 2010 accidents) claimed that the Plaintiff’s injury and need for surgery was 100% the result of the 2010 accident. On cross-examination, however, he admitted that he reviewed a cervical MRI done in 2003 and said at that time that it was possible that plaintiff sustained disc herniations at C5-6 and C6-7. He also had completed a medical verification form in 2003 indicating that she had cervical, thoracic, and lumbar herniations.

Plaintiff introduced testimony from a vocational rehabilitation expert and life care planner who opined that since her physician said she was 100% totally and permanently disabled, she could never work again in any capacity and should need lifetime medical expenses and household expenses. Plaintiff’s economist indicated that Plaintiff sustained $98,060 and $132,919 in past lost wages, between $542,558 and $824,111 in future lost wages, and between $1.7 million to $3.1 million in life care expenses, including future medical expenses and household services. In addition to those amounts, Plaintiff’s counsel asked the jury for $500,000 in past and $500,000 in future pain and suffering.

The jury deliberated for about an hour before delivering a unanimous verdict finding that while the Plaintiff had incurred $800 in recoverable medical expenses ($50,800 minus $50,000 which represent basic economic loss), she did not sustain any past lost wages at all and also did not sustain a serious injury under the “permanent consequential limitation” and “significant limitation of use” categories, and thus was not entitled to recover any damages for pain and suffering, future wages, or household expenses. A post-trial Motion to Set Aside the Verdict as inconsistent was denied and no appeal was taken from the judgment entered in the case in the amount of $0.