By Michael Hoenig - New York Law Journal -
August 13, 2012
surveys recent decisions on three separate topics. First, does
the sale of a complex product, such as an airplane, impose upon
the manufacturer or seller a tort duty to train the user
regarding risky conditions? Should lessons on use be embraced
within the duty to warn? The Minnesota Supreme Court's
Glorvigen decision holds "No." Second, could an ordinary
automobile negligence case become a punitive damages nightmare
leaving businesses exposed to uninsurable catastrophic
liability? The New York Appellate Division's June 27 decision in
Quiroz v. Zottola seems to suggest this possibility and,
therefore, deserves special attention.
most personal injury claims are said to cause waiver of the
plaintiff's physician-patient privilege and, thus, require
issuance of authorizations for a claimant's medical records,
exactly what has to be produced is subject to advocacy. Courts
could take a restrictive approach, as occurred in the Appellate
Division's July 18 decision in the Farkas case. Or "full
disclosure" may be required, as occurred in the Appellate
Division's June 15 decision in Boyea v. Benz. The key
seems to be what exactly has been put "in controversy."
manufacturer of a complex product, for example, an airplane, car
or riding mower, have a duty to provide training to pilots,
drivers or users who purchase such products? Should such an
obligation be considered a part of the manufacturer's duty to
warn about dangers, risks and challenging uses of the product?
On July 18, in
Glorvigen v. Cirrus Design Corp.,1 the
Minnesota Supreme Court answered these questions "no." Training
the purchaser on how to use a product is not a tort duty.
Gary Prokop, a
licensed noncommercial pilot, and his passenger died when
Prokop's new Cirrus SR22 airplane crashed. He had purchased the
plane one month earlier. As part of the purchase, Cirrus
provided a training program for new owners designed to help
already-licensed pilots transition into the SR22. One of the
program's lessons detailed how to recover from a specific
emergency situation but Prokop never received this lesson. He
was attempting to recover from that emergency flight situation
when he crashed.
For two years
Prokop owned and flew a 1968 Cessna Sky Hawk logging at least
200 hours of flight time. However, piloting the Cessna is
different. The SR22 had new features which made it more
sophisticated and more powerful than the Cessna. As part of the
purchase price, Cirrus offered a two-day, new-owner training
program in a document called the "Pilot Training Agreement."
Cirrus also provided other written materials including a
training manual, an FAA-approved Pilot's Operating Handbook and
a separate Autopilot Pilot's Operating Handbook.
training" is standard in the general aviation industry. The
training builds upon the pilot's previous experience and
provides proficiency in the new aircraft. Cirrus contracted with
a separate flight school to provide the transition training
which consisted of five separate sessions. Prokop also
registered for two days of supplementary training.
of the estates of Prokop and his passenger sued Cirrus in
products liability and the flight school for negligence. A jury
found Cirrus 37.5 percent negligent, the flight school 37.5
percent negligent and Prokop 25 percent negligent. The jury
awarded more than $19 million in total damages. On appeal Cirrus
argued that it had no duty in tort to provide a training lesson
on recovery from the emergency situation since any such duty
arose out of the contract with Prokop. Further, providing the
written manuals and instructions discharged its duty to warn and
to give adequate instructions. The Minnesota Supreme Court, in a
4-2 decision, agreed. Cirrus' duty to warn did not require it to
provide a flight lesson covering the emergency situation that
confronted the pilot. The written manuals and instructions
informing about how to deal with the problem were sufficient.
There is "no
duty" in tort for manufacturers or suppliers "to train users in
the safe use of their product." Indeed, no case was cited by
plaintiffs obligating manufacturers to provide training lessons
in order to discharge their duty to warn. The adequate written
materials fulfilled that duty. The dissenting justices argued
that this was a jury issue. The next question was whether Cirrus
had assumed a tort duty by undertaking to contractually provide
the lesson regarding the emergency situations. The court
majority held "no." Breach of a contract, if any, was not
recoverable in tort.
What at first
blush appears to be an ordinary vehicle negligence case stemming
from the collision of a garbage truck with a school bus,
instead, may carry seeds of an extraordinary legal threat to
businesses whose employees regularly drive within the scope of
their employment. Such employers may be open to punitive damages
claims for what otherwise may have been an accident caused by
mere driver negligence. That seems to be a possible reading of
an Appellate Division, Second Department, decision issued on
June 27 bearing the name
Quiroz v. Zottola.2 Punitive damages exposure
creates potential economic disaster and lots of adverse
consequences. For example, in New York, punitive damages are not
insurable as a matter of public policy, so an employer believing
it has ample insurance coverage, actually may not. Further, the
ruling, projected out to its full potential consequences, could
impact on employers' hiring practices and workers' ability to
keep their jobs in troubled economic times. How? The interested
reader can judge the possibilities.
the injured plaintiff drove a school bus which was struck by
defendant employer's garbage truck. Plaintiff sued defendant for
personal injuries and negligent hiring, management and
supervision. Plaintiff also demanded punitive damages based on
allegations of gross negligence which were amplified by the bill
of particulars. Defendant's answer conceded the driver was
operating the truck during the course of his employment. Before
discovery was complete, defendant moved to dismiss the cause of
action alleging negligent hiring, management and supervision
and, in effect, the demand for punitive damages. The trial court
granted the motion. Plaintiff moved to renew his opposition to
defendant's motion and submitted new evidence including
deposition testimony by one of defendant's supervisors and
documents from the truck driver's employment file. The court
allowed the new evidence but adhered to its original
Department reversed. After describing the legal dynamics on a
motion to dismiss, the court observed that a claim for negligent
hiring, retention, supervision or training is permitted "when
punitive damages are sought based upon facts evincing gross
negligence in the hiring or retention of an employee." Here
plaintiff submitted new evidence which showed that
defendant-employer "may have received anonymous complaints that
[the driver-employee] drove the garbage truck…fast and
recklessly, and that [the defendant-employer] may have known
that [the driver] had one or more violations on his driver's
license prior to the subject accident." Accordingly, concluded
the appellate panel, the cause of action for negligent hiring,
etc. and the demand for punitive damages should not have been
stunning, practical implications of this seemingly simple
ruling. Employers of drivers may, upon penalty of punitive
damages, have to reconsider hiring or retaining drivers whose
employment record includes "anonymous complaints" of "fast and
reckless driving." Similarly, if the employer knows (or perhaps
should have known) that the employee-driver "had one or more
violations on his driver's license" prior to an accident, the
employer may be open to a negligent hiring and retention claim
for punitive damages. How many capable drivers at some time have
had "one or more violations" on their licenses? Should they be
fired for that reason? How many businesses may receive
"anonymous complaints?" Indeed, some businesses post a sign on
their vehicles, "How am I driving?" and provide a phone number
to call. Should receipt of one or two or three "anonymous
complaints" force the employer to discharge the driver to avoid
punitive damage exposure? If that is one implicit lesson hidden
within the Quiroz ruling, what seems like an ordinary
traffic accident case has far-ranging effect.
A suit for
personal injuries normally puts into controversy the mental or
physical condition of a party. Pre- and post-injury medical
records are then routinely discoverable and claimants are
expected to issue medical authorizations to facilitate
disclosure of the claimant's medical history. It is not pleasant
for one's personal, sensitive and sometimes intimate medical
history to be revealed to strangers but this is a price to be
paid when a party's mental or physical condition is placed in
controversy. Exactly what physical or mental condition is "in
controversy" in a given case, however, is sometimes contested.
The initial burden of proving the condition that will be subject
to "full disclosure" is on the party seeking the information.
is tension between a strong, liberal policy of full disclosure
of all matter "material and necessary" in the prosecution or
defense of an action and information that is protected by the
physician-patient privilege and thus exempted from disclosure.
This tension is frequently resolved in favor of disclosure based
on the broad nature of plaintiff's injury claims. Nevertheless,
there is room for advocacy here and, depending on how the claims
are articulated and how forcefully the issue is argued, courts
may be persuaded to take different approaches. This dynamic is
reflected in two recent Appellate Division decisions,
Farkas v. Orange Regional Medical Center,3
issued by the Second Department on July 18 and
Boyea v. Benz,4 issued by the Fourth
Department on June 15.
the plaintiff mother sued for medical malpractice during
pregnancy and birth on behalf of her infant plaintiff. In a
preliminary conference, the trial court directed plaintiffs to
provide authorizations for the mother's prenatal, obstetrical
and gynecological records pertaining to the births of her six
nonparty children. Plaintiffs, however, moved to vacate the
order to release medical records outside the period of pregnancy
at issue in this case. The trial court then agreed. The
appellate court affirmed.
physician-patient privilege prevented disclosure unless it had
been waived by plaintiff affirmatively placing her mental or
physical condition in issue. A defense expert's affidavit
posited that the mother's previous pregnancies may have been a
cause of the infant plaintiff's injuries. That showing
demonstrated the prior records were "material and necessary."
But this by itself did not mean that the plaintiff mother had
waived the privilege regarding the other pregnancies.
Plaintiff's assertion of the privilege regarding the other
pregnancies came with a price, however: Plaintiffs will be
precluded from introducing evidence at trial on matters covered
by the privilege asserted.
In Boyea v.
Benz, the Fourth Department rejected a restrictive approach
to such disclosure. Plaintiff was a passenger in an automobile
struck by defendant's vehicle. Claiming injuries to her neck,
back, shoulders and other body parts, she also particularized
headaches, dizziness, heart palpitations, emotional anguish and
suffering and "inability and limited ability to engage in life's
enjoyments and loss of employment and career." Plaintiff
provided authorizations for defendants to obtain her medical
records but limited those to post-accident treatment of her neck
and back. Defendant moved to compel pre-accident records and
plaintiff relented, agreeing to provide those "for the body
parts at issue."
discovery, it became apparent that plaintiff had suffered from a
pre-existing medical illness. A psychotherapist's notes two
years before the accident indicated that plaintiff had not
worked in two years and that she was applying for Social
Security Disability (SSD) benefits. Defendants sought
plaintiff's authorization for records from Social Security. At
oral argument on the motion, plaintiff withdrew her claim for
emotional distress as a result of the accident. The motion judge
ordered plaintiff to authorize release of all pre-accident
medical records relating to enumerated body parts but denied
compulsion of records relating to pre-accident applications for
SSD benefits. The court did, however, order production to
defendants of all administrative determinations of pre-accident
SSD benefits. It also ordered that all post-accident SSD records
be submitted to the court for in camera review. Not satisfied,
Division held that all SSD records, whether pre- or
post-accident, had to be produced. Although plaintiff withdrew
her claim for emotional distress due to the accident, her other
broad allegations of injury—limited ability to perform normal
daily functions and social activities, inability to engage in
life's enjoyments, loss of employment and career—could have
resulted from physical injuries sustained in the accident, from
her pre-existing medical condition or some combination of them.
The pre-existing mental condition could be relevant on her claim
for damages due to an "inability to lead a normal life," etc.
Accordingly, the appellate court ordered all records relating to
SSD benefits to be reviewed in camera by the trial court to
ascertain whether they are "material and related to any physical
or mental condition placed in issue by plaintiff."
is a member of Herzfeld & Rubin.
1. 2012 Minn.
LEXIS 305 (Minn. Sup. Ct. July 18, 2012).
2. 2012 NY Slip
Op 05159 (2d Dept., June 27, 2012).
3. 2012 NY Slip
Op 05610 (2d Dept., July 18, 2012).
4. 2012 NY Slip
Op 04860 (4th Dept., June 15, 2012).
Printer Friendly Version
Back to Archive
125 Broad Street, New York, New York, 10004 - Phone: 212-471-8500 - Fax: 212-344-3333©2004 -2014 Herzfeld & Rubin, P.C.