No, don’t put it on Facebook

I’m not sure what George Orwell would have made of Facebook. I like to think he’d have been amused by the idea that social media would have put the Thought Police out of work. Lawyers everywhere are discovering, however, that it can keep them in work.

Big bro
Image from here

Ms Kelly Forman fell from a horse. She suffered spinal injuries and also acquired brain injury. She alleged that her brain injury caused cognitive problems which made it difficult for her to express herself. Among other things, she claimed that she had trouble using a computer and, in particular, spelling and remembering the rules of grammar so to express herself coherently. She sued the owner of the horse.

The defendant sought an order that the plaintiff provide access to her entire Facebook account on the basis that the photographs and written content were relevant to his defense, including showing the time it took the plaintiff to compose or respond to messages. The Supreme Court of New York County ordered the plaintiff to produce all photographs posted privately on Facebook prior to the accident which she intended to produce at trial, all photographs of herself posted privately after the accident, and records detailing each time she had posted a private message after the accident and the number of characters or words in the message.

The plaintiff appealed and the Appellate Division narrowed the order. The Defendant appealed to the New York Court of Appeals.

The Court of Appeals reinstated the original order. It rejected the idea that the scope of discosure of social media materials should be controlled by the accountholder’s privacy settings. The Courts should instead employ their well-established rules as to discovery, including as to preventing ‘fishing expeditions. When called upon to decide a dispute as to social media discovery –

courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

As a generation rises whose entire life from conception onwards has been documented on Facebook, discovery disputes will be ever more important to personal injury lawyers.

Forman v Henkin (2018), New York Court of Appeals, 13 February 2018

S.F. v Archer Daniels Midland Co (2014) H&FLR 2015-19

S.F. v Archer Daniels Midland Co, Cargill Inc, Ingredion Inc, Tate & Lyle Ingredients Americas LLC and Roquette America Inc (2014) H&FLR 2015-19

United States Court of Appeals (Second Circuit)

11 December 2014

Coram: Chin and Carney JJ, Sweet DJ

Appearing for the Plaintiff: John Michael Hayes (of Law Office of J. Michael Hayes)
Appearing for the First, Second, Third and Fourth Defendants (Archer, Cargill, Ingredion, and Tate): Stephen Victor D’Amore, Dan K. Webb, Scott P. Glauberman, Cornelius M. Murphy and William P. Ferranti (all of Winston & Strawn LLP) and Kevin M. Hogan (of Phillips Lytle LLP)
Appearing for the Fifth Defendant (Roquette): David Ray Adams (of Hurwitz & Fine PC) and Peter N Wang (of Foley & Lardner LLP)

Catchwords: New York – High Fructose Corn Syrup – diabetes – negligence – products liability – defective design – market share liability

Facts: The plaintiff was the father of SEF, an infant who had consumed high fructose corn syrup, of which the defendants were (and are) major manufacturers.  It was alleged that this product was a substanial factor in SEF’s development of Type 2 diabetes.  SF brought proceedings against the defendants based on negligence, gross negligence, strict products liability (in relation to defective design), and failure to warn.  The defendants sought and were granted summary dismissal of the claim: S.E.F. v Archer Daniels Midland Co (2014) H&FLR 2014-8.  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. In general, New York law views claims based on strict products liability and negligence to be functionally synonymous.  To state a claim for defective design in relation to a products liability (or, by extension, negligence) claim, the plaintiff must allege that the the product as designed posed a substantial risk of harm, that it was practicable to design the product more safely, and that the defective design was a substantial factor in causing injury.  The plaintiff’s claim failed because she did not allege a safer alternative design.

Lewis v Abbott Labs, No. 08 Civ. 7480(SCR)(GAY), 2009 WL 2231701 (S.D.N.Y. July 24, 2009); Voss v Black & Decker Manufacturing Co, 59 N.Y.2d 102 (1983); Goldin v Smith & Nephew Inc., No. 12 Civ. 9217(JPO), 2013 WL 1759575 (S.D.N.Y. Apr. 24, 2013).

2. Obiter, a complete ban on a product is not a permissible “safer alternative design” in a design defect case

Clinton v Brown & Williamson Holdings Inc., 498 F.Supp.2d 639 (S.D.N.Y. 2007) and Adamo v Brown & Williamson Tobacco Corp, 11 NY.3d 545 (2008), considered.

3. The case was not appropriate for analysis under the principle of “market share liability” for the substantially the same reasons as those outlined by the trial court.

Hymowitz v Eli Lilly & Co, 73 NY.2d 487 (1989), considered.


The Court’s judgment is available here.



NY Statewide Coalition of Hispanic Chambers of Commerce v NYC Dep’t of Health (2014) H&FLR 2014-45

New York Statewide Coalition of Hispanic Chambers of Commerce and Ors v New York City Department of Health and Mental Hygiene and Ors (2014) H&FLR 2014-45

New York Court of Appeals

26 June 2014

Coram: Lippman CJ, Pigott, Graffeo, Smith, Abdus-Salaam and Read JJ

Appearing for the Appellant: Mr Richard Dearing (of New York City Law Department – Appeals Division)
Appearing for the Respondent: Mr Richard P. Bress (of Latham & Watkins LLP)
Numerous parties appeared as amici curiae.

Catchwords: New York – sugary drinks – containers – limitation – separation of powers – tests – arbitrary.

Facts: In 2012 the appellant Board adopted an amendment to the New York City Health Code (§81.53) which prohibited the sale of sugary drinks in containers of greater than 16 fluid ounces. The rule included a specific definition of ‘sugary drink’ and did not apply to supermarkets or convenience stores.

The respondent Coalition sought a declaration that the amendment was invalid. This declaration was initially made by the Supreme Court of New York County: NY Statewide Coalition of Hispanic Chambers of Commerce v NYC Dep’t of Health, 2013 NY Slip Op 30609(U). An appeal by the Board was dismissed: NY Statewide Coalition of Hispanic Chambers of Commerce v NYC Dep’t of Health, 110 AD.3d 1 (1st Dept, 2013). The Board appealed.

Held: Per Pigott, Graffeo and Smith JJ, dismissing the appeal –

1. The Board’s authority is limited to enacting regulations for carrying out the powers and duties delegated to it by Federal, State or local law. It does not have legislative power.

Grossman v Baumgartner, 17 NY.2d 345 (1966); Shulman v NYC Health & Hospitals Corp, 38 NY.2d 234 (1975); People v Blanchard, 288 NY 145 (1942), considered.

2. The New York City Charter sets up a separation of powers. There is no bright-line test for assessing whether a regulatory agency has trespassed into the legislative arena. However, four factors may, when viewed in combination, indicate that an agency has breached the separation of power. The factors are –

(a) Has the agency balanced the competing interests of public health and economic cost in order to reach its own view of sound public policy? In considering this factor, it should be noted that undertaking such a cost-benefit analysis is part of reasonable regulation, and that an agency which enacted rules without considering whether the benefits outweigh the costs would be acting unreasonably*. However, it will be relevant to consider whether the legislature has given any guidelines as to how the costs and benefits are to be weighed. Judgments involving difficult and complex choices among broad policy goals are a matter for the legislature.

(b) Has the agency created a comprehnsive set of rules without the benefit of public guidance? In the present case it was relevant that the legislature had not established health policy goals with regard to sugary beverages which the rule could relate to.

(c) Does the challenged rule govern an area where a legislative body has repeatedly tried to reach agreement in the face of significant public debate?

(d) Did the development of the rule require expertise in a specialised area.

Boreali v Axelrod, 71 NY.2d 1 (1987), followed.

Per Abdus-Salaam J, concurring in the result –

3. The Board engaged in improper law making by setting broadly applicable policy affecting a large part of the New York population, enacting a rule which involved a value judgment as to voluntary behaviour, addressing a field the legislature has considered but not acted upon, and by adopting a rule which did not respond to a health problem with a clear cause**.

4. Semble, the law does not establish a rigid decisional framework to be applied in future when considering the actions of administrative agencies.

Boreali v Axelrod, 71 NY.2d 1 (1987), not followed.

Per Read J and Lippman CJ, dissenting –

5. The Board’s history establishes that has the delegated authority of the New York State Legislature to regulate public health in New York City. The Boards regulations have the force and effect of State law. As such, it is irrelevant that New York City Council has not chosen to regulate sugary drinks.

6. Any analysis of separation of powers issues should be flexible and case specific and consider the relevant agency’s decision in light of the legislative delegation it invokes. Considerations of delegation of State legislative power may not be apposite in considering delegations of local government power.

Boreali v Axelrod, 71 NY.2d 1 (1987), distinguished.

7. Where a regulation is not tainted by ultra vires or deparation of powers problems, the proper standard for review is whether the rule is so lacking in justification that it is essentially arbitrary*.

Bernstein v Toia, 43 NY.2d 437 (1977) and General Electric Capital Corp. v NY State Division of Tax Appeals, Tax Appeals Tribunal, 2 NY.3d 249 (2004), considered.


The Court’s judgment is available here.

* Cf Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223.
** Cf Pelman v McDonald’s Corporation (2003) H&FLR 2014-33 and S.E.F. v Archer-Daniels-Midland Co (2014) H&FLR 2014-8.

Pelman v McDonald’s Corporation (2003) H&FLR 2014-33

Ashley Pelman and Ors v McDonald’s Corporation and Ors (2003) H&FLR 2014-33

United States District Court (S.D.N.Y.)

22 January 2003

Coram: Sweet DJ

Appearing for the Plaintiffs: Mr Samuel Hirsch (of Samuel Hirsch & Associates)
Appearing for the Defendants: Messrs Thomas Quigley, Bradley Lerman and Bruce Braun (of Winston & Strawn) and Mesdames Anne Kimball and Sarah Olson (of Wildman, Harrold, Allen & Dixon)

Catchwords: New York – infant – McDonald’s – overweight – heart disease – diabetes – hypertension – high cholesterol – deceptive acts – negligence – puffery – failure to warn

Facts: The plaintiff was an infant who had consumed the hamburgers and other items sold by the defendant. She had become overweight and developed (inter alia) heart disease, diabetes, hypertension and high cholesterol. She issued proceedings aganst the defendant, alleging deceptive acts and practices breaching the Consumer Protection Act, N.Y. General Business Law, §349 and §350 (by failing to disclose the ingredients and/or health effects of their products) and the N.Y.C. Administrative Code, Ch. 5, 20-700 (in relation to the defendant’s marketing practises). She also alleged that the defendant had negligently sold products which caused negative health effects and which were addictive, and that it had failed to warn cusomers of the makeup of its products and the health-effects of consuming them.

The defendant sought summary dismissal of the complaint under r.12(b)(6) of the Federal Rules of Civil Procedure.

Held: Dismissing the complaint with leave to re-plead –

1. The plaintiff had not identified an instance of deceptive acts or advertising to children, and therefore the allegations on these points had to be dismissed.

2. Obiter, that encouraging consumers to eat McDonald’s “everyday!” was mere puffery absent a claim that doing so would have particular health effects.

Coastal Communications Corp. v. Adams/Laux Co Inc, 40 USPQ 2d 1383-1996 (SDNY, 24 September 1996), considered.

3. An allegation of liability to consumers based on their over-consumption of products will fail if the effects of overconsumption are common knowledge. In order to state a claim it would be necessary to allege that the products are so extraordinarily unhealthy as to be (a) outside the reasonable contemplation of consumers, or (b) dangerous even in their intended use. The Court noted the significant processing undergone by the defendant’s products and gave leave to amend the complaint to raise allegations on the point.

4. For the claim to survive an application to dismiss, it would be necessary to show that the plaintiff ate at McDonalds on enough occasions to raise a question as to whether its products played a significant role in her health problems. The more often she ate there, the more likely it was that its products had caused her injuries. Further, the complaint would need to address any impact from other variables (for example, genetics).

5. A manufacturer will not be liable for a failure to warn of its products’ unhealthy attributes if the risks are sufficiently obvious without a warning. However, this does not apply where elements of the hazard are concealed or not reasnably apparent to the user.

Andrulonis v United States, 924 F. 2d 1210 (2d Cir., 1991); Liriano v Hobart Corp., 92 NY.2d 232, 677 NYS.2d 764, 700 NE.2d 303 (NY, 1998), followed.


The Court’s judgment is available here.

Wittorf v City of New York (2014) H&FLR 2014-26

Rhonda Wittorf v City of New York (2014) H&FLR 2014-26

Court of Appeals of New York

5 June 2014

Coram: Lippman CJ, Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam JJ

Appearing for the Plaintiff (Appellant): Brian J Shoot (of Sullivan Papain Block McGrath & Cannavo)
Appearing for the Defendant (Respondent): Ronald E Sternberg (of New York City Law Department
Appearing as Amicus Curiae: New York State Trial Lawyers Association

Catchwords: New York – negligence – road works – closure of road – cyclist – road defect – fall off bicycle – governmental function – proprietary function

Facts: On 5 November 2005, an employee of the defendant with a works crew attended Central Park to repair certain defects in the roadway beneath an underpass. Before starting work, the employee went to an entrance to the park to close it to vehicular transport with traffic cones. As he did so, the plaintiff and a third party arrived and asked if they could use the roadway on bicycles. They were told it was “okay to go through”. As they did so, the plaintiff encountered the defects which he crew had been sent to repair, fell off her bicycle and was injured. She commenced proceedings seeking compensation from the defendant in the Supreme Court of New York.

At trial, a jury found that the defendant’s employee was negligent in allowing the plaintiff to use the roadway and that this negligence was a substantial factor in causing her injuries. The defendant successfully applied to the Court to set the verdict aside on the grounds that the employee was carrying on a governmental function at the time of the accident*. An appeal to the Appellate Division was dismissed**. The plaintiff appealed to the Court of Appeals.

Held: per curiam, upholding the appeal –

1. If a municipality is engaged in a proprietary (as opposed to governmental) function when the claim arises, it is subject to being sued under the ordinary rules of negligence. It will be engaging in a proprietary function if the activity substitutes for or supplements traditionally private activity. It will be engaging in a govenmental function if its acts are undertaken for the protection and safety of the public under the general police power.

Applewhite v Accuhealth Inc, 21 NY.3d 420 (2013), followed.

2. A municipality has a proprietary duty to keep roads and highways in a reasonably safe condition, and the function remains proprietary regardless of limitations on liability imposed by “prior written notice” laws or whether the function is carried out by the municipality’s maintenance crews.

Friedman v State of New York, 67 NY.2d 271 (1986), followed. Bruni v City of New York, 2 NY.3d 319 (2004) and Amabile v City of Buffalo, 93 NY.2d 471 (1999), considered.

3. In the present case, although the City’s employees had not yet begun the repairs, the works could not be performed without closing the road to traffic and so the closure was integral to the repair work and part of the proprietary function. By contrast, had the crew been seeking to control access to the scene for the protecion of the public in general (a governmental function), this may have rendered the traffic control decision governmental.

Balsam v Delma Engineering Corporation, 90 NY.2d 966 (1997), distinguished.


The Court’s judgment is available here.


* Wittorf v City of New York , 33 Misc 3d 368 (2011).

** Wittorf v City of New York, 104 AD.3d 584 (1st Dept, 2013)

Rosenblatt v St George Health & Racquetball Associates LLC (2014) H&FLR 2014-22

Eleanor Rosenblatt v St George Health & Racquetball Associates LLC (2014) H&FLR 2014-22

Supreme Court of New York (Appellate Division)

30 April 2014

Coram: Eng PJ, Dillon, Leventhal and Miller JJ

Appearing for the Plaintiff:  Stephen R Loeb.

Appearing for the Defendant: Kevin J. O’Donnell (instructed by Kenny & Zonghetti LLC)

Catchwords: New York – body sculpting – exercise ball – negligence – assumption of risk – summary dismissal

Facts: St George Health & Racquetball Associates (defendant) operates the Eastern Athletic Club in Brooklyn.  In May 2009 Rosenblatt (plaintiff), aged 72 years, attended a ‘body sculpting’ class at the club.  The instructor (a substitute filling in for the regular instructor) gave each of the participants an exercise ball to sit on.  The plaintiff had not previously used an exercise ball.  When she sat on it, it rolled, causing her to fall and suffer injury.

The plaintiff brought proceedings against the club on the basis that it had negligently failed to train, supervise or provide for an appropriate instructor.  However, she conceded that she was responsible for her own safety in class and that she was able to decide what activities she could safely perform.  She also conceded that she had not expressed concern over her lack of experience with an exercise ball nor expressed unwillingness to use it. The defendant responded that any injuries sustained by the plaintiff were caused by her own conduct and that the doctrine of primary assumption of risk barred her from recovering compensation.  It sought summary dismissal of the complaint.  The Supreme Court declined to dismiss on procedural grounds*.  The defendant appealed.

Held: Allowing the appeal and dismissing the proceedings, that the trial court’s refusal of the application on procedural grounds was mistaken.  Considering the application to dismiss on the merits –

1. The doctrine of primary assumption of risk** does not bar liability if the risk is not assumed, is concealed or is unreasonably increased. Alqurashi v Party of Four Inc, 89 AD.3d 1047 (2011) and Demelio v Playmakers Inc, 63 AD.3d 777 (2009), followed.

2. (Sua sponte) The plaintiff, by voluntarily sitting on an exercise ball , assumed the inherent risk that it could roll and cause her to fall. Berry v Bally Total Fitness Corp, 272 AD.2d 354 (2000), considered.

3. It was relevant that the plaintiff was not required to use the exercise ball. Quaere whether the position would be different if the plaintiff had been obliged to use it. Calouri v County of Suffolk, 43 AD.3d 456 (2007)


The Court’s judgment is available here.  The plaintiff elected not to pursue an appeal.


* Eleanor Rosenblatt v St George Health & Racquetball Associates LLC (Sup. Ct. N.Y., Battaglia J, 17 August 2011, unreported).

** As to which, see Custodi v Town of Amherst (2012) H&FLR 2014-18.

Custodi v Town of Amherst (2012) H&FLR 2014-18

Robin Custodi v Town of Amherst & Ors (2012) H&FLR 2014-18

New York Court of Appeals

30 October 2012

Coram: Lippman CJ, Ciparick, Read, Smith, Pigott, Jones and Graffeo JJ

Appearing for the Appellant: Joel B Schechter (of Bennett, Schechter, Arcuri & Will LLP)

Appearing for the Respondent: Robert J Maranto

Catchwords: New York – rollerblading – residential street – fall – assumption of risk – duty of care – athletic or recreational activities

Facts: In July 2007 Robin Custodi (respondent) was injured while rollerblading in a residential street when she hit a two inch height differential where the driveway belonging to one Muffoletto (appellant) met a drainage culvert, causing her to fall. 

The respondent commenced proceedings in negligence against the defendant.  The appellant sought summary judgment from the Supreme Court which was granted on the basis of the respondent’s voluntary assumption of risk*.  On appeal, the Appellate Division found that the doctrine of primary assumption of risk did not apply and that there was a triable issue of fact with regard to proximate cause**.  The appellants appealed to the Court of Appeals.

Held: Per curiam, dismissing the appeal –

1. The principle of “primary assumption of risk” means that a plaintiff who freely accepts a known risk commensurately negates any duty of a defendant to protect them from that risk.  This principle applies when a consenting participant in a relevant activity is aware of an understand the risks and voluntarily assumes them.  The risks must be known, apparent or reasonably foreseeable to the plaintiff.

Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), followed.

2. Where a plaintiff has made a primary assumption of risk, the defendant’s duty is to make the conditions as safe as they appear to be.

Turcotte v Fell, 68 NY.2d 432 (1986), followed.

3. A plaintiff does not assume risks which are concealed, unreasonable enhanced, or caused by reckless or intentional conduct of other people.

Morgan v State of New York, 90 NY.2d 471 (1997), followed

4. The principle of primary assumption of risk is in general limited to particular athletic and recreational activities on the grounds that while they involve increased risks, they have significant social value and it is appropriate to shield coparticipants, sponsors and venue providers from liability.  The appellants were not providers of a means of a means of athletic or recreational activities and so this case was not appropriate for the application of the principle.  Further, it would be an excessive expansion of the doctrine to treat sidewalk defects or dangerous premises as inherent risks assumed by joggers, runners, cyclists and rollerbladers.

Ashbourne v City of New York, 82 NY.3d 461 (2011), Cotty v Town of Southampton, 64 AD.3d 251 (2009), Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), considered.


The Court’s judgment is available here.


*   Custodi v Town of Amherst (Supreme Court of New York, Feroleto J, 24 February 2010, unreported).

**  Custodi v Town of Amherst, 81 AD.3d 1344 (2011)

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

United States District Court (W.D.N.Y.)

21 April 2014

Coram: Skretny CJ

Appearing for the Plaintiff: J. Michael Hayes (of Law Offices of J. Michael Hayes)
Appearing for the Defendant: Kevin Hogan (of Phillips Lytle LLP) and Dan K. Webb, Stephen V. D’Amore, Scott P. Glauberman and Cornelius M. Murphy (all of Winston & Strawn LLP)

Catchwords: New York – high-fructose corn syrup – diabetes – negligence – product liability – failure to warn – market-share liability – feasible redesign

Facts: The defendants* were manufacturers of high-fructose corn syrup (HFCS). The plaintiff was a 14 year old girl who alleged that she had consumed HFCS in common foods and that this caused her to develop Type 2 diabetes. She sought compensation from the defendants based on negligence, gross negligence, strict products liability and failure to warn of the danger of a product. She relied on the doctrine of market-share liability, whereby a defendant can be presumed liable for a plaintiff’s injury to the extent of its share of the relevant market**.

The defendants’ position was that the plaintiff could neither connect her condition to HFCS, nor to any particular defendant. It was also contended that Federal food-additive laws pre-empted her claim. The defendants applied to dismiss the claim.

Judicial notice was taken that type 2 diabetes could be caused by a number of factors including diet, exercise (or lack thereof) and family history. It was common ground that the law of the state of New York applied to the claim.

Held, dismissing the plaintiff’s claim,

(1) The plaintiff had failed to state a plausible ground for relief and therefore the claim failed.

(2) An implausible claim ought not be allowed to proceed on the basis that may be validated or undermined through discovery.

Ashcroft v Iqbal, 556 US 662 (2009) and Bell Atl. Corp. v Twombly, 550 US 544 (2007), followed.
Pelman v McDonald’s Corp., 396 F.3d 508 (2d Cir., 2005), not followed.

(3) New York law does not allow “market share liability” to apply in cases where the manifestation of injury is not alleged to be far removed from the time of the allegedly harmful product’s consumption. It also does not allow the doctrine to apply where there is no signature injury conclusively linking the product to the harm, and certainly not where there is no clear public policy that it should apply.

Hamilton v Beretta USA Corp., 96 NY.2d 222, 750 NE.2d 1055 (2001) and Brenner v American Cyanamid Co., 263 AD.2d 165 (4th Dept, 1999), followed.

(4) New York law recognizes claims of strict liability in relation to design defects where it can be shown that: the product as designed presented a substantial risk of harm; it was feasible to design it in a safer manner; and the design defect was a substantial factor in causing injury. However, if the necessary redesigning causes the product to cease to exist, a design defect claim must fail.

DiBartolo v Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y., 2012) and Clinton v Brown & Williamson Holdings Inc., 498 F. Supp. 639 (S.D.N.Y., 2007), followed.


The Court’s judgment is available here.


* Archer-Daniels-Midland Co, Cargill Inc, Ingredion Inc, Penford Products Co, Tate & Lyle Ingredients Americas LLC and Roquette America Inc.
** Hymowitz v Eli Lilly & Co, 73 NY.2d 487; 539 NE.2d 1069 (1989).