Page 11 - WCBA CLE 6-14-2022

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player was kicked out of two tennis academies on Long Island.

This Court determined that the defendant established her entitlement to summary
judgment dismissing the complaint insofar as asserted against her. The defendant’s
email to the USTA official was protected by a qualified privilege as the defendant had
an interest, as a parent, in complying with the official's request that she put her
concerns in writing and thus reporting, in a more formal way, serious allegations of
bullying that, in her view, put her son's physical and emotional well-being at risk. In
opposition to the defendant’s prima facie showing, the plaintiff failed to show that there
was a triable issue of fact as to qualified privilege. The plaintiff also did not establish,
prima facie, that there was any issues of fact as to either common law malice or actual
malice.

Kunnemeyer v Long Island Railroad, 202 AD3d 74 [ Dec 22, 2021][Justice Wooten,
opinion; Justices LaSalle, Austin, Zayas concur]:

HOLDING ON APPEAL: This Court affirmed a judgment in an action to recover
damages for personal injuries, entered by the Supreme Court, upon a jury verdict in
favor of the defendant Long Island Rail Road on the issue of liability, in favor of the
defendant and against the plaintiff and dismissed the complaint insofar as asserted
against that defendant.

FACTS: The issuance of a charge on the open run defense - when a train engineer
sees a person on or near the tracks - may be applicable under any circumstances in
which an oncoming train would be readily observable to a person on or near the tracks
making reasonable use of his or her senses. In such a case, the engineer may assume,
that the person will notice the oncoming train and leave the tracks in time to avoid an
accident. When the open run defense is applicable, the engineer has no duty to make
an emergency stop unless he or she determines that the person cannot or will not leave
the tracks.

In this case, it was appropriate for the Supreme Court to issue a modified jury charge
on the open run defense which was tailored to the facts of this case by omitting the
words "in broad daylight"as the accident occurred at night. The words "in broad
daylight," would have had significant potential to confuse the jurors and since the
plaintiff did not ask the jury to find that the engineer waited to take action when he first
spotted the plaintiff, there was no basis to speculate that the jury verdict was influenced
by the open run defense.

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