Cyclists Don’t Assume the Risk of Bad Roads (NY)

Generally, participants in sporting activities are found to assume those risks which are inherent to that sport. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.

In Cotty v. Town of South Hampton, plaintiff, a cyclist, was injured while avoiding a road defect. The defendants argued that plaintiff assumed the risk and moved to dismiss. A New York appellate court held that, as a matter of law, a cyclist does not assume the risk of a negligently maintained roadway. The Court held that, unlike situations involving mountain biking or off-road riding, an irregular surface is not a challenge that should be part of the sport.

NY’s First Department Addresses Distributor’s Liability In Strict Products Action

In Fernandez v. Riverdale Terrace, et. al, the First Department dealt with the liability of distributors in strict products liability cases. In Fernandez, the plaintiff sustained injuries while cleaning a defective building trash compactor. The general contractor had purchased the compactor from subcontractor Action, who pursuant to the sale, was obligated to install the compactor. Action chose the make and model of the subject compactor, purchased it directly from an entity related to the manufacturer at a “distributor” price, and then subcontracted the installation of the compactor to that entity. In affirming the lower court’s denial of Action’s motion for summary judgment, the First Department reaffirmed that a party who sustains an injury from a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury. Consequently, a distributor of a defective product is subject to strict liability, regardless of whether they merely took an order or shipped a product, and never actually inspected, controlled, installed or serviced the product. Since Action failed to submit evidence to establish that it was not a distributor, and only asserted that it did not design, manufacture, install or maintain the compactor, its motion was denied. The court’s decision implied that Action actually stepped into the shoes of the distributor.

Thanks to Lora Gleicher for her contribution to this post.

Step Class Not Inherently Dangerous

In Devorah Meisels v. Lucille Roberts Health Clubs, Inc., the plaintiff was injured when she slipped on an excercise step while participating in a step class. The plaintiff claimed that she slipped because the fuzz from a newly-installed carpet had become caught in the grooves of the step. The defendant moved for summary judgment arguing that the plaintiff testified that she first noticed the fuzz 30 minutes prior to the accident, but continued to use the step without complaint. The trial court denied the defendant’s motion for summary judgment, but the Appellate Division reversed and granted the defendant’s motion for summary judgment reasoning that the condition of the carpet fuzz was open and obvious and not inherently dangerous condition.

Victorious Plaintiff In DJ Action Entitled To Attorney Fees In Companion Action

In Myron Corp. v. Atlantic Mutual Ins. Co., the plaintiff, a New Jersey corporation, was insured under a CGL policy issued by Atlantic Mutual in New Jersey. Several businesses in various states sued Myron claiming that it sent them “junk faxes” in violation of federal law. Atlantic Mutual refused to defend or indemnify Myron and commenced a declaratory judgment action in Illinois that was eventually dismissed. Myron ultimately won its coverage suit in New Jersey and the Appellate Division held that because Myron prevailed on the merits of its New Jersey coverage lawsuit and was entitled to fees for that litigation, Myron was also entitled to counsel fees for the Illinois litigation because that action stemmed from the same controversy over the coverage issue.

Thanks to Claudia Condruz for her contribution to this post.

Fall From Height Not Necessary to Sustain a Fall From Height Injury

In Peters v. Kissling Interests, Inc., the plaintiff was standing on a window sill that was several feet above the floor, attempting to remove the window trim with a pry bar. A piece of loose trim unexpectedly broke free from the window and he began to fall backwards off the window sill. When the plaintiff grabbed the window sash to prevent himself from falling, the window shattered and a piece of glass struck his wrist. The lower court granted the defendant’s motion for partial summary judgment dismissing the Labor Law § 240(1) claim holding that the plaintiff did not actually fall from a height. The Appellate Division, however, reversed and held that a worker is protected by Labor Law § 240(1) when he or she is subject to an elevation-related risk and the failure to provide any safety devices to protect the worker from such a risk is a proximate cause of his or her injuries. The fact that the plaintiff here did not actually fall was irrelevant.

Thanks to Cheryl Fuchs for her contribution to this post.

Adjacent Property Owner Not Liable Where Plaintiff Struck By Falling Tree Branch

In Rivers v. City of New York, the plaintiff was injured when a large tree branch fell and struck her on the head while walking along a public sidewalk. In granting the adjacent property owner’s motion for summary judgment, the court acknowledged that the law imposes a duty to maintain ones property free and clear of dangerous or defective conditions, but held that the property owner demonstrated that they neither owned the tree nor exercised any control over it.

Thanks to Bill Kirrane for his contribution to this post.

New Jersey Supreme Court Weighs UIM Issues

In Bardis v. First Trenton Insurance Company, plaintiff John Bardis was injured when his automobile was involved in a three car accident caused when a vehicle driven by Joseph Bologna hit the vehicle behind plaintiff’s, pushing it forward. At the time of the accident, plaintiff was insured by defendant First Trenton Insurance Company. Bardis included First Trenton in the litigation under an UIM theory for costs beyond Bologna’s insurance coverage.

Three issues were raised: (1) whether, in a jury trial arising out of Underinsured Motorist (UIM) coverage, the insurer should be identified as the defendant, (2) whether in the UIM trial, evidence that the insurer authorized payment of Personal Injury Protection (PIP) benefits is relevant to whether there is a causal connection between the accident and the claimed injuries, and (3) whether in the unusual circumstances of this dispute, the UIM carrier’s disavowal of knowledge of the source of payments for the medical treatment of plaintiff’s injuries deprived plaintiff of a fair trial.

The Supreme Court concluded that (1) there are strong reasons supporting the rule that the UIM litigation proceed in the name of the tortfeasor rather than the insurer, (2) payment of PIP benefits for treatment of an injury is irrelevant to the question of causation of that injury, and (3) the trial court’s error in admitting evidence of PIP payments led to the use of a stipulation identifying an employee of the insurer as having authorized those payments, and to the closing argument by counsel disavowing both his own and the actual tortfeasor’s knowledge about that employee and her decisions.

Thanks to Sheila Osei for her contribution to this post.

President Proposes Federal Insurance Office

It has been reported that President Obama will propose that a new office be created in the Treasury Department to monitor all aspects of the insurance industry and determine risks that could lead to future financial crises. The new office, The Office of National Insurance, would attempt to coordinate policy, but would not be a direct regulator.

PA Supreme Court Rebuffs Opportunity to Change Product Liability Law.

In April, we reported on the case of Berrier v. Simplicty, et al., a Third Circuit opinion in which the court ruled that PA’s Supreme Court would soon adopt the Restatement Third of Torts. The vehicle for such change was the case of Bugosh v. I.U. North America which was pending before the court. Yesterday, in a one line opinion, the Supreme Court declared that the appeal had been “improvidently granted.” It therefore dismissed the appeal. In light of this decision, the Restatement 2nd appears to remain the law of the Commonwealth.

High School Wrestler Assumed Risk of Injury from Wind Sprints

In Musante v. Oceanside Union Free School District, the plaintiff was injured at wrestling practice when he tripped over the edge of a wrestling mat while participating in “wind sprints.” As a result of tripping on the mat, plaintiff claimed he was caused to collide with a nearby wall. The plaintiff alleged that the defendant was negligent in directing him to use the wall as a finishing point for the drill. The trial court denied the defendant’s motion for summary judgment.

On appeal, the Appellate Division, Second Department, reversed and granted the defendant’s motion for summary judgment. The Appellate Division reasoned that by participating in a sport or recreational activity, the plaintiff had consented to the commonly appreciated risks which were inherent in and arose out of participation in the sport. The court further stated that the defendant met its burden by demonstrating that the risk of colliding with the wall was inherent in the activity and that the condition of the wall was open and obvious.

Thanks to Brad Thelander for his contribution to this post.