In Bramswig v. Pleasantville Middle School, a 12-year old plaintiff was injured when a classmate (and teammate) accidently struck him in the mouth with a hockey stick during a floor hockey game at Pleasantville Middle School in Westchester County. The plaintiff’s first cause of action was based upon negligent instruction of the “high-sticking” rule by the gym teacher. (Presumably, there were other causes of action in this case in addition to negligent instruction, together with contributory negligence defenses, but none were addressed by the Court in this decision.)

The gym teacher was deposed, and testifed that he instructed the students at the beginning of that game, and in fact at the beginning of every gym class, that the practice of “high-sticking” was prohibited in floor hockey (not to mention a double minor in the NHL if injury ensues.) Further, he testified that he defined “high sticking” as lifting one’s hockey stick above his or her waist during play.The defendants moved for summary judgment on the issue of negligent instruction, and plaintiff argued that there was a triable issue of fact as to the substance of the gym teacher’s warning. Specifically, the plaintiff asserted that it was unclear whether the instruction of “high-sticking” involved raising one’s stick above the knees or above one’s waist.

The Appellate Division, Second Department found that the plaintiff’s premised triable issue of fact was academic, in that regardless of the gym teacher’s warning, the plaintiff was struck in the mouth by the high stick, and therefore either potential instruction was not heeded by the other student. Accordingly, the defendants’ failure to instruct on the “high-sticking” rule was not a proximate cause of the plaintiff’s injury, and defendants were granted summary judgment on this issue.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09603.htm

In Acunia v. New York City Department of Education, the plaintiff was an eighth grader who slipped and fell while playing basketball in the school gymnasium. The Department of Education moved for summary judgment which was granted by the Supreme Court in Bronx County.

The plaintiff appealed and the First Department affirmed finding that, although plaintiff does not bear the burden of identifying the precise cause of his slip and fall, mere speculation is inadequate. The court noted that, the fact that a floor is slippery by reason of its smoothness or polish, in the absence of any proof of the negligent application of wax or polish, does not give rise to a cause of action, or even an inference of negligence.

At his deposition, the plaintiff testified that the waxed floor was not wet, that he did not see any accumulation of wax on the floor and he never experienced any slipperiness prior to his accident. Based on this testimony, the court found that, absent proof of negligent application of wax or polish, the fact that floor was slippery because of its smoothness or polished state did not rise to a cause of action.

Thanks to Katusia Lundi for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09537.htm

In Ozrech v. Fairleigh Dickinson University, Ozrech fell to his death from his fourth floor dormitory window. The fall was alcohol related, which was in violation of Fairleigh Dickinson’s (FDU) alcohol policy, and the FDU police failed to properly enforce the policy. Because of these facts, the lower court held that FDU was not engaged in the charitable objectives it was organized to advance, and Ozrech was not a beneficiary of such objectives, and as such FDU was not entitled to immunity under the charitable immunity act.

Following trial, FDU appealed, arguing it was entitled to immunity under the charitable immunity act and the Appellate Division agreed, holding that FDU’s failure to properly enforce their alcohol policies did not negate Ozrech’s status as a beneficiary of FDU’s educational works and as such immunity should apply.

The court noted that the statutory elements required to support a claim of immunity are (1) that the entity asserting immunity was formed for nonprofit purposes, (2) that it is organized exclusively for religious, charitable, or educational purposes, and (3) that it promoted such purposes at the time of the injury to the plaintiff, who was then a beneficiary, to whatever degree, of its charitable works. There was no dispute that FDU satisfied the first two elements. The question was whether Ozrech was a beneficiary at the time of the accident.

The Appellate Division reasoned that the act must be liberally construed, and that at the time of the accident, the person must be receiving the benefits of the charitable organization, at least to some degree. New Jersey Courts have previously held that the term “educational” in the context of the act does not mean solely scholastic activities. Merely being a student engaging in educational pursuits at a university makes someone a per se beneficiary under the act. Furthermore, Ozrech’s accident happened in university run housing, where he was provided with the educational opportunity to live with other students, share experiences and broaden his horizons. Ozrech was deemed to be receiving educational benefits and thus FDU was entitled to immunity under the charitable immunity act.

Thanks to Alison Weintraub for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/a5919-07.pdf

In Stevens v. Lincoln Center, the plaintiff tripped and fell in a restaurant located in the owner’s premises. Although the restaurant was not open for business at the time of the accident, it was located in the lobby of the building and had openings on each side, allowing visitors to walk through the restaurant to get from one point in the lobby to another. The plaintiff got her foot caught on the leg of chair. The plaintiff claimed that that furniture was randomly spread out in the room and chairs were piled up in the allegedly “darkish” room.

The owner entered into an agreement with the co-defendant to manage the restaurant and provide food and beverage service. While the agreement obligated the management company to maintain the premises in a safe and orderly condition, the owner retained the right to inspect the premises to ensure that it was properly maintained and to clean the premises if the owner was unsatisfied with the level of cleanliness. Moreover, the management company was obligated to remove all table and chairs from the restaurant in order for the owner to perform heavy duty cleaning and scrubbing of the restaurant. The owner’s employees cleaned the floor of the restaurant every night. Further, both the owner and the management company had control over the lighting in the restaurant.

Citing the agreement and deposition testimony, the court denied the owner’s motion for summary judgment because, even if the owner could be deemed an out-of-possession landlord, it was still liable for negligence based on the contractual obligation requiring the owner to make repairs and maintain the premises. The owner still retained a certain degree of control over the premises and could be held liable for the plaintiff’s accident.

http://www.courts.state.ny.us/reporter/pdfs/2009/2009_32903.pdf

Thanks to Maju Varghese for his contribution to this post.

The Third Circuit Court of Appeals in Pennsylvania held that an individual’s inebriated state did not render his attempted shooting of a woman accidental, and therefore did not trigger coverage under either his homeowner’s policy or his personal umbrella liability policy.
On March 25, 2005, Dr. Thomas Mehlman spent the afternoon drinking excessive amounts of alcohol at a restaurant. Afterwards, he was involved in a confrontation with Maria Iacono. In a drunken rage, he shot at her three times , and then killed himself. Iacono filed suit against Mehlman’s estate, which sought coverage under his policies. Both policies excluded coverage for bodily injury caused by “willful and malicious acts of the insured”.
The court held that Mehlman’s intoxication did not negate the intent on his part to harm Iacono. Mehlman’s repeated attempts to shoot Iacono revealed unmistakable intent on his behalf, therefore, the insurer did not have a duty to defend or indemnify Mehlman’s estate in the action.

http://www.claimsjournal.com/news/east/2009/12/22/106109.htm

Thanks to Heather Aquino for her contribution to this post.

The evolution of transportation from the horse and buggy to the automobile did more than revolutionize our mode of travel. It fueled and accelerated bodily injury claims as the demolition derbies continue on our public streets and highways. State legislatures have attempted to deal with the crush of auto-related litigation by passing varioius “no fault” schemes designed to reduce the number of lawsuits for minor, soft tissue injuries in return for the prompt payments of the injured party’s medical bills under PIP.

New Jersey is no different. Its latest version of a tort limitation was modeled on the New York statute that required a “serious injury” as a condition to suit. Known informally as the “verbal threshold,” the New Jersey statute bars suit for injuries sustained in an automobile accident unless the plaintiff falls into at least one of six categories of injury. Unlike New York’s statute, the policyholder makes an election at the time he purchases an auto policy: in exchange for a higher premium, he is not subject to the verbal threshold. Most policyholders select the limitation to suit and pay a lower premium. What happens if an out of state driver gets in an auto accident in New Jersey? What if both drivers are from out of state? Is the plaintiff subject to New Jersey’s verbal threshold in either situation?

In Zalilowicz v. Kelsey, both plaintiff and defendant were out of state drivers from Pennslyvania. Under the New Jersey No Fault scheme, a plaintiff is subject to the tort limitation unless a specific selection is made when he purchases his policy. However, the Deemer statute provides that an out of state driver is presumed to have selected the tort limitation if his insurer is authorized to underwrite insurance in the state of New Jersey. Simple enough if the plaintiff has an accident with a New Jersey driver. What about if both the plaintiff and defendant are from out of state?

The New Jersey Supreme Court held that the defendant does not get the benefit of the limitation-on-lawsuit where the defendant is from out of state and his insurer is not admitted in New Jersey. The Supreme Court reasoned that since such a nonresident driver is not eligible for PIP/No Fault benefits because his insurer is not admitted in New Jersey — and not subject to the Deemer Statute– then he does not get the benefit of the tort limitation. According to the court, if the defendant’s insurer is not part of the No Fault scheme for PIP purposes, he’s outside the statute for all purposes including the ability to use the tort threshold as a defense. Of interest, the Supreme Court almost invited the legislature to close this loophole and cited language that would achieve that goal.

If you have any questions about this post, please email Paul at

http://www.judiciary.state.nj.us/opinions/supreme/A8708ZabilowiczvKelsey.pdf

Traverso v. Guthaim, et al, was an insurance coverage case involving a dispute between, Charles Heidt , Inc, an insurance agency, and Encompass Insurance Company. Pursuant to the terms of an Agency Agreement , Encompass authorized Heidt to bind certain kinds of insurance contracts issued by Encompass, but subject to various limitations and underwriting quidelines. The trial court granted Encompass’ Motion for a directed verdict finding that Heidt’s authority to bind coverage was clearly and unambiguously limited by the Agency Agreement and the underwriting guidelines issued by Encompass, and that Heidt exceeded its authority when it attempted to add a three-family house to the insured’s existing homeowner’s policy. The Appellate Division affirmed .

http://www.judiciary.state.nj.us/opinions/a1562-07.pdf

In Alvarez v. Colgate Scaffolding, et al., the defendant testified that the sidewalk bridge it had installed was properly fastened, that third-parties often loosened the bolts and removed the cross-braces to transport materials, and workers and children were often seen sitting on this cross-brace, indicating it was securely fastened.

The court denied the defendant’s summary judgment motion because it had failed to show that a foreman had been present on the day of the installation and failed to present any other evidence indicating that the bridge was properly installed.

Furthermore, the court held that plaintiff’s act of sitting on the cross-brace was not so unforeseeable or extraordinary so as to constitute a superseding cause that absolves defendant of liability. Finally, the court held that, while plaintiff assumed the risk of losing his balance, he did not assume the risk that he would fall as a result of an insecurely fastened cross-brace buckling.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09404.htm

Thanks to Georgia Stagias for her contribution to this post.

Marilus Rodriquez suffered personal injuries in a motor vehicle accident with medical bills for treatment totaling $623,677. The Allstate policy providing PIP benefits to her had $250,000 per accident limits. After Allstate paid $250,000, another unpaid provider, Endo Surgical sought additional benefits over the Allstate policy limits. It argued that while its demand for arbitration was pending, Allstate had a duty to notify it that the insured’s PIP benefits were going to be exhausted. The appellate division rejected this argument and affirmed , finding that, absent bad faith, an insurer may settle with one claimant, notwithstanding that the settlement may exhaust the policy limits available for other claimants.

http://www.judiciary.state.nj.us/opinions/a2146-08.pdf

Section 240 of the New York Labor Law, commonly known as the “scaffold law,” is well known to apply strict liability to injuries relating to gravity related accidents. Previously, liability was imposed when a worker fell from a height, or when a falling object struck a worker.

The New York Court of Appeals recently held liability under Labor Law 240 was no so limited. In Runner v. New York Stock Exchange, a worker was moving an 800-pound reel of wire down 4 stairs. He tied one end of a rope to the reel, and looped the other end around a horizontal bar placed against a doorframe. The worker held onto the loose end of the rope, acting as a counter weight to control the reel’s decent. While the reel was moving down the stairs, the worker was pulled towards the horizontal bar and injured his hands. The jury found that the accident was not gravity related, but the trial judge granted a directed verdict in favor of the plaintiff. Defendants appealed.

The New York Court of Appeals unanimously held that the single decisive issue was whether plaintiff’s injuries were the result of the failure to provide adequate protection against a risk arising from a “physically significant elevation differential.” The question to ask is whether the harm flows directly from the application of the force of gravity to the object. If the answer is yes, there is strict liability under Labor Law 240. There is no requirement that the worker must fall or be hit by a falling object.

If you would like more information about this post, please contact David Tavella at .

http://www.nycourts.gov/ctapps/decisions/2009/dec09/197opn09.pdf