Monthly Archives: October 2013

A “Threshold” dismissal – Yes, they do happen in NY!

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In Batista v Porro, a pedestrian plaintiff was struck by a motor vehicle.  The trial court denied the defendant’s summary judgment motion made on the basis of plaintiff’s failure to meet the serious injury “threshold,” pursuant to Insurance Law § 5102(d).  The First Department reversed, and dismissed plaintiff’s claim due to lack of proof of such an injury.

As we have reported in the past (See http://blog.wcmlaw.com/2013/05/uncertainty-world-threshold-motions-ny/) recent interpretation of “threshold” injuries provides plaintiffs with a distinct advantage.   If the plaintiff’s doctor addresses and rejects the defendant’s expert reports, a denied threshold motion will likely follow.

In Batista, the plaintiff complained of a right knee injury for which he had arthroscopic surgery.  The defendant’s medical expert examined the plaintiff and documented no deficits in range of motion of the knee.  Moreover, he opined that the operative report contained findings consistent with plaintiff’s age and preexisting condition.  Plaintiff’s medical report did not rebut these findings and was, thus, insufficient to raise a triable issue of fact.  Although the plaintiff claimed that he was unable to do everyday activities, he did not have objective medical evidence to substantiate his claims.  Thus, under the circumstances, the plaintiff could not vault the threshold.

Special thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at .

Premises Liability Mode-Of-Operation Theory A Matter of Probability (NJ)

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The mode-of-operation theory of liability for a premises liability action against a business is a tempting strategy.  It absolves an injured plaintiff of the burden of proving that the business owner had notice of a dangerous condition in time to address it.  As tempting as it is, it has its limitations.  For one, the plaintiff must show that the alleged condition was related to the manner in which the business is conducted.

Earlier this year, in February, we reported that the New Jersey Appellate Division issued an unreported decision, Cashour v. Dover Parkade, LLC, that limited application of the mode-of-operation theory where the plaintiff was unable to sustain a link between the object she slipped on and the defendant store’s business operations. In that case, the plaintiff fell on a plastic bag that was in front of a store.  However, she could not link the bag to the store’s operations.

Now the Appellate Division has issued a reported decision addressing this theory once again.  In Arroyo v. Durling Realty, LLC, the plaintiff alleged that she slipped on a discarded telephone calling card left on the sidewalk in front of a convenience store.  The plaintiff linked the cards to the store, noting that the phone cards were displayed on racks near the store’s cash register next to the exit doors.  She argued that due to the proximity of the cards to the door, the business should have foreseen that someone might buy a card, use it, and then immediately discard it on the sidewalk.

With no real proof as to actual or constructive notice, the plaintiff’s only chance was through this mode of operation argument.  However, she had to convince the judges that “as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business.”  The judges were not persuaded.  Since the patron would have selected the card, paid for it at the cashier, and left the store, the nexus between a self-service operation and the card on the sidewalk was too attenuated.  Summary judgment was affirmed.

This reported decision should help to clarify that notice is still a required proof burden for a claim against a retailer with limited exceptions.

For more information, contact Denise Fontana Ricci at .

Bar Patrons Carrying Guns = Liability For Bar Owners (PA)

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In Pennsylvania, club owners have a duty to protect patrons from harm even when not caused by club employees.

In Stone v. Super Supreme, a Philadelphia jury awarded $2.5 million to Cheryl Stone, the mother of a club patron (Blease Bruno), who was shot and killed while visiting the nightclub Upper Deck.  Bruno was an off-duty security officer who often patronized Upper Deck after his shift ended.  Upper Deck was known as popular spot for off-duty security officers in the area.  On the night of his injury, he was shot and killed at approximately 4:00am,  when another patron got into a violent argument with Upper Deck’s security.  The patron shot at the club’s security guard but hit Bruno, who was killed.

Judge Messiah- Jackson of the Philadelphia Court of Common Pleas ruled that defendants Super Supreme Co. (the club owners) had knowledge that the location and the character of the business were likely to have individuals with weapons, including guns. The fact that the owners had purchased metal detectors, but did not install them, suggests that the owners anticipated dangerous conduct on the part of third persons and under the Restatement (Second) of torts, had a duty to take precautions and afford protection to customers. Judge Messiah-Jackson found that there was enough evidence to hold the two club owners individually liable as well since they were present at the club during the night of the shooting and because the court found evidence that the corporate entity, Super Supreme, was  merely a “sham corporation” that the owners were hiding behind to escape liability.

Special thanks to Remy Cahn for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Exercise … too risky? (NY)

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Experts say that exercise is good for your health.  But those who participate as weekend warriors or regular gym rats know that exercise can also lead to injury.  In fact, injury is recognized as a common risk of sport.  As such, those of us who choose to exercise in the face of the risk, do so at our own peril. The plaintiff in Ramirez v. Lucille Roberts Health Clubs, Inc. found out that the courts may not be receptive to claims for common injuries associated with exercise.

Ramirez claimed that she was injured while attending one of the defendant gym’s step-aerobics classes.  The gym moved for summary judgment, arguing that the plaintiff had participated in over a hundred step-aerobics classes prior to the accident and assumed the associated risks.  The lower court granted the motion and the Second Department affirmed.  The Appellate Division held that someone voluntarily participating in a recreational activity assumes the commonly appreciated risks.  Given the plaintiff’s prior experience, the court found that the plaintiff knew the risks involved in exercising (presumably in a spandex leotard).

Special thanks to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Co-Defendant Granted MSJ: Don’t Despair, Change Venue! (NY)

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Venue can play a substantial role in any case. This is particularly so in New York, where there is not only a substantial difference in jury-make-up across the jurisdictions, but differences in the law amongst the four Appellate Division Departments.

Under CPLR 503, venue is proper in the county in which one of the parties resides when the action was commenced. For corporations, this would be their principal place of business. A wise plaintiff, facing an unfriendly venue, may sue a party with tenuous liability just to obtain a more favorable venue. Although this may be proper at the outset, once that defendant is dismissed from the case, there may be no other grounds to support venue in that county. Such was the case in Whelton v. Dayton Beach Park No. Corp.

In Whelton, the Supreme Court granted one of the defendant’s motions for summary judgment. That defendant’s principal place of business was the only basis for plaintiff’s suit in Kings County. So once that defendant was dismissed, the remaining defendants moved to change venue to Nassau County, a far more favorable defense jurisdiction. The Supreme Court denied the motion, but the Second Department reversed. It held that since the only party in the action whose presence supported venue in Kings County, the Supreme Court should have transferred the case to Nassau County.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at .

 

Regular Maintenance Does Not Qualify For Labor Law Action (NY)

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A fall from an elevated height, due to work that is incidental to regular maintenance does not create a cause of action under Labor Law § 240(1).

In Hull v. Fieldpoint Community Assn., Inc., plaintiff was allegedly injured when she fell from a roof while she was cleaning out leaves from the roof gutters of a residence in a condominium development.  Her work was performed pursuant to a contract between her employer and the defendant Fieldpoint Community Association, Inc., requiring her employer to clean gutters and leaders, inspect, and caulk openings three times per year.

The defendants moved for summary judgment on plaintiff’s Labor Law § 240(1) claim, and plaintiff cross-moved for summary judgment on the issue of liability.  The Appellate Division, Second Department, upheld the lower court’s decision in granting defendants’ motion for summary judgment, and in effect denying plaintiff’s motion.  The Court held that although Labor Law § 240(1) applies to commercial “cleaning” which is not part of construction, demolition, or repair, such as commercial window washing and sandblasting, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris.  Therefore, the defendants established, prima facie, their entitlement to judgment as a matter of law with respect to the cause of action pursuant to Labor Law § 240(1).

Hull established that people performing regular maintenance at an elevated height better take precautions, as there will be no cause of action under the Labor Law.

Special thanks to Johan Obregon for his contribution.

For more information contact Denise Fontana Ricci at .

Pennsylvania Weighs in on Cows and Cars.

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Although I confess to no personal experience in this regard, cows and cars apparently do not mix. But when they do mix (or at least collide), a lawsuit can result. A PA court was recently asked to weigh in on the standard of care owed in such cases in the case of Lefebvre v. Bielak. In the case, plaintiff Lefebvre was a passenger in a car when that car hit a cow that had wandered into the roadway and was owned by farmer Bielak. The question before the court was whether the claim against the farmer sounded in negligence or in strict liability. The court concluded that negligence principles applied. The good news for farmers everywhere is therefore that they are not absolutely responsible for the actions of their cows – good news indeed as cows are known to have minds of their own!

If you have any questions about this post, please contact Bob Cosgrove at .

Who Let the Dogs Out? Not the Defendants (NY)

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Plaintiffs bitten by vicious dogs often sustain serious injuries. Therefore, it is no surprise that they can also look forward to a significant payday. But that does not mean that courts won’t put a leash on plaintiffs’ ability to obtain judgments against those with a remote connection to the dog in question.

In Mercado v. Ovalle, the plaintiff was attacked by two pit bulls that were kept on a lot next to a grocery store. According to the plaintiff, the defendants, the grocery store and its owner, helped care for the pit bulls, occasionally gave them food, once took them for a walk, and had access to the lot where they were kept.

The defendants moved for summary judgment, which the Bronx County Supreme Court granted. The First Department affirmed the decision, holding that a defendant could not be held liable for the plaintiff’s injuries in the absence of any evidence that the defendant owned or harbored the dogs, or controlled the lot where they were kept.

However, the court also noted that there was no evidence that the pit bulls were ever in the store or that the defendants entered the adjacent lot, suggesting that the outcome may have been different had the defendants had more significant contacts with the pit bulls. The lesson from Mercado may be that it is fine to enjoy animals, just don’t assume any responsibility for them.

Thanks to Mike Gauvin for his contribution to this post. If you have any questions, please email Paul at

Foreign Country Ruled The Appropriate Forum For Damages Sustained in Dubai (NY)

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In Boyle v. Starwood Hotels & Resorts Worldwide, Inc., New York’s Appellate Division, Second Department affirmed the granting of defendant’s motion to dismiss the action on the basis of forum nonconveniens. The Appellate Division explained that the doctrine of forum nonconveniens allows a court to stay or dismiss an action when, although there may be jurisdiction, it is determined that there is another forum with closer ties to the case. In Boyle, plaintiffs are residents of the United Kingdom and France. The complaint alleges that plaintiffs contracted a disease during separate stays at defendant’s hotel in Dubai. The sole connection to New York in this case was defendant’s principal place of business.

The trial court granted defendant’s motion, noting that the action had closer ties to the United Kingdom, France or the United Arab Emirates. The Appellate Division conditioned the order on the the defendant accepting service in any new action and waiving any defenses, including statute of limitations, that were not available when suit was initially filed in New York. Both modifications provided that the new action  should be commenced within 30 days after defendant provided plaintiff with a signed stipulation.

When filing a motion to dismiss based upon forum nonconveniens in New York, make sure that you are comfortable with the jurisdiction you believe is proper for the case because you will be required to agree to the alternate forum’s jurisdiction should your motion be granted.

Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at

Plaintiffs May Name Insurance Carriers as Defendants in UIM Cases (PA)

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The Pennsylvania Superior Court recently held in Stepanovich v. McGraw that co-defendants in underinsured motorist cases are not prejudiced under the Rules of Civil Procedure where the plaintiff names his own insurance carrier as a defendant.

In Stepanovich, the underlying action arose out of motor vehicle accident wherein defendant McGraw allegedly ran a red light and struck the plaintiff while he was crossing the street. In addition to suing McGraw, the plaintiff also named State Farm as a defendant for failure to pay underinsured motorist benefits. Despite the plaintiff’s foresight, however, the trial court sustained McGraw’s preliminary objections to the suit and bifurcated the claims so as to insulate the individual defendant from inadmissible evidence of (inadequate) insurance under Pa.R.C.P. 411. Still, the trial court allowed State Farm to participate in the case on the condition that it did not allude to insurance coverage or payments. Ultimately, an Allegheny County jury returned a complete defense verdict in McGraw’s favor and denied the plaintiff recovery for his injuries.

Dissatisfied with the outcome below, the plaintiff appealed to the Pennsylvania Superior Court where he argued that the trial court unnecessarily confused the jury by refusing to identify State Farm as a defendant in the case. Moreover, the plaintiff contended that he was unfairly prejudiced by having both defendants contest liability while only one remained available on the verdict sheet.

Interestingly, the Superior Court agreed with the plaintiff’s articulation of the law but nonetheless denied his request for a new trial. Specifically, the Superior Court explained that while Pa.R.C.P. 411 generally prohibits the introduction of liability insurance into evidence because it invites the jury to overvalue damages, allusions to underinsured motorist coverage are unlikely to prejudice the defendant where such benefits do not by their nature indemnify third-party tortfeasors. Nevertheless, the plaintiff in Stepanovich failed to demonstrate actual prejudice insofar as State Farm’s absence from the verdict sheet did not bear directly on the question of McGraw’s negligence. As a result, the plaintiff could not demonstrate reversible error and the trial verdict was affirmed in favor of the defense.

Given the nature of the Superior Court’s decision, Stepanovich serves as a reminder that the prohibition against evidence of insurance is not absolute, but rather depends on the specific relationship between the type of insurance and the defendants in the case.

Thank to law clerk Adam Gomez for his contribution to this post.  If you have any questions, please email Paul at