Slippery When (possibly, maybe) Wet – Not Enough to Defeat SJ Motion (PA)

On August 15, 2017, the Superior Court of Pennsylvania affirmed summary judgment in favor of Coakley & Williams Hotel Management Company in Demisew v. Coakley & Williams Hotel  The case stems from a slip and fall at a Days Inn, managed by Coakley & Williams on October 16, 2013.  Specifically, plaintiff Gela Demisew fell down a stairwell at the Days Inn, due to an allegedly slippery step.  She alleged that Coakley & Williams were negligent in allowing this dangerous condition to persist.

In September 2015, the trial court granted summary judgment in favor of Coakley & Williams and the Plaintiff filed a timely appeal.  On appeal, the Plaintiff argued that Coakley & Williams owed her a duty, as a business invitee, to exercise reasonable care in discovering the dangerous condition.  To support her assertion, the Plaintiff alleged that Coakley & Williams only had the stairwell cleaned on a weekly or “as needed” basis.  Further, the Plaintiff asserted that it rained on the day of the accident and someone could have tracked water into the stairwell as a result.

However, the Plaintiff testified that she did not know the substance she slipped on and never revisited the accident site.  Further, the director of maintenance at the Days Inn testified that the maintenance staff walked the property twice per day including the stairwells.  The director of maintenance also noted that the stairwell was cleaned once per day and no issues were documented on the date of the accident.

Thus, the court held that the Plaintiff merely speculated at the cause of her slip and fall and did not put forth any evidence to show whether the step was slippery or that the hotel had constructive notice of the alleged dangerous condition.  Thus, the grant of summary judgment was proper.   Had plaintiff testified that she was certain she slipped on tracked in rain water, as opposed to being uncertain of what she slipped on, she may have raised an issue of fact as to defendant’s negligence.   Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

Homeowners Lose MSJ after Invitee Steps Through Sheetrock Ceiling (NY)

Obviously, a homeowner never wants to be sued in a personal injury lawsuit arising out of an accident on his or her property. Unfortunately, simply owning the property is enough to place a duty of care onto the owner of the property to maintain it in a safe condition.   This duty of care extends to anyone that may come onto the property for any reason, whether a homeowner knows of their presence or not.

On August 23, 2017, the Court affirmed the trial court’s order denying the defendants motion for summary judgment in Gallardo v. Gilbert, 2017 Slip Op 06256 (2d Dept. 2017). The plaintiff was at the defendants’ home to perform cleaning services, including cleaning out the attic above the garage. While in the attic, plaintiff stepped from a plywood landing, and fell through the sheetrock ceiling of the garage below sustaining injuries.

The Court upheld the standard that a homeowner has a duty to maintain the premises in a reasonably safe condition. The only time in which a homeowner does not have a duty is when a condition is open, obvious and not inherently dangerous.

The defendant homeowners argued that plaintiff stepped onto a portion of the attic that did not have the plywood to step on and that the danger of falling through the sheetrock ceiling was open, obvious and not inherently dangerous. The Court found that the homeowners failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open, obvious and not inherently dangerous as a matter of law.  In fact, the condition may have constituted a “trap,” making an injury all the more foreseeable.

In our practice, we come across of claims just like this one, where an invitee was injured in a client’s. With the Court continuing to uphold the stringent duty to maintain a private home, the uphill battle to get these cases dismissed continues getting steeper.  Sadly, all invitees should be regarded as potential claimants.  (Sometimes, the advice of defense counsel isn’t as neighborly as we would like!)   Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.

 

Store Owes No Duty to Control Unexpectedly Rowdy Patrons (PA)

On August 17, 2017, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of several defendants in Reason v. Kathryn’s Korner Thrift Shop et al.  The case involves a fight at a thrift shop in Philadelphia.  On the date of loss, Reason went shopping at Kathryn’s Korner Thrift Shop, where Defendant Riley was a cashier, and her daughter, Thomas, was also present at the store.  (Thomas has a history of mental illness, but there is no evidence that she was violent.)  As Reason was making purchases at the register, Thomas accused Reason of throwing something at her mother, and Reason and Thomas began fight.Riley pushed a panic button at the store and called the police with her phone.

We surmise Reason lost the fight, because she filed suit against Riley, Thomas, the thrift store, and the other owners of the property, alleging various claims for negligence and assault and battery.  All of the defendants, except for Thomas, were granted summary judgment.  Reason then appealed on the issues of whether the defendants owed her a duty to protect her against acts by third persons and whether they breached a duty to provide aid.

In Pennsylvania, there is generally no duty to control the acts of third parties unless a defendant stands in a special relationship with either the actor or the victim.  The relationship between a business and its invitee is one of those relationships.  Pennsylvania then follows the Second Restatement of Torts section that states that a possessor of land owes a duty to invitees for negligent or intentional acts by third parties only if they can reasonably anticipate such conduct.  The court found no evidence that defendants should have reasonably anticipated Thomas’s violent behavior.

When it comes to a duty to aid, Pennsylvania has rejected the Restatement of Torts and only imposes a duty upon businesses to call for medical professionals or police when necessary.  Businesses and their employees are under no duty to jump into the role of a medic or police officer since this would then place untrained persons in harm’s way as well.  The court again affirmed the lower court’s decision and found that because Riley pressed the store’s panic button and called the police on her phone, that she and the other defendants had fulfilled their duty to come to Reason’s aid.  As such there was no breach.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Failure to Call, as Trial Witness, Attorney Present at EUO results in award to Insured-Plaintiff (NY)

In Pierre J. Renelique MD, P.C. v Travelers Ins. Co., Kings County Civil Court recently examined whether a defendant-insurer owed first party benefits to a claimant, after the insurer disclaimed coverage due to a claimant’s failure to appear for an EUO.

The Court found that here, the defendant-insurer failed to prove that plaintiff’s assignor failed to attend the scheduled Examination Under Oath EUO.

At a bench trial in Kings County, the insurer-defendant contended that the assignor of the plaintiff, failed to attend any of the several scheduled Examinations Under Oath impeding their ability to investigate the matter.  In order to establish this defense, the defendant must have shown that not only were the EUO requests timely made to the assignor, but that the assignor failed to appear.  Each of these elements must be met by someone with personal knowledge.

Defendant produced as a witness, an attorney who oversaw EUO scheduling and the EUO process for the firm representing the defendant in this matter.  The attorney testified as to the office procedure regarding the scheduling of EUO’s and the procedure followed when an assignor failed to appear for an EUO.  The attorney testified that she mailed out each EUO request to the assignor according to office procedure and she based the requests upon attorney affirmations that the assignor failed to appear for the EUO.  The Court credited her testimony regarding the preparation and mailing of the letters scheduling the EUO but found that the witness had no personal knowledge of the assignor’s actual failure to appear.  Despite the fact that she testified that she reviewed affirmations from attorneys at the EUO who swore that assignor failed to appear, the Court found this failed to meet the threshold for personal knowledge.  Accordingly, Judgment was awarded in favor of the plaintiff.

The Court’s ruling demonstrates importance of laying a complete and proper foundation for establishing all the elements of the defense.  Had the defense called someone present at the EUO’s, or perhaps, produced a certified transcript of the EUO, documenting the assignor’s failure to appear, the insurer may have prevailed.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Slip and Fall Case Doesn’t Hold Water (PA)

A Plaintiff was denied recovery in a slip and fall case when a jury concluded that he failed to prove that a water leak caused his injuries.  In Bowman v. Giant Eagle, C.P. Allegheny No. GD-14-016640, the plaintiff sued a Giant Eagle grocery store in Pittsburgh, claiming that he slipped on liquid near a water fountain, adjacent to the entrance to the men’s room.  The plaintiff alleged that Giant Eagle was negligent in allowing the dangerous condition to exist.

In support of his claim, the plaintiff alleged that an employee at the store had walked by the accumulation of water at the time the accident occurred, but did not address the issue.  The plaintiff also claimed that the water fountain was leaking and that the store had failed to repair the leak.

The plaintiff sustained multiple fractures to his right leg, underwent surgery and had hardware implanted.  The plaintiff later participated in physical therapy over the course of a few months, and eventually underwent a second surgery to remove some of the hardware.  The plaintiff sought damages for medical costs as well as past and future pain and suffering.

Giant Eagle did not dispute the plaintiff’s injuries or his treatment, but did argue that there was no evidence to support the plaintiff’s claim that the water fountain had been leaking.  Giant Eagle cited a store manager’s incident report that found no water on the floor and no leaking from the fountain in support of its defense.  Ultimately,  the jury found that Giant Eagle was negligent, but that its negligence was not a factual cause of any harm to the plaintiff.  This case serves as an ever-important reminder that plaintiffs bear the ultimate burden of proving each and every element of their case, and that an effective defense will force plaintiffs to carry this burden at every step of the litigation process.  Just because a defendant may have been negligent does not equate to proximately causing a plaintiff’s injury.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Managing Expectations – Second Department Upholds Dismissal of Plaintiff’s Claims After Fall During Subway Extension Project (NY)

In Lamar v Hill Intl. Inc, the Second Department ironed out the standard for imposing liability under the Labor Law upon construction managers.

Plaintiff Willie Lamar was an employee of a joint venture, hired by the MTA to work on the extension of the Number 7 subway train to the west side of Manhattan. During the project, he was injured when he fell approximately ten feet from atop a stack of blasting mats. He commenced an action against multiple parties, including the project construction manager, Hill International, alleging violations of Labor Law §§ 240(1) and 241(6). Plaintiff moved for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241(6) causes of action, and the defendants cross-moved for summary judgment dismissing the complaint on the ground that they lacked authority to supervise or control the plaintiff’s work, and therefore were not liable under the Labor Law.  The trial court denied the plaintiff’s motion and granted the defendants’ motion to dismiss the complaint. Plaintiff appealed.

On appeal, the Second Department upheld the trial court’s decision, and explained that for a construction manager to face liability for alleged violations of Labor Law §§ 240(1) and 241(6), the plaintiff must demonstrate that the construction manager “had the authority to exercise supervision and control over the work that brought about the injury so as to enable the defendant to avoid or correct an unsafe condition.” As a construction manager is neither a property owner nor a general contractor, it will generally not face liability under the Labor Law unless it acts as an agent to either of those entities. To be considered owner of general contractor’s agent under the Labor Law, a party must have “supervisory control and authority” over the plaintiff’s work.

Hill’s contract with the MTA provided that Hill was responsible for coordinating the work, in terms of cost, time, safety, and quality control — but the contract did NOT provide Hill with authority to supervise or control the work of the contractors, including the plaintiff’s employer.  If an unsafe condition was found, Hill was empowered to make recommendations, provide instructions to contractors regarding correcting unsafe conditions, and stop work only in the event of an emergency. Moreover, the parties’ own deposition testimony showed that Hill did not supervise or control the plaintiff’s day-to-day work.

Accordingly, Hill made a prima facie showing that it did not supervise of control the work, and the dismissal was affirmed.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

First Department Enforces Settlement Reached via Emails After Plaintiff Attempted to Renege (NY)

By and large, most personal injury lawsuits settle.  Following discovery and as the liability picture becomes clearer the parties can engage in good faith settlement discussions and equitably resolve the matter. An essential element of good faith negotiations is that the attorneys have the authority to negotiate and settle. Plaintiff attorneys must be in sync with their clients during this phase, since settlement is ultimately a plaintiff client decision.  Once terms are agreed, the attorneys, clients, and carriers reasonably believe the matter is resolved and all that remains is the final paperwork and draft.

Unfortunately, there are occasions when a party either gets cold feet or blatantly reneges on an agreement.  Frustration, consternation, and, in matter of Jimenez v Yanne, motion practice and appeals to enforce settlement follows.    In Jimenez The First Department Appellate Division, reversed the trial court’s decision and granted the defendants’ motion to enforce a settlement agreement.

CPLR Section 2104 states: “an agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered…” The trial court rejected the defendants’ argument that a series of emails negotiating and agreeing to the settlement was enforceable.  Defendants’ attorney wrote, “Ok, we can agree to settle this matter for $13,000 to Jimenez and $17,000 to Morales.  Please confirm.  Thanks.”  The trial court note that defendants’’ attorney’s name was not typed at the end of her email.  Plaintiff attorney replied, “All good.  The power of email.” In a following email on the same day, plaintiffs’ attorney emailed, “Are you doing releases?” Plaintiffs’ attorney’s name was not printed at the end of either email.  The court found that as plaintiffs’ attorney did not type is name and the end of his email that confirmed the settlement; the emails do not qualify as signed writings pursuant the N.Y. General Obligations Law or the case law.  Therefore the settlement agreement was not binding upon plaintiff Morales, who changed her mind regarding the settlement.  (Plaintiff Jimenez provided a Stipulation of Discontinuance and a General Release).

In reversing, the appellate division found that the email communications between the plaintiffs’ counsel and defendants’’ counsel sufficiently set forth an enforceable agreement to settle the claims, including that of Morales.  The appellate division noted that plaintiff counsel typed his name at the end of the email accepting defendants’ office, which satisfied the CPLR requirement that settlement agreements be in a “writing subscribed by him or his attorney” in order to be enforceable.

This case highlights potential pitfalls of the negotiating process and the old Yogi Berra adage, “It ain’t over till it’s over.”  Professional ethics dictate that an agreement is an agreement.  Professional practice, however, illustrates that that is not always the case.   The attorneys signing their names to an email took on added significance, which resulted in appellate practice — and added litigation costs — over a relatively modest settlement.    Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Municipal Animal Shelter “Sheltered” From Liability In Dog Bite Case (NY)

New York State is relatively lenient when it comes to imposing liability on dog owners in dog bite cases: an animal owner will be held liable for a dog bite when he knows or should have known about his animal’s vicious propensities and those propensities cause the plaintiff’s injuries.  A recent decision from New York’s Second Department shows that New York’s relatively lenient standard is even more lenient when the defendant is a government-run animal shelter.

In Abrahams v. Mt. Vernon, the plaintiff was the mother of an infant who was attacked by a dog when visiting the back room of an animal shelter.  In its motion for summary judgment, the City relied on its municipal status to argue that it could not be held liable.  The court agreed, and dismissed the complaint against the City.  In doing so, the court recognized that a municipality can only be held liable in this context if it had a special relationship with the plaintiff, which could only be proven if: (1) the municipality violated a statutory duty enacted to protect a specific class of persons; (2) it voluntarily assumed a duty on which the plaintiff justifiably relied to its detriment; or (3) it assumed control in the face of a known, blatant, and dangerous safety violation.

Because the City merely provided a governmental function designed to benefit the public at large, there was no special relationship and the City could not be held liable.  In passing, the court noted that the City would not have been liable under the standard applicable to private persons either, as there was no evidence of vicious propensity for this particular dog.

Abrahams is a reminder that government often enjoys greater legal protection than those it governs.  And both governments and private citizens who own dogs have greater protections from potential liability in New York than elsewhere in the United States.  Thanks to Michael Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

 

GC’s Right of Supervision Over Subcontractor Work is Key to Determination (PA)

On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against  Fairman’s Roof & Trusses, Inc. (“Fairman’s”).

Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor.  These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn.  The collapse left Brian Baird trapped beneath four trusses and seriously injured him.  Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses.

Fairman’s also filed a complaint to join Fisher as an additional defendant.  In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium.  Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties.

The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s.  In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit.  The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41.  Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants.  The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit.  Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense.  In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do.

The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work.  Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him.  Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work.  Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher.

As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor.  Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Property Owner and Snow/Ice Contractor Shielded Against Slippery Plaintiff (PA)

On July 24, 2017, the Superior Court of Pennsylvania summary judgment in favor of the defendants in Castaldi v. Light Acadia 11-89 et al..  The case arose out of an alleged slip and fall when on January 17, 2012, the plaintiff, Dina Castaldi (“Castaldi”), claimed she fell in the parking lot of a shopping center that was owned by Light Acadia 11-89, LLC (“Light Acadia”).  She claimed there was a patch of ice that caused her to fall.  Defendant Grass Works Landscape Management, Inc. (“Grass Works”) was retained by Light Acadia to perform snow and ice removal at the parking lot.

Both Light Acadia and Grass Works filed for summary judgment on the basis of the hills and ridges and out of possession landlord doctrines.  The trial court granted both of their motions.  Castaldi then appealed.

In Pennsylvania, the hills and ridges doctrine is designed to protect landowners from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate.  Courts recognize that to impose a duty on landowners to keep their walkways free of ice and snow at all times is an impossibility.  Therefore, to make a case, a plaintiff must show: 1) that snow and ice accumulated to a degree to unreasonably obstruct travel and to constitute a danger; 2) that the property owner had notice of such condition; and 3) that the accumulation caused their fall and injuries.  A plaintiff can also make a case if they show that an accumulation was from an “artificial origin”, i.e. plowing.

The court agreed with the defendants and found the Light Acadia had no notice of snow/ice accumulation in the lot and that the accumulation was not large enough to constitute a danger.  In addition, the court stated that Grass Works was covered by the hills and ridges doctrine because it was actively treating snow and ice with salt and thus was acting reasonably.  The court also found that Light Acadia was not liable because it was an out of possession landlord, and owed no duty to third-parties.  As such, Light Acadia was granted summary judgment on this point as well.

Courts have recognized owning property as a benefit, on the whole, to society and seek to encourage.  As such, several defenses have been established in common law and statute to protect landowners in certain situations.  The hills and ridges and out of possession landlord doctrines are two examples of such defenses.

It is important therefore to recognize early on the type of ownership that a client has in a property, their interest in the property, how they use it, whether they have leased it out, and other factors to see if they qualify for a certain defense. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.