Anyone who has gone to the movie theater to catch the latest flick knows to tread carefully when exiting the theater. No matter how many ushers and cleaning crew are available, it’s a challenge to keep the floors completely free of any loose popcorn, snacks, or general debris in between movie showings.
In Frankel v. Edgewater Multiplex Cinemas, et. al., plaintiff filed a claim seeking damages for injuries sustained after a slip and fall in defendant’s movie theater. It was a crowded night at the theater, so plaintiff decided to sit in the dreaded first seat of the first row which was adjacent to an emergency exit door. When the movie ended, plaintiff attempted to exit towards the lobby, when he slipped and fell into the metal bar of the emergency exit door suffering a crush avulsion and laceration to his forehead.
Plaintiff testified that he had seen “litter” when he first sat down in the theater before the movie began, but “paid it no mind.” However, plaintiff was unable to identify what he had fallen on at the time of the accident. The defendant indicated that not only did the theater have ushers that would clean the theaters between movie showings, a “breach person” is responsible for inspecting auditoriums each hour to check sound levels, lighting levels, cell phones, talking patrons, or any items posing a tripping hazard. The theater showed evidence that the breach person had inspected the theater on an hourly basis, including two inspections which took place approximately half an hour before plaintiff’s accident.
The appellate court found that although there is a duty of care of business owners to eliminate dangerous conditions and keep the premises reasonably safe, plaintiff failed to show that defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Plaintiff could not identify what he had slipped on, and therefore could not establish that defendants were aware of the condition that caused plaintiff to fall. As such, the appellate court affirmed the trial court’s decision and affirmed defendant’s dismissal from the lawsuit. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.
On March 6, 2019, the Pennsylvania Superior Court affirmed a judgment entered in the Court of Common Pleas Monroe County in Steudler v. Keating. The case arises out of a tragic accident in which Kirkland Keating’s car struck and killed Victor Angel Resto while Resto and Steudler were walking on the side of a highway. At trial, it was undisputed that the Accident occurred on October 19, 2011 at 10:00 pm. There was also no dispute that Decedent and Steudler were walking in the dark without any flashlights on the same side of a two-lane road as vehicles traveling in the same direction.
However, facts concerning where Decedent and Steudler were walking, Keating’s driving and the weather and visibility conditions were disputed. According to Keating, he had been obeying all traffic laws at the time of the Accident and did not see Decedent before his SUV struck Decedent. Further, both Keating and the responding police officer testified the road was dark and it was raining heavily at the time of the Accident. The police officer also noted the Decedent was wearing dark clothing and he found one of Decedent’s shoes lying partially on the white line of the road. As such, Keating’s expert opined that Decedent was walking on the road itself at the time of the Accident and not on the shoulder.
After deliberation, the jury returned unanimous verdicts finding Keating was negligent, but Keating’s negligence did not cause harm to the Decedent and Steudler. Steudler and Decedent’s estate appealed on the ground that the verdicts were against the weight of the evidence. Based on the verdict sheet, the jury found that the defendant was negligent, but that the negligence did not cause harm to the plaintiffs, which seems at odds with the fact that there was 1) negligence and 2) a collision with the pedestrian plaintiffs.
In Pennsylvania, a new trial cannot be granted on the ground that the verdict was against the weight of the evidence if the evidence at trial was conflicting and the jury could have decided in favor of either party. Here, both Keating’s negligence and the cause of Decedent’s death were disputed at trial and the evidence was conflicting. Therefore, the PA Superior Court affirmed the trial court’s ruling. Thanks to Garrett Gittler for his contirbution to this post. Please email Brian Gibbons with any questions.
In Blanco-Sanchez v. Personal Service Ins. Company, a New Jersey Appeals court ruled that unlicensed drivers are not entitled to personal injury protection (PIP) benefits for car crash injuries even if they have been given permission to drive a car by the owner.
Norma Blanco-Sanchez suffered injuries in a car crash while driving her mother’s car. Sanchez sought PIP benefits to cover her medical bills under her mother’s policy, which provided such coverage for up to $15,000 in covered medical expenses at the time of the crash. After the insurer denied the application, Sanchez filed suit. Personal Insurance immediately moved for summary judgment and the trial Court granted the motion, reasoning that “while the PIP portion of defendant’s policy did not contain a specific exclusion for unlicensed drivers, the argument is not whether it contains an exclusion…you can’t give permission to extend the coverage in a situation where they couldn’t have obtained coverage to begin with.”
Sanchez appealed and argued that the policy did not “expressly” exclude such coverage for situations such as this. However, Sanchez’s mother knew that she was an unlicensed driver at the time the accident occurred.
The appellate panel affirmed the trial Courts decision stating that Sanchez cannot recover PIP benefits as a matter of public policy because an owner cannot give permission to a driver who is known to be unlicensed. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.
In Mader v. Duquesne, a fifty-four-year-old masonry contractor was conducting chimney repair at a home, and was electrocuted when an aluminum extension ladder he was carrying made contact with underground electrical power lines. As a result, plaintiff was severely burned on his arms and feet, underwent multiple surgeries, and his feet were amputated.
Plaintiff filed a personal injury action against the owner of the power line alleging negligence in maintaining the electric lines too close to the ground. The jury returned a verdict where the power line was found 60% negligent and the plaintiff 40% negligent. The trial court instructed the jury that if liability was found, plaintiff was entitled to compensation for past medical expenses, past lost earnings, future lost earning capacity, past and future pain and suffering, embarrassment and humiliation, loss of ability to enjoy the pleasures of life and disfigurement. The jury awarded only past medical expenses and future medical expenses. The plaintiff then filed a motion requesting a new trial on the issue of damages. Defendant agreed that a new trial on past pain and suffering was appropriate but objected to a new trial on all damages. The trial court granted the plaintiff’s motion and the defendant appealed.
The Superior Court affirmed in part and reversed in part. First, the Court held that the trial court erred in ordering a new trial on the issue of past medical expenses because those damages were stipulated to by the parties. The Superior Court also held that that the trial court erred in granting a new trial on future medical expenses since that issue was fully developed and the jury determined its verdict regarding future medical expenses after fully evaluating the evidence presented. However, the Superior Court affirmed the trial court’s decision to order a new trial on past wage loss and loss of future earning capacity stating that the jury’s verdict for zero damages was against the weight of the evidence.
Finally, the Court affirmed the trial court ordering a new trial on pain, suffering, loss of enjoyment of life’s pleasures and disfigurement. Interestingly, the defendant’s strategy on appeal was to concede that plaintiff was entitled to a new trial on past pain and suffering, based on the testimony proferred, but instead argued that plaintiff was not entitled to a new trial on present and future pain and suffering. This was bold but well thought-out strategy by the defense, but the appellate Court sided with the plaintiff on this issue, and awarded a new trial on all pain and suffering claim. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian Gibbons with any questions.
In New York, a person injured in a motor vehicle accident cannot maintain a lawsuit for personal injuries unless the injuries are “serious” as defined by the New York State Insurance Law. Typically, the Court is lenient as to what constitutes a serious injury, assuming the plaintiff’s medical proof is sufficient to show prima facie evidence of a serious injury.
In Munoz v. Robinson, decided by the Appellate Division, First Department on March 5, 2019, the underlying Court had granted summary judgment in favor of the defendants on the plaintiff’s failure to meet the personal injury threshold. Plaintiff suffered a torn meniscus and had surgical repair following the accident. However, plaintiff had pre-existing degenerative issues with the knee confirmed by her own physicians.
Both the lower Court and the Appellate Division found that the defendants met their burden in showing that the injury which required surgical repair pre-existed the accident. However, the Appellate Division found that plaintiff raised a question of fact to overcome the defendant’s prima facie showing of entitlement to summary judgment by showing that the accident aggravated the prior injury to such a degree that surgery was necessary, wherein it would likely not have been necessary before.
This decision further shows how the high standard defendants face in obtaining summary judgment on the personal injury threshold issue in motor vehicle accident cases. Even here, if we might paraphrase Michael Corleone, the defendants thought they were out, but the First Department pulled them back in! Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.
At a time when many counties tend to blur the CPLR, it is nice to know the rule of law still applies in Westchester County. The Second Department upheld a lower court decision to strike plaintiff’s untimely expert disclosure and deny plaintiff’s cross motion to amend her pleadings in Holder v. County of Westchester. Downstate counties are increasingly permitting post-note of issue discovery, however, the Supreme Court in Westchester correctly struck plaintiff’s post-note of issue expert disclosure upon defendant’s motion.
Plaintiff was allegedly injured on December 13, 2009 while disembarking from a bus. Her original notice of claim, complaint, and bill of particulars were premised on the theory that the bus driver failed to lower the front of bus, causing plaintiff to fall when she disembarked. After the note of issue was filed, plaintiff served a supplemental response to defendants’ demand for expert disclosure wherein she added an additional theory of liability, namely, that the defendants allowed her to disembark from the bus in an area that contained ice which caused plaintiff to step on ice and fall. The plaintiff had already testified that she did not know of anything else that caused her to fall other than the height of the bus.
The defendants moved to strike plaintiff’s supplemental responses and the plaintiff cross-moved to amend her pleadings. While courts generally allow plaintiffs to freely amend their pleadings, the Appellate Division found “where, as here, leave to amend is belatedly sought, judicial discretion should be exercised sparingly.” Changing a theory of liability so late in the game is extremely prejudicial and as such, the lower court correctly granted defendant’s motion and denied plaintiff’s cross-motion.
While part rules in Kings and Queens County give plaintiffs ample opportunity to engage in post-note of issue discovery, it is refreshing to see a plaintiff appropriately held accountable for a tardy disclosure, which would have been prejudicial to the defendant. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions.
In Michaluk v New York City Health Andamp Hosps Corp., plaintiff brought a medical malpractice action relating to treatment received by the decedent plaintiff, at Bellevue Hospital Center between August 2010 and January 2011. Plaintiff subsequently moved to amend the notice of claim to include a cause of action for wrongful death. Ultimately, defendant New York City Health and Hospitals Corporation moved for an order striking the action for plaintiff’s failure to comply with prior court orders, including discovery obligations.
The lower court found that plaintiff willfully failed to comply with numerous discovery orders pertaining to discovery deadlines, including setting dates for depositions. After plaintiff was granted leave to file an amended notice of claim, plaintiff waited over a year before providing defendant with a verified Bill of Particulars. Additionally, plaintiff’s deposition wasn’t completed for over a year, and deposition of non-party witness was not completed until over seven months lapsed. Ultimately, the defendant’s motion to dismiss was granted for plaintiff’s failure to comply with the Court’s directives.
Finding the lower court improvidently exercised its discretion in dismissing the action for failure to comply with discovery, the First Department noted that “warnings in prior court orders that the deposition was not to be adjourned is not notice to plaintiffs that dismissal of the complaint may result should it not go forward.” Defendants failed to show that plaintiff’s failure to go forward with deposition of one doctor was willful, contumacious, or in bad faith and plaintiff’s excuse that attorney was in a motor-vehicle accident 2-weeks before scheduled deposition was reasonable.
The Pennsylvania Supreme Court has granted the Third Circuit’s petition for certification of a question of law that has puzzled insurers and their attorneys. The issue is whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing — without a court order — before they can receive first-party medical benefits.
Insurance companies such as Allstate have been including contractual provisions in their motor vehicle insurance policies that requires insured to submit to independent medical examinations by a physician selected by the insurer, “when and as often as the insurer may reasonably require,” as a condition precedent to the payment of benefits. The problem is that these provisions may conflict with the Motor Vehicle Financial Responsibility Law (“MVFLR”), 75 Pa.C.S. Section 1796(a), which gives courts the authority to order such examinations.
In Sayles v. Allstate, U.S. District Judge A. Richard Caputo of the Middle District ruled that Allstate’s policy provision conflicted with the state MVFLR because the plain language of Section 1796 prohibits precisely this type of provision. The plaintiff in Sayles argued that Allstate violated the MVFLR because it never petitioned the court to compel the independent medical exam. Allstate argued that the MVFRL does not mandate a court order and it only suggests when a court may order a person to submit to an IME. But there is no prohibition in the MVFLR that requires court intervention before an insurer requests medical examinations before paying 1st party benefits.
Once the Pennsylvania Supreme Court rules on this question of law, both auto insurers and insurance attorneys will know how to proceed with respect to independent medical examinations, and whether court intervention will be necessary in advance of every such examination.
American Southern Insurance Company, Inc. was victorious recently when its summary judgment decision regarding a contractual indemnification dispute was upheld on appeal. In American Southern Ins. Co. v. James A. Halbert , et al., PA Superior Court, No. 504 MDA 2018, the Pennsyvlania Superior Court upheld the trial court’s granting of summary judgment in favor of American Southern.
The underlying case involved a performance surety bond for public improvement in North Cornwall Township, PA. Back in 2006, American Southern had entered into an indemnity agreement with the Halbert family (on behalf of the Oaklea Corporation) wherein the Halberts agreed to indemnify American Southern from any claim or liability arising from the issuance of a performance bond. Subsequently, American Southern issued a performance bond in favor of North Cornwall Township to secure completion of improvements for local development by the Oaklea Corporation. In July 2016, the Township informed American Southern that Oaklea refused to respond or perform certain improvements that were demanded by the Township. The Township demanded compensation from American Southern, who in turn, demanded indemnification from the Halberts. The Halberts responded that the improvements demanded by the Township were unnecessary.
In October 2017, American Southern moved for summary judgment asserting that there were no genuine issues of material fact in dispute and that American Southern was entitled to indemnification against the Halberts, as a matter of law. In response, the Halberts cited their Answer and defense that the improvements were unnecessary and also argued that the indemnification agreement was an unconscionable contract of adhesion. The trial court concluded that Halbert failed to show that the improvements were unnecessary and that the agreement was not a contract of adhesion. The Halberts appealed.
On appeal, the Superior Court explained that the Pennsylvania rules governing summary judgment explicitly prohibit a non-moving party from merely relying on the allegations or denials of the pleadings, thus rendering the Halberts’ position deficient. The Halberts conceded that an operative provision of the indemnification agreement granted American Southern the exclusive right to determine whether claims such as the ones brought by the Township should be settled or defended; thereby nullifying Halberts’ repeated defense that the demanded improvements were not necessary. Furthermore, while the court entertained the Halberts affirmative defense that the indemnification agreement was a contract of adhesion, it concluded that the Halberts failed to cite to any evidence detailing the circumstances that would support their assertion that the contract was, in fact, a contract of adhesion.
Ultimately, the Superior Court denied the Halberts appeal and affirmed the granting of summary judgment in favor of American Southern, emphasizing the Halberts’ failure to cite evidence of record that would support their claims. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.
On January 24, 2019, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of Turkey Hill Minit Markets, the Kroger Co., and D670 Kroger C Stres/Turkey Hill/Minit Mr’s (Collectively “Appellees”) in Brock v. Turkey Hill Minit Markets. The case stems from a slip and fall, when plaintiff Rebecca Brock was walking toward the entrance of the Store when slipped and fell on ice in the parking lot. However, whether the slipping hazard was man-made or made naturally became a point of contention.
The “Hills and Ridges Doctrine” precludes liability “where the accident occurred at a time when general slippery conditions prevailed in the community as a result of recent precipitation.” However, the hills and ridges doctrine can only be applied in cases where the snow and ice complained of are the result of an entirely natural accumulation following a snowfall. Therefore, on appeal, Appellant attempted to argue that the accumulation of ice in the parking lot was due to employees of the Appellees plowing and salting the parking lot.
The defendant-appellees produced an expert report, which cited that the snow/ice was the result of natural accumulation — and this report was unopposed by the plaintiff-appellant. As such, the Court affirmed the lower court’s ruling. Still, the underlying argument in this case is a reminder that a court reading the phrase “natural accumulation” very narrowly could pose problems for defense counsel. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions.