Charitable Immunity Blocks Personal Injury Claim (NJ)

While attending a country music star concert at Monmouth University, plaintiff brought suit after she allegedly fell on unsafe stairs at the university’s Multipurpose Activity Center. Monmouth University had rented out the activity center to another company for the purposes of holding this concert. Plaintiff alleged that she was a business invitee and that the university breached its duty of care. The trial court granted summary judgment in favor of the university, citing the Charitable Immunity Act.

The Charitable Immunity Act protects nonprofit organizations that are organized exclusively for religious, charitable or educational purposes from damages to any person where such person is a beneficiary to the works of such nonprofit corporation.  An entity qualifies for charitable immunity when the following three requirements are met: (1) it was formed for nonprofit purposes; (2) it was organized exclusively for religious charitable or educational purposes; and (3) it was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.

Plaintiff conceded that the university satisfies the first two prongs of the charitable immunities standard. However, she argued that the country star concert was not an “educational” event. The courts rejected this argument, finding that the country music star’s concert was titled “Joy of Christmas” which was likely to include Christmas music. Whether classical, country or Christmas, music is an art and the court found that the concert was “a cultural and educational experience for patrons of this form of artistic production.”  The university would have been immune if it presented such a concert itself, and the court found that it was no less immune just because it rented out its facilities to the outside entities who presented the concert.

Notably, even an organization “organized exclusively” for “charitable” purposes may be immune when it rents its facilities to for-profit entities. The courts have historically found that non-profit organizations that rent its facilities to the general public for activities such as piano recitals, dance classes and concerts serves important social and recreational needs of the community. As such, the trial courts grant of summary judgment in favor of the university was affirmed by the appellate court.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Court Refuses to Apply “Helicopter Educator” Standard (NY)

In recent years, the term “helicopter parent” has entered our lexicon to describe parents who provide too much close attention to their children at every waking moment.  A recent decision from the Second Department refused to enshrine the concept of “helicopter educator” into law.

In LR v. City of New York, the parent of a four year filed a derivative action against the City of New York and the Department of Education for injuries sustained after the four year-old tripped on the foot of a chair while returning her food tray to a trash bin.  The plaintiff argued the activity was not an age-appropriate task, but the court disagreed.

While the court acknowledged that schools owed a duty to adequately supervise their students, they are not required to “continuously supervise and control all movements and activities of students.”  That, coupled with the fact that the students had performed that simple task every single day led the court to grant the City’s motion for summary judgment.

While the court refused to apply a helicopter educator standard to school districts, educational facilities should not read the decision as a license to be lax in supervising children.  The duty to supervise still applies.       Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

Unlimited WC Coverage Prevents Excess Coverage from Being Triggered (NY)

In Vincent & Sons Construction v. Century Surety Insurance, et al, the Second Department recently discussed the unlimited workers compensation coverage interacts with excess policies.

This declaratory judgment action was brought by Arthur Vincent & Sons Construction  seeking defense and indemnification from defendants Century Surety Insurance Company and Admiral Insurance Company in an underlying action wrongful death action, which arose during a project in which Fordham University hired Vincent Construction to install a new roof on one of its research buildings. As part of their contract, Vincent Construction agreed to indemnify Fordham against any claims arising out of Vincent Construction’s negligence and to carry comprehensive commercial general liability insurance naming Fordham as an additional insured.

During the course of the project, one of Vincent Construction’s employees had a fatal accident, and his estate commenced a wrongful death action against Fordham. In turn, Fordham commenced a third-party action against Vincent Construction seeking contribution, common-law indemnification, and contractual indemnification. At the time of the accident, Vincent Construction was covered by three policies: (1) a worker’s compensation and employer’s liability policy issued by Commerce and Industry Insurance Company (“Commerce”) that covered common-law indemnification claims and excluded coverage for contractual indemnification claims, (2) a CGL policy issued by Century that covered contractual indemnification claims, and (3) an excess policy issued by Admiral that also covered contractual indemnification claims.

After learning of the accident, only Commerce acknowledged coverage and provided Vincent Construction with defense, so Vincent Construction commenced this action to obtain a judgment declaring that Admiral was obligated to defend and indemnify it, and to defend and indemnify Fordham as an additional insured in the underlying wrongful death action.

Admiral moved for summary judgment, arguing that it was not obligated to defend or indemnify Vincent Construction because Vincent Construction’s primary coverage under the Commerce policy was unlimited, so excess coverage could never be triggered. Vincent Construction argued that because the Commerce policy excluded claims for contractual indemnification, the Admiral policy provided it with excess coverage for those claims. The Supreme Court agreed with Vincent Construction, and declared that Admiral must indemnify Vincent Construction in the underlying action with excess, noncontributory coverage. Admiral appealed.

On appeal, the Second Department noted that the Admiral excess policy stated that it provided coverage in the amount of the “ultimate net loss” in excess of the “underlying insurance limit.” The policy defined “underlying insurance limit” as the sum of the amounts of “other insurance” and “underlying insurance.” At issue for the Second Department was the meaning of “underlying insurance,” which the Admiral policy defined as “coverage(s) afforded under insurance policies, for the limits shown, as designated in the schedule of underlying insurance.”  The schedule of “underlying insurance” listed Century’s CGL policy, but it did not list Commerce Workers’ Compensation policy. Despite this, the court explained that the coverage afforded under the Commerce policy was included in the “underlying insurance limit,” because it was considered “other insurance.”

Here, the Commerce policy contained a New York Limit of Liability Endorsement providing Vincent Construction with unlimited coverage in cases where bodily injury to an employee arises in the course of employment. Because there was no question that the facts of the wrongful death action fell within the meaning of the endorsement, Admiral was correct that Vincent Construction’s primary policy provided unlimited coverage. Accordingly, the Second Department reversed the trial court, and held that by its “clear and unambiguous terms” the Admiral excess policy was not could be triggered for the wrongful death suit, regardless of the exclusion for contractual claims.   Admiral’s policy language governed, and the WC carrier is responsible for the entire underlying judgment, whatever that may be.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

No Appellate Review on Non-Final Order (PA)

The Superior Court of Pennsylvania recently quashed the appeal of the plaintiff in a Mechanics’ Lien dispute.  In SCE Environmental Group, Inc. v. Spatt, No. 283 MDA 2017 (Jan. 4, 2018), the plaintiff filed a Mechanics’ Lien of $371,424.79 against the defendants after a fire occurred at a property located in Jessup, Pennsylvania.  Plaintiff asserted that a master services agreement contracted for them to perform emergency response work to stabilize the property, as well as other tasks including disposal and removal of a tank on the property.  After allegedly completing the work, plaintiff sent defendants an invoice for $371,424.79.

Plaintiff contends that the defendants did not pay for any of the work performed and that plaintiff qualified as a contractor under the Mechanics’ Lien Law.  Accordingly, plaintiff submitted a mechanics’ lien in the same amount, asserting that, at the time the claim was filed, the defendants were the owners of the property to which the mechanics’ lien attached.  Defendants filed preliminary objections to strike plaintiff’s pleading for lack of specificity and on the basis of an agreement for alternative dispute resolution contained in the agreement.  After an oral argument, the trial court sustained defendants’ preliminary objections and dismissed the plaintiff’s complaint without prejudice for failure to meet the requirements of the Mechanics’ Lien Law.  Plaintiff then filed a notice of appeal from the order sustaining defendants’ preliminary objections.

In reaching its decision to quash the appeal, the Superior Court explained the general rule that only appeals from final orders (i.e. an order that disposes of all claims and of all parties) are subject to appellate review.  The court further explained that, by virtue of dismissing plaintiff’s complaint without prejudice (as opposed to with prejudice), plaintiff was implicitly granted an opportunity to amend the complaint.  However, plaintiff did not file an amended complaint.  Furthermore, the issue at hand did not qualify for interlocutory review because it did not fall under any of the appropriate categories outlined in the Pennsylvania Rules of Appellate Procedure.  Ultimately, the court concluded that it did not have jurisdiction over plaintiff’s appeal because there was no final order nor an appropriate interlocutory issue; therefore the appeal was quashed.

Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Overly Voluminous Pleadings Result in Dismissal (PA)

On January 4, 2018, the Superior Court of Pennsylvania affirmed preliminary objections which dismissed a pro se plaintiff’s fourth amended complaint after it found he had waived all the issues therein.

On February 23, 2015, the underlying trial court sustained preliminary objections against pro se plaintiff Andreas Schilit’s (“Schilit”) third amended complaint since it was not in a concise and summary form.  Schilit’s third amended complaint contained over 800 paragraphs, mixed causes of action, and cross-referencing counts.  In response, Schilit filed a fourth amended complaint which attempted to remove some of the paragraphs in compliance with the court’s order, but he instead reinserted them in an attached affidavit to the fourth complaint.

More preliminary objections followed to which Schilit filed a fifth amended complaint which was even longer than its predecessors.  The numerous defendants all filed motions to strike claiming that Schilit’s filing was in bad faith and merely an attempt to hurry and harass them.  The court then granted their motions to strike and granted their preliminary objections to the fourth complaint.

On appeal, Schilit file a Rule 1925(b) statement which was twelve pages and 136 numbered paragraphs; in direct contrast to the rule’s requirement for a “concise” statement of appeal.  The Superior Court stated that if a court has to guess on what issues an appellant is raising, then it is not enough for meaningful review.  In addition, the court found Schilit’s brief to be disorganized and rambling and decided that he had waived all issues on appeal.  This case demonstrates the idiosyncrasies of dealing with pro se plaintiffs, forcing defendants to address baseless, but timeconsuming pleadings and evidentiary issues.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Dance Like No One is Watching, Email Like it will be Read Aloud in Court (NY)

Technological advances often create issues previously undecided by the Courts.  The use of email to contact clients, adversaries and the Court has become increasingly popular, but also comes with a host of discovery and confidentiality issues.

Recently, in Siras Partners v. Activity Kuafu, (1st Dept. 2018), the First Department heard a case regarding the waiver of attorney-client privilege due to the content of emails sent to third-parties that were produced in discovery. The Court found that by emailing a third party about the advice of his attorney, the defendant waived attorney-client privilege not only as to that email, but as to any and all documents related to the content of the email.

While the email was sent before the commencement of the lawsuit itself, the simple fact that advice from the defendant’s attorney regarding the substance of the lawsuit was within the email was sufficient to be a waiver of attorney-client privilege.

The crux of this issue is the content of communication as well as the recipient of that information. The recipient of the email in the Siras case was a business partner and friend of the individually named defendant, which may have been why the defendant was so quick to email communication with his private counsel.

Nevertheless, this decision shows that now, more than ever, it is imperative that attorneys are diligent in monitoring their communication via email and are diligent in warning their clients about the potential pitfalls of sharing confidential and protected information even with their closest family and friends.  And frankly, the title of this post also pertains to emails and texts unrelated to litigation.

Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Issue of Fact Precludes Assumption of Risk Summary Judgment Argument (NY)

In the matter of Lee v Brooklyn Boulders, LLC (2017 NY Slip Op 08660), the Second Department Appellate Division confronted, and further diminished, the applicability of the primary assumption of risk doctrine.

Plaintiff was allegedly injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats, which according to plaintiff, was covered by a piece of Velcro. Defendants moved for summary judgment dismissing the complaint and the plaintiff cross-moved to add a demand for punitive damages.  Defendants argument that plaintiff signed a liability release The Supreme Court, denied the motion and the cross motion and all parties appealed.

The Appellate Division found that contrary to the defendant’s contention, the release that the plaintiff signed was void under the General Obligations law because the defendant’s facility was recreational in nature and therefore did not bar the plaintiff’s claims.  The Court noted that by engaging in a sport or recreational activity, a participant consent to those commonly appreciated risk that are “inherent in” and “arise out of the nature of the sport generally and flow from such participation.”  Here however, the defendant failed to establish, prima facie, the doctrine of primary assumption of risk applied.  The plaintiff’s deposition testimony revealed triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the inured plaintiff accident involved an inherent risk of rock climbing.  Therefore, defendant’s motion was properly denied.  The Court also found that the Supreme Court providently exercised its discretion in denying the cross motion for leave to amend the complaint to add punitive damages.

This case illustrates that to the extent a party seeks to apply assumption of risk proactively in dispositive motions, the court will stridently parse the record for triable issues of fact.  While assumption of risk continues to endure in a comparative setting, its applicability on a primary basis is becoming fewer and further in-between.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Ten Years After — Court Dismisses Complaint after LONG period of inactivity (PA)

I may be dating my musical tastes with this post, but the 1970’s rock band, Ten Years After, once had a hit single, called “I’d Love to Change the World.”   Well, if a plaintiff is looking to change the world for his client, he better not let his claim sit still for 10 years… which is what happened in Erie County, Pennsylvania, the Superior Court of Pennsylvania.

In July 2007, Golab v Knuth was commenced after Golab was injured in a May 2005 automobile accident.  The parties exchanged pleadings and discovery and the case was scheduled for trial in October 2009.  However, the case was never certified and therefore never proceeded to trial, prompting the trial court to publish a Termination Notice in October 2015.

The Termination Notice was published in the Erie County Legal Journal and informed the parties that the case would be terminated due to lack of docket activity, pursuant to Pa.R.J.A. 1901, unless the parties appeared at a November 30, 2015 hearing and showed good cause as to why the case should not be terminated. There was no Erie County Local Rule in effect at the time to govern implementation of Pa.R.J.A. 1901.

Neither party nor their respective counsel appeared at the November hearing, and thus the trial court terminated the case in December 2015.  In November 2016, Golab filed a motion to reinstate the case citing various health issues to both she and her attorney, as well as arguing that neither she nor her attorney ever received notice of the Termination Notice.  The court reinstated the case on November 30, 2016, over an objection by Knuth.  Knuth subsequently filed a motion for reconsideration to reinstate the Termination Order in December 2016.  In March 2017, the trial court granted Knuth’s motion and reinstated the Termination Order, terminating the case.

Golab then moved to reinstate the case, which the trial court denied.  Golab appealed the court’s denial of her motion to reinstate, arguing that: 1) the trial court erred in dismissing the case in December 2015 without first enacting a Local Rule to implement Pa.R.J.A. 1901; 2) the one-time publication in the Erie County Legal Journal did not constitute adequate notice of the Termination Notice; and 3) the trial court erred in failing to make findings of fact as to the whether good cause for the lack of activity was shown.

The Superior Court of Pennsylvania affirmed the trial court’s order, because a plaintiff has an affirmative duty to prosecute her action within a reasonable time and it is the plaintiff, not the defendant, who bears the risk of not acting within a reasonable time to move a case along.  In response to the three issues brought by Golab in her appeal, the Superior Court explained that the lack of a local rule implementing Pa.R.J.A. 1901 did not render the trial court powerless to proceed under said rule, and that the publication of the Termination Notice was sufficient under Rule 1901.  Additionally, the trial court was not required to conduct an evidentiary hearing concerning the reasons for Golab’s delay, particularly when the docket was inactive for nearly seven (7) years.  This prolonged back-and-forth saga is a helpful reminder for clients and attorneys both to remain cognizant and vigilant to ensure that their cases are actually brought to a resolution.

The chorus of the Ten Years After song, which you may have heard, goes, “I’d love to change the world… but I don’t know what to do.”   For purposes of this case, you need to at least do something to avoid a dismissal.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Lengthy, “Deliberate” Deliberations Are Not Cause for a Mistrial (PA)

On December 8, 2017, the Superior Court of Pennsylvania affirmed a defense verdict on appeal in Berry v. Dickson et al. Plaintiff Berry sued several defendants, alleging negligent maintenance of a building after a piece of ceiling collapsed and injured Berry.  The jury ultimately returned a verdict for the defendants and Berry appealed on the issue that the jurors were deadlocked and that the trial court erred by instructing them to return to deliberations.

After an exhaustive three days of deliberations, the trial judge dismissed the jury and told them to return on Monday after the weekend.  He instructed them that if they were unable to return a verdict on Monday due to being “hopelessly deadlocked” that he would then declare a mistrial.  On Monday morning, the jurors requested to hear the charges re-read and then returned a defense verdict late in the afternoon.  The plaintiff appealed, arguing that the trial judge effectively coerced the jury after instructing them to resume deliberations after they indicated twice before that they were unable to reach a verdict.

The amount of time that a jury is kept together is a matter of discretion for the trial judge and will only be reversed for abuse of discretion or if there is evidence that the judge coerced the jury.  Issues to look at are the charges, the complexity of the issues, the amount of testimony, the length of trial, and the solemnity of the trial.

In the instant case, the Superior Court found that the issues were complex in that the plaintiff alleged injuries to his spine and other parts of his body.  In addition, the jury had to consider testimony from three fact witnesses and two experts.  The court also noted that the jury mentioned that they were deadlocked but not “hopelessly deadlocked”.  As such, the court affirmed the defense verdict.

This case demonstrates the importance of handling a jury during trial and to provide them with adequate jury instructions, and allowing them to deliberate appropriately.  The alternative to this verdict would have been a mistrial, and likely, a retrial within a few months.   While the plaintiff was obviously displeased with the result, lengthy deliberation is a function of the justice system, and not a grounds for reversal.  In fact, the word “deliberation” is a derivative of the word, “deliberate,” which means measured or cautious. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.


Second Department Reiterates Defendants’ High Burden in Negligent Supervision Case (NY)

In K.J. v. NYC BOE., the Second Department recently discussed the high threshold required to prevail on a motion for summary judgment in a negligent supervision case.

The case arose from an incident in December of 2014, when the 14 year old plaintiff was allegedly assaulted by four fellow students in a stairwell leading to the cafeteria of Lincoln High School in Brooklyn. The plaintiff sustained various injuries, including a fractured orbital bone. Plaintiff’s father, Lonnie Jefferson, brought suit on behalf of his son, and individually, against the City of New York, the Board of Education, and the New York City Department of Education (DOE), alleging negligent supervision. The defendants moved for summary judgment, basing their motion, in part, on the plaintiffs’ 50-H hearing testimony and the deposition testimony of a school safety officer. The infant plaintiff testified that while he was in the cafeteria, one of the assailants threw an object at him. When the plaintiff went over to the assailants’ lunch table, he was challenged to a fight. The plaintiff refused to fight and returned to his lunch table without reporting the incident to any teachers. At the end of lunch, the plaintiff left the cafeteria doors and walked into the stairwell to go to his next class. The four assailants cornered the plaintiff punched and kicked him for approximately 25 seconds. Afterwards, the plaintiff found a dean who took him to the nurse’s office. There were no school safety officers, school personnel, or security cameras in the stairwell at the time of the incident.

At his deposition, the school’s safety officer testified that his duties did not include supervising the cafeteria during lunch, which was done by the deans. As a general matter, during the break between class periods, teachers stood in the hallway while the school safety officers patrolled the hallways to make sure the students were headed to class. The officer did not witness the assault, but was radioed by the dean to help to the plaintiff. He also did not know the number or identities of the students who attacked the plaintiff, although he recalled seeing at least one of the assailants in the principal’s office on a prior occasion. The officer testified that he had a supervisor who was in charge of school safety personnel in the building, but the defendants provided no evidence from that supervisor or anyone familiar with the students involved in the assault.

The Supreme Court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint, and the plaintiffs appealed. On appeal, the Second Department recited the rule that “schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” To determine whether school officials breached their duty to supervise, the first question is whether they had “sufficiently specific knowledge or notice” of the dangerous conduct. Broadly, this requires that the school have actual or constructive notice of prior similar incidents, and injuries that result from the unanticipated or impulsive actions of a student will not result in a finding of negligence.

The Second Department found that defendants failed to provide evidence showing that they lacked notice the assailant’s prior violent behavior. Further, the safety officer’s testimony regarding the disciplinary history of one of the assailants created triable issues of fact as to whether the defendants had specific knowledge of any dangerous propensities. Lastly, they failed demonstrate the general security measures at the school, including the number of school safety officers on duty, their assignments in the vicinity of the cafeteria and stairwell, or the frequency of violent incidents.

Not only did defendants fail to demonstrate their lack of notice, they also failed to eliminate all triable issues to fact as to the second critical point: whether the alleged inadequate security proximately caused the incident. To determine causation, the court must determine whether “the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence.” Here, the defendants failed to show that the incident occurred in such a short time span that even the most intense supervision could have prevented it.

Accordingly, the Second Department held that defendants failed to establish their prima facie entitlement to summary judgment as a matter of law. Interestingly, the Court noted that the trial court should have been able to reach this conclusion regardless of plaintiff’s opposition papers. Likely, this is a result of defendants’ failure to offer testimony or a sworn affidavit from anyone with knowledge of the incident, the assailant’s past behaviors, or the school’s general security policies.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.