Handling Heavy Buckets Not an Elevation Related Risk (NY)

In Ciechorski v. City of New York, the Appellate Division recently distinguished between “usual and ordinary” dangers of a construction site versus “the extraordinary elevation risks envisioned by the Labor Law Section 240(1).” The Court also addressed the distinction between defendants who actually determine the means and methods of the work versus those who merely exercise general oversight over the performance of the work.

Plaintiff claimed he suffered pain allegedly caused by repeatedly being handed heavy buckets filled with epoxy from workers at a higher level and then transporting the buckets by hand on his own level. Plaintiff claimed he was required to catch buckets in mid-air, after they were dropped by workers standing on a barge about five or six feet above the float stage where he was standing, and this took place over the course of several weeks.

In granting summary judgment in favor of the City of New York, dismissing plaintiff’s complaint, the Appellate Division determined that plaintiff’s claims were unsupported by the record, even when viewed in the light most favorable to plaintiff. The Court noted that plaintiff testified that the barge workers leaned, bent down, or kneeled, as necessary, to hand the buckets to plaintiff, allowing him to grasp each bucket before it was released. As such, the Court determined that the type of activity plaintiff described and complained about was more in line with the usual and ordinary dangers of a construction site as opposed to the extraordinary elevation risks encompassed by the Labor Law.

Furthermore, the Appellate Division affirmed the lower court’s dismissal of plaintiff’s Labor Law Section 200 claim and his common law negligence claims as against defendant Hudson Meridian Construction Group, LLC because that defendant did not determine the means and methods of the work, but rather, exercised only general oversight over the performance of the work and site safety conditions, which is insufficient to trigger liability. In contrast, the means and methods of the work were determined solely by plaintiff’s employer, a non-party to the case.

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono with any questions.

PA Court Admits BAC Result Without Corroborative Witness

In Pennsylvania, to guard against undue prejudice in civil cases, evidence of a party’s mere alcohol consumption is inadmissible absent evidence that reasonably shows intoxication. In respect of Blood Alcohol Concentration results, courts found to provide that “[BAC] alone may not be admitted for the purpose of proving intoxication,” but must be accompanied by “other evidence showing the actor’s conduct which suggests intoxication.”  The reasoning was that someone may have alcohol in their system but not be impaired.

This issue was at the forefront of Coughlin v. Massaquoi, where Thomas Coughlin, was killed while walking crossing the street when defendant Ummu Massaquoi crashed into him with her car. Defendant Massaquoi was driving in the left lane of the four-lane road and admitted that she did not see Coughlin prior to the impact. After Coughlin was transported to the hospital and pronounced dead, the autopsy and toxicological testing revealed that Coughlin had a BAC of .313%. Other than this post-mortem BAC result, there was no direct evidence presented to the jury of Coughlin’s intoxication—such as witness testimony that he appeared drunk.  Instead, an expert testified as to impact of that BAC level on an average person.

Although a jury trial found the defendant negligent, it also determined her negligence was not the factual cause of Coughlin’s death. Plaintiff appealed, alleging the court erred by admitting evidence of Coughlin’s BAC without independent, corroborative evidence of his intoxication.

The issue for Pennsylvania’s Supreme Court was whether expert testimony interpreting a BAC result constitutes “other” evidence under Pennsylvania case law, or, if independent eyewitness testimony of intoxication is required before admitting a pedestrian’s BAC. The Court modified the previous standard and held BAC evidence is admissible if the trial court determines that it reasonably establishes a pedestrian’s unfitness to cross the street. The defendant met this standard as she presented an expert who testified to the significant impact a .313% BAC would have on the average person’s coordination, judgment, and self-control—concluding Coughlin was thus unfit to cross the street.

There is no doubt that an important factor in the outcome was the near-poisonous level of alcohol in the pedestrian’s blood, and failing to admit it under such circumstances would have led to a very unfair outcome.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions.

Mode of Operation Rejected in Sandwich Shop Slip (NJ)

In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the “mode of operation” doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens).

In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival.

At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages.

Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

NY Court Finds Plaintiff Should Have Received Extra Time in NCAA Soccer Injury Case

In Calderone v National Collegiate Athletic Association, the plaintiff sued the NCAA and other parties for personal injuries allegedly sustained during a soccer game and the NCAA immediately moved to dismiss the complaint. On the return date of the NCAA’s motion, the plaintiff attempted to file a stipulation signed by the NCAA’s counsel, agreeing to adjourn the return date and extend the plaintiff’s time to submit opposition papers. But the court rejected the stipulation and marked the NCAA’s motion fully submitted without opposition. Plaintiff moved to extend his time to submit opposition papers to the NCAA’s motion — which was unopposed by the NCAA. But the court denied the plaintiff’s motion on the ground that he failed to follow the motion schedule set by the court’s rules.

On appeal, the Second Department reversed the lower court’s decision, citing to CPLR 2004 which provides, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.”

Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA’s motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA’s motion, and “the policy favoring the resolution of cases on their merits.”

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.

Court Splits on Electrical Upgrade Issue (NY)

In Daly v 9 E. 36th LLC, a New York court wrestled with the issue of whether an apartment building has a duty to update its electrical system to meet the modern electrical needs of tenants, and the question of who is responsible when electrical overuse by a tenant results in a fire.

The plaintiff in this case was a tenant in the defendant’s building, who was injured by a fire in his rent-stabilized studio apartment. The fire was described in the fire incident report as originating “in an area of electrical wiring”; the report also noted the presence of “multiple extension cords plugged in to one outlet with a power strip.”

The apartment building was built in the 1930s and the plaintiff’s apartment had three electrical outlets in the main living space, with additional ones in the hall, the bathroom, and the kitchen. No interior electrical upgrade had ever been done to the apartment, although the plaintiff made several requests to the building to install more outlets. In addition, the plaintiff had shown the superintendent that the existing receptacles were in disrepair. Plaintiff told the superintendent that he “didn’t feel comfortable with using the extension cords,” and did not use them for long periods of time because they would get hot.

From all accounts the fire was caused by the overuse of the electrical outlets in the apartment. Plaintiff argued that the building’s decision not to upgrade the electricity in his apartment, despite the apartment’s history and his requests over the years, was a breach of the duty to keep the building safe and functional for all tenants.

The building filed a motion for summary judgment in New York County Supreme Court, and the court denied the motion. On appeal, the majority of the court agreed that a jury should decide whether plaintiff’s lifestyle and electrical consumption are above and beyond the reasonable needs of any modern tenant, and whether the building had a duty that it breached to keep the apartment building, and plaintiff’s apartment, reasonably safe.

The dissenting opinion, however, was that “rather than moderating his use of power to conform to the building’s electrical capacity (or at least using different outlets for different appliances), plaintiff was entitled to have defendant upgrade the building’s wiring to accommodate his demand.” The dissent concluded that summary judgment should have been granted on the ground that plaintiff’s negligent use of extension cords to operate numerous appliances simultaneously, as opposed to any alleged defect in the apartment’s electrical wiring, was the sole cause of the fire. In its conclusion, the dissent found plaintiff’s “lifestyle and electrical consumption” must still be in accord with the building’s electrical capacity.

Based on the 3-2 decision, it will be interesting to see if this decision winds up with the Court of Appeals.  Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions.

Police Report and Settlement Check Inadmissible in Auto Case (NJ)

Police reports are often important evidence in car accident cases, and the admissibility of such a report was a key issue in a recent case in New Jersey, Almonte v. Ulloa Tineo,  The defendant was driving through an intersection with a green light when he was struck by another vehicle on his passenger side, which drove through a red light. The impact caused defendant’s car to strike two other vehicles, including plaintiff’s parked car.

At trial, plaintiff testified that she did not witness the accident. However, she sought to introduce a police report into evidence where the responding police officer attributed fault for the accident to the defendant. The police report’s narrative included information from an unidentified witness. Over defendant’s objection, the trial court admitted the police report into evidence under the business records and public records hearsay exceptions. The trial court also admitted a letter and check sent to plaintiff from defendant’s insurer, which offered the property damage policy limits because it had determined that defendant’s car was responsible for the accident. Relying only on the police report and the insurer’s settlement offer, the trial court entered a judgment in favor of plaintiff.

On appeal, the Appellate Division reversed the trial court’s judgment because the documents were inadmissible to prove defendant’s negligence. Although police reports are typically admissible under the business record and public record hearsay exceptions, the trial court failed to scrutinize the hearsay statements contained within the police  report.  Specifically, the police report narrative was not based on the police officer’s observations but came from an unidentified witness.

In addition, relying on NJRE 408, which provides that settlement offers and negotiations cannot be used to establish liability, the Appellate Division held that the insurer’s settlement offer was inadmissible. Although the settlement check could be considered for the purposes of adjusting damages, it could not be used to determine defendant’s liability.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Right to Stop Work for Emergencies Insufficient Control under Labor Law (NY)

Under the infamous New York Labor law governing construction cases, a construction manager of a work site is generally not liable unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity that brought about the injury.

That issues was at the forefront of Lamar v. Hill International, Inc.  Plaintiff was working on the 7 train subway extension project on the West side of Manhattan when he allegedly fell from the top of a 10 foot hight stack of blasting mats. Both sides moved for summary judgment, and the construction manager defendant prevailed on the grounds that plaintiff did not adequately show that the construction manager had the authority to exercise supervision and control over the work that brought about the injury so as to enable them to avoid or correct an unsafe condition.

Specifically, as discussed in the appeal, the construction management services contract provided that these defendants were responsible for acting as liason with contractors to ensure that the project was completed in accordance with cost, time, safety, and quality control requirements and reporting to the MTA. The contract did not, however, confer upon these defendants the authority to control the methods used by the contractors, including the plaintiff’s employer, to complete their work. The construction manager defendants were authorized only to review and monitor safety programs and requirements and make recommendations, to provide direction to contractors regarding corrective action to be taken if an unsafe condition was detected, and to stop work only in the event of an emergency.

The deposition testimony confirmed that the construction managers did not have control or a supervisory role over the plaintiff’s day-to-day work and that they did not assume responsibility for the manner in which that work was conducted. As such, the Appellate Division agreed that the trial court properly awarded the defendants summary judgment dismissing plaintiff’s complaint.

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information.

Police Defamation Case Properly Venued in Philadelphia

In Reed v. Brown, the plaintiff, the Deputy Chief of Police, resigned from the Colwyn Borough (PA) police department during an open meeting before borough council and  later applied for a job with the City of Philadelphia. The plaintiff was offered a job, provided that he pass a background check. So when the City of Philadelphia was told by the Colwyn borough police manager that the plaintiff was fired for misconduct, the City of Philadelphia rescinded the job offer.

The plaintiff sued the borough and police manager for defamation in Philadelphia County, and the defendants moved for transfer of venue. The Court of Common Pleas transferred the case to Delaware County, finding that the cause of action occurred in Delaware County (where the police manger was when he made the alleged defamatory statement), and the plaintiff appealed.

On appeal, the plaintiff argued that venue was proper in Philadelphia because the trial court failed to give proper weight to his choice of forum and that the cause of action occurred in Philadelphia. Defendants, on the other hand, argued that the allegedly defamatory statements were made in a phone call that did not occur in Philadelphia and that the statements were not “published” in Philadelphia.

In considering these arguments, the Superior Court noted that the plaintiff’s claim was based on statements made by the borough police manager in response to the background check company hired by the City of Philadelphia, and those statements were ultimately communicated to the City of Philadelphia’s representatives and employees. The Court found that the plaintiff’s allegations sufficiently alleged that publication of the statements occurred in Philadelphia and that republication by the background check company was authorized, intended or reasonably expected. Thus, as the republication occurred in Philadelphia, venue was proper where the republication occurred, in Philadelphia, was proper.

Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information.

Lakers Toss Airball in Text Message Coverage Case

It is pretty much a given that anywhere you go, everyone is always on their phones. At sports stadiums, teams encourage fan interaction with fan social media posts.  Stores send text message alerts of special promotions, and doctors’ offices and salons now confirm appointments by text.  But all of these new uses for phone communication carry potential implications for insurers and their insureds under the Telephone Consumer Protection Act (TCPA) which is meant to prevent unsolicited telephone communication with consumers. In fact, many insurance policies now carry specific TCPA exclusion endorsements or exclusions otherwise relating to privacy invasion.

The 9th Circuit recently had to grapple with determining whether an invasion-of privacy exclusion applied to exclude coverage for TCPA claims in the case of L.A. Lakers v. Federal Ins. Co.  In November 2012, Lakers fan David Emanuel sued the Lakers, alleging that he used his phone to put a personal message on the scoreboard during a game at Staples Center, but subsequently began receiving texts from an autodialer. Emanuel’s case was dismissed with prejudice on the grounds that he implicitly consented to receiving a confirmation text from the Lakers when he submitted his original message. The Lakers then settled with Emanuel after he appealed to the Ninth Circuit.

The Lakers then sued its insurer, Federal, for refusing in bad faith to defend or indemnify the Lakers in the Emanuel litigation.  The insurer moved to dismiss, arguing that the policy’s invasion-of-privacy exclusion precluded coverage because a TCPA violation allegation is, in effect, a claim for a privacy breach. The trial court agreed with the insurer and dismissed the Laker’s complaint, holding that TCPA claims fall within the directors-and-officers policy’s invasion-of-privacy exclusion, and that the team was therefore not entitled to coverage.

The Lakers appealed to the 9th Circuit, and a 2-1 circuit panel upheld the trial court judge’s decision for Federal, finding that because a TCPA claim is “inherently an invasion of privacy claim,” the lower court properly concluded that the underlying suit against the Lakers was excluded from coverage. Thus, the Court held, the insurer did not breach the policy, or the implied covenant of good faith and fair dealing, in declining to defend against or cover the underlying lawsuit.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.


Security Guard’s Injury Action Docked By Older Safety Standards (NY)

In Schmidt v. One New York Plaza Co. LLC, the Appellate Division, First Department reaffirmed that in order to find a building owner liable for violations of building safety standards, a plaintiff must show violation of specific standards in existence at the time the building was built — and not at the time of the loss.

Plaintiff was assigned as a security guard at New York Plaza with his bomb-sniffing dog on the day of his accident. He was charged with inspecting trucks as they sought entry to the loading dock at the premises. Plaintiff was walking down the service ramp with his dog when a delivery person was ascending the ramp. Plaintiff took a step that came down on the outer edge of the ramp, causing him to lose his balance and fall backward off the ramp.

In support of its motion for summary judgment, defendant building owner submitted an expert architect’s report which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard. More specifically, defendant’s expert opined that neither the Building Code nor OSHA contained sections specifically applicable to the instant facts. In opposition, plaintiff stated that its expert would testify that the ramp was defective and in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and was in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendant’s motion on the grounds that its expert, while addressing the New York City Building Code and Occupational Safety and Health Administration (OSHA) regulations, failed to address other types of industry-wide standards that might be applicable. However, the Appellate Division, First Department reversed, holding that plaintiff failed to raise a triable issue of fact to defeat summary judgment as to a violation of any industry-wide standard at the time of construction. Plaintiff’s expert failed to “offer concrete proof of the existence of the relied upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted in the relevant industry at the relevant time.”

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information.