Buddy System Defense Prevails in Camping Trip Lawsuit (NY)

In Gomes v. Boy Scouts of America, a 13-year-old plaintiff sustained head injuries while participating in a camping trip at a facility owned and operated by defendants. He alleged that he stumbled and fell at night in the unlit, uneven area outside of the camp’s shower house. Plaintiff was wearing a working head lamp but could not say what caused his fall. Other witnesses alleged that plaintiff fell after engaging in horseplay in the shower house and fell as he was running away.

In evaluating the summary judgment motion, the defendants met their burden to show that the negligent supervision claim should be dismissed as a matter of law. In response, plaintiff’s attempts to raise a triable issue pursuant to New York Court Codes, Rules and Regulations, Section 7-2.5 (Personnel, Supervision and Camp Safety Plan) under the guise of lack of visual or verbal communication capability at the shower house were unsuccessful because plaintiff failed to show that his injuries were both foreseeable and proximately caused by the absence of adequate supervision.

The court found plaintiff’s expert’s statement that the incident was foreseeable merely because the boys were “totally unsupervised and unregulated for a lengthy period of time in a potentially dangerous/hazardous environment” was conclusory and unfounded. Rather, the court found that plaintiff was accompanied by fellow scouts as part of the “buddy system”, which had a proven record of success without adult supervision. None of the scouts had a history of misbehavior, disciplinary issues, or disobedience. Accordingly, defendants were not on notice that an accident was likely to result under the circumstances.

Defendants also met their burden that any allegedly inadequate supervision was not the proximate cause of plaintiff’s injuries, “given the impulsive nature of plaintiff’s own acts” and the short time span between those acts and his injuries. In response, plaintiff failed to raise a triable issue as to whether the accident would have been avoided even with heightened security.  As such, the decision was affirmed on appeal.

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

NY Court Applies Holocaust Statute in Art Dispute

There have been many cases regarding disputes over property taken from Jewish art owners by the Nazi regime during World War II. These cases have all centered on whether the transfer of the property was valid, and many cases involve highly valuable works of art. Some of these cases end up dismissed due to statute of limitations issues.

In Reif v. Nagy, a New York County Supreme Court was faced with such a dispute. The case involved competing claims of ownership of two works by the celebrated Austrian artist Egon Schiele.

After more than two years of litigation, both parties sought summary judgment. In a 17 page decision, Judge Ramos determined that the two paintings at issue, “Woman in Black Pinafore” (1911) and “Woman Hiding Her Face” (1912), rightfully belonged to the plaintiffs, heirs of Fritz Grunbaum,

The Court found that the plaintiffs established a prima facie case that the paintings were the property of Grunbaum, and that the entirety of his property was looted by the Nazis during World War II, and that the defendants failed to establish a superior claim to the Artworks, or to at least raise a triable issue of fact.

The defendants failed to come forward with evidence or a triable issue of fact to show that Grunbaum voluntarily transferred the subject artworks during his lifetime. The Court noted that the Nazis confiscated Grunbaum’s artworks by forcing him to sign a power of attorney to his wife, who was herself later murdered by the Nazis.  As such, the act was involuntary, and the Court determined that “a signature at gunpoint cannot lead to a valid conveyance.”

Judge Ramos applied the Holocaust Expropriated Art Recovery Act. The Act, adopted unanimously by Congress in 2016, expanded the statute of limitations for heirs of Holocaust victims seeking to recover their family’s stolen artwork. The primary purpose of the statute was to encourage more judicial decisions on the merits, rather than on time-based parameters, especially in light of the fact that Nazi-looted art pieces can be especially difficult to find and trace back.

There have also been interesting developments following the entry of the order awarding custody of the paintings to the plaintiffs. The plaintiffs sought to have the artwork transferred from the custodian appointed during the pendency of the lawsuit to Christie’s auction house, seemingly in order to place the paintings for auction. The defendants have opposed this request, and asked the court to deny the request and keep the paintings with the custodian while they pursue an appeal of the underlying order. We will continue monitoring this interesting case on Of Interest.

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

Landlord Responsible for Burn from Uncovered Radiator (NJ)

In J.H. v. R&M Tagliareni, LLC, the New Jersey Appellate Division analyzed whether a landlord owned a duty to protect a minor from a hot and uncovered radiator where it was part of the building’s entire heating system.

Plaintiff is a minor who sustained third-degree burns on his head, right cheek, and left arm while sleeping next to an uncovered radiator in defendant’s apartment building. The radiator was controlled by an on and off shut-off valve at its base inside the apartment unit. The heat flowing into the radiator could only be manually turned on or off at the shut-off valve and the unit did not possess a thermostat to regulate the amount of heat emitting from radiator. An investigation of the radiator revealed that it became unbearable to touch within two minutes of turning the shut-off valve to the on position. Plaintiff’s mother, on behalf of her minor son, subsequently filed suit against the landlord contending that the landlord was in control of the apartment’s heating system and failed to protect her son.

At the conclusion of discovery, the landlord moved for summary judgment arguing that it did not have notice of the allegedly dangerous condition. The trial court granted defendant’s motion holding that the landlord had no constructive or actual notice of the uncovered radiator and therefore violated no duty to plaintiff. In granting defendant’s motion, the trial court found that the tenants had exclusive control over the radiator’s shut-off valve. The trial court also reasoned that the landlord had not received any complaints of excessively hot radiators, was not aware that a young child was living in plaintiff’s unit, and did not violate any applicable codes.

On appeal, the Appellate Division reversed the trial court’s decision and held that the landlord owed a duty of care under a regulation requiring a building’s heating systems (i.e. the radiator) to be covered. The Appellate Division found that the shut-off valve was not sufficient to give the tenants control over the unit’s heating system because there was no control in actual temperature. The Appellate Division found the shut-off valve especially impractical when the tenants were sleeping. The Appellate Division also found that a simple radiator cover would have been enough to protect plaintiff from the burns that he sustained and that the landlord had notice of the dangerous condition because it delivered the unit to the tenants for rent.

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

Supplemental or Amended Bill of Particulars? (NY)

In Kirk v. Nahon, the Appellate Division rebuked a recurring discovery procedure used by plaintiffs attorneys to add additional injuries during the course of personal injury litigation by serving additional Bills of Particulars.

The plaintiff in Kirk filed a lawsuit in Nassau County Supreme Court for personal injuries allegedly sustained after his vehicle was hit in the rear by the defendants’ vehicle. The initial Bill of Particulars and Supplemental Bill of Particulars alleged various injuries to the plaintiff’s back, neck, and knee. The plaintiff later served what he labeled a “second supplemental bill of particulars,” which alleged “consequential stroke,” and thereafter, a “third supplemental bill of particulars,” which amplified the allegations as to the stroke.

However, at his deposition, the plaintiff testified that there was no causal connection between the stroke he suffered and the accident. As such, the defendants filed a motion to strike the second and third Supplemental Bills of Particulars. The Supreme Court granted the motion, and the plaintiff appealed.

The Appellate Division decision ruled that the plaintiff’s labeling of Bills of Particulars as “supplemental” does not control the reality of the pleadings. The “supplemental” Bills of Particulars were in fact amended Bills of Particulars, as they sought to add new injuries. Citing CPLR Section 3403 and case law, the Appellate Division held that leave to amend a Bill of Particulars is ordinarily to be freely given in the absence of prejudice or surprise, but in Kirk “the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries.”

As such, the Appellate Division found that the Supreme Court properly granted the defendants’ motion to strike the second and third supplemental bills of particulars.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

PA Court Reverses $21 Million Bad Faith Judgment Against Auto Insurer

In Berg v. Nationwide Mutual Insurance Company, plaintiff sought coverage from Nationwide for repairs to their vehicle after an auto accident. Ultimately, the plaintiffs ended up suing Nationwide for bad faith, due to Nationwide’s decision to repair the plaintiffs’ vehicle rather than declaring it a total loss.  Nationwide initially received an estimate that the vehicle should be totaled, but rejected it, repaired the vehicle, and returned what it allegedly knew was a dangerous vehicle back to its insured.

Plaintiffs asserted claims for negligence, fraud, conspiracy and insurance bad faith. After a trial, the jury found in favor of Nationwide on all counts except for the catchall provision of the Unfair Trade Practices and Consumer Protection Law, or UTPCPL. The jury awarded the plaintiffs $295.00.

But in the second phase, the trial court found that Nationwide acted in bad faith by repairing the plaintiffs’ vehicle rather than declaring it a total loss and ordered Nationwide to pay $18 million in punitive damages and $3 million in attorneys fees.

On appeal, the Superior Court noted that a finding of bad faith will be reversed where the trial court’s critical findings are either unsupported by the record or do not rise to the level of bad faith. In this case, the Superior Court reversed the trial court’s finding of bath faith, finding that the evidence of record did not support the trial court’s finding that Nationwide overrode or vetoed a total loss appraisal. Upon review of the record, the Superior Court found that the record indicated that Nationwide and the entity handling repairs had support to determine that plaintiffs’ vehicle was repairable. In support of its reversal, the Superior Court noted that the record did not support a finding that Nationwide had actual knowledge of or recklessly disregarded any knowledge of the vehicle’s allegedly faulty condition when the repairing entity returned it to plaintiffs.

In addition, the Superior Court admonished the trial court for incorporating an irrelevant critique of the insurance industry in its holding, stating that a judge sitting as fact finder should confine his or her analysis to the facts of the case at bar without consideration of the perceived ills of the insurance industry in general.

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

Court Rejects Summary Judgment in Hockey Puck Suit (NY)

In Smero v. City of Saratoga Springs, et. al., plaintiffs’ 10–year old daughter sustained injuries to her head when she was struck by an errant hockey puck that left the ice while she was watching a youth hockey practice at Vernon Rink in Saratoga County.

In their complaint, plaintiffs alleged that defendants failed to install proper safety netting or barriers in the area where the child was injured. After the death of a fan at a hockey game in 2002, the NHL required that all hockey arenas erect safety netting around the glass at both ends of the rink. The defendant moved for summary judgment on the assumption of risk doctrine, but the Supreme Court denied defendants’ motions for summary judgment.

The Appellate Division, Third Department affirmed the lower court decision and determined that the assumption of risk doctrine did not apply to these facts. Under the assumption of risk doctrine, consenting “[s]pectators and bystanders … assume risks associated with a sporting event or activity, even at times when they are not actively watching the event.” However, the Appellate Division held “notwithstanding a spectator’s assumption of risk, an owner or occupier of land remains under a duty to exercise reasonable care under the circumstances to prevent injury to those who are present.” In the context of hockey rinks, “the owner’s duty owed to spectators is discharged by providing screening around the area behind the hockey goals, where the danger of being struck by a puck is the greatest, as long as the screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire to view the game from behind such screening.”

The Appellate Division noted that at the time of the incident, two separate hockey practices were ongoing, and, to accommodate this, the hockey goals were set up in a cross-rink fashion to allow both practices to use the hockey rink at the same time. Thus, the goals were repositioned across the width of the ice rink instead of at the ends of the rink where they are normally situated. Plaintiff’s expert engineer opined that placement of the hockey goals in a cross-ice fashion on the sides of the rink and “directly in front of an area of the rink with a significant gap in the protective screening [ ] created the significant likelihood that a puck traveling at high velocity would leave the playing surface, placing spectators … in danger of injury.”

The Appellate Division held that the change in position of the goals and the possibility that pucks could more readily go into the stands from the changed position led to a question of fact to deny defendants’ motions for summary judgment.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information.

Music School Denied Additional Insured Status For Negligent Mopping (NY)

Additional insured endorsements often require a causal connection between the named insured’s acts or omissions and the loss in order to trigger coverage to the additional insured. The intention is to provide coverage to additional insureds exposed to vicarious liability while avoiding coverage for the additional insured’s own negligence.

In Hanover Ins. Co. v Philadelphia Indem. Ins. Co., the First Department determined whether the Manhattan School of Music was entitled to coverage as an additional insured under a policy issued to Protection Plus. In the underlying personal injury action, a security guard employed by Protection Plus alleged that he slipped and fell on a recently mopped floor while working at the Manhattan School. The testimony revealed that the Manhattan School was responsible for having wet-mopped the hallway floor prior to the plaintiff’s fall. The trial court found that the security company who employed plaintiff was equally liable with the music school.

The insurance policy at issue provided that additional insured coverage applied to “any bodily injury caused, in whole or in part,” by the “acts or omissions” of the named insured. The court determined that the language in the endorsement was intended to provide coverage for an additional insured’s vicarious or contributory negligence, and to specifically exclude coverage for the sole negligence of any additional insured.

Accordingly, when coverage is limited to an injury “caused, in whole or part” by the “acts or omissions” of the named insured, an additional insured is entitled to coverage only when the damages are the result of the named insured’s negligence or some other act or omission by the named insured. Here, there was no negligence by the named insured and because the additional insured Manhattan School caused the wet floor condition which caused the plaintiff’s fall, the Manhattan School was not entitled to coverage as an additional insured under the policy.

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

No Additional Insured Coverage for Grossly Negligent Strip Mall Owner (NJ)

In Moran-Alvardo v. Nevada Court Realty, LLC, the plaintiff fell on snow and ice in the parking lot of a strip mall where Dunkin Donuts was a commercial tenant. Plaintiff sued Dunkin Donuts and the strip mall owner due to the injuries he allegedly incurred from the fall. Subsequently, the strip mall owner filed a third-party complaint against Dunkin Donuts pursuant to a contractual indemnification provision in its lease agreement.

In the trial court, the parties stipulated that the strip mall owner was contractually obligated to remove ice and snow in the area of plaintiff’s fall. According to plaintiff, snow and ice had not been “touched.” Thereafter, the trial court held that the strip mall owner’s failure to remove snow and ice three days after the last snow fall constituted gross negligence. The trial court also noted that the lease agreement indemnified the strip mall owner for negligence—but not gross negligence or willful misconduct. As such, Dunkin Donuts was relieved from its contractual responsibility to indemnify the strip mall owner, but Dunkin Donut’s insurer was still ordered to defend the strip mall owner.

The insurer challenged the trial court’s decision, finding that the strip mall owner was entitled to coverage under the policy’s additional insured provision. The insurer argued that it was irreconcilable to require it to provide coverage to the strip mall owner when the trial court already found that the strip mall owner was grossly negligent. Citing prior precedent, the insurer argued that its obligation to provide coverage to a named additional insured (the strip mall owner) must be “coextensive with scope of [the] tenant’s own liability.”

The Appellate Division held in favor of the insurer and reversed the trial court’s order that required defense of the strip mall owner. The Appellate Division reasoned that the lease agreement only obligated Dunkin Donuts to maintain a CGL policy naming the strip mall as an additional insured and the resultant policy expressly excluded the strip mall’s grossly negligent conduct.

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

PA Court Holds Instagram Account Discoverable

Pennsylvania law on the discoverability of social media records remains in flux, but a recent decision involving an auto accident and Instagram photos gives some guidance to circumstances in which a party may be compelled to provide discovery pertaining to social media content.

In Kelter v. Flanagan, plaintiff filed suit after suffering injuries in an automobile accident. Following the deposition of the plaintiff, defendant filed a motion to compel, seeking log-in information to plaintiff’s Instagram account.

Pennsylvania law states that relevant information may be obtained in discovery unless it is privileged. As held in previous cases, social networking accounts can be discoverable if it appears that they likely contain information that could be relevant, supported by the fact that there does not appear to be an expectation of privacy for social media accounts as because the account holder is sharing information with others in a public or quasi-public domain.

In this case, plaintiff had publicly viewable Instagram posts showing her engaged in various physical activities after the accident. The posts included references to the plaintiff shoveling snow and going to the gym after the accident, although in her testimony she claimed that her injuries made her unable to engage in these activities. The judge explained that the posts were certainly relevant to establish the extent of her injuries and the success of her rehabilitation.

The defendant asked for further discovery on plaintiff’s Instagram account, but plaintiff opposed, arguing that defendants already had access to all of the information because her Instagram posts at the time of the deposition were maintained in a public account. The defendant argued that the plaintiff could switch her account to private access at any time, leaving the defendant with no access to the information contained in the posts. The defendant also raised concerns that previously public posts could be deleted.

The court found that the facts of this case established that there may be other relevant information about the plaintiff’s injuries contained in her Instagram account. The judge explained that the fact that there were some available public posts for a period of time did not eliminate the need for full access to plaintiff’s account, as the account could be converted to a private account, blocking the defendant’s access to the information. The judge further instructed the plaintiff not to remove any content from her Instagram account and defense counsel shall not share information gathered from plaintiff’s account with anyone not involved in the case.

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

School Dodges Wrestling Hold Claim (NY)

In Hale v. Holley Central School District, Plaintiff was injured when an 11th-grade classmate unexpectedly walked up behind him before gym class and put him in a chokehold, causing him to lose consciousness and fall face-first against the floor. Defendant Holley Central School District moved for summary judgment under the theory that there was insufficient notice that the student who placed plaintiff in a sleeper hold was dangerous or would have caused such injury. The lower Court disagreed and denied defendant’s motion. Defendant appealed to the Appellate Division, Fourth Department.

A school has a duty to adequately supervise the students in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, as they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable ‘for every thoughtless or careless act by which one pupil may injure another.’

As such, the Fourth Department ruled the lower court erred in denying summary judgment as there was no actual or constructive notice of the student’s behavior such that the student’s act could be reasonably anticipated. According to school records, the student never engaged in any disorderly or violent conduct in any previous gym class. Although the student had a disciplinary problem, the Fourth Department ruled that the student’s prior endangering conduct was too remote to provide defendant with sufficiently specific knowledge or notice.

Furthermore, the Fourth Department was not persuaded by plaintiff’s argument based upon the mixed grade levels in the gym class and, relatedly, the size differences between plaintiff and the other student. The evidence established that it was common for students to wait in the gym until all students exited the locker room before class began. The gym teacher usually would be in his office during this time period because his office had doors leading directly to both the gym and the locker room, which allowed him to monitor both areas simultaneously. Unlike cases in which there was a history of dangerous conduct, the Fourth Department concluded that there was nothing in the record that provided defendant or its gym teacher with specific knowledge or notice of previous dangerous circumstances or conduct.

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