Author Archives: Nicole Y. Brown

No Punitives For Playground Personal Injury (PA)

Posted on by

In Saul v. Spring Valley Fitness, Inc., a Pennsylvania trial court analyzed the sufficiency of the plaintiff’s evidence with respect to her claim for punitive damages.

Saul was a member of Spring Valley Fitness, an exercise facility that provided a playground for its members’ children to play, while the parents worked out.  Saul claimed that while she was exercising, her child was injured on the playground when she fell from some equipment and broke her arm.  Saul contended that SVF did not provide her with verbal or written warning about the inherent dangers of the playground, despite the fact that a week before another child had injured himself on the same playground.

Saul sued for damages under a negligence theory and also alleged that SVF’s behavior was reckless and, as such, warranted the award of punitive damages.  In support of her claim for punitive damages, Saul offered an expert report that opined that the playground was a gross deviation from the reasonable and prudent standards of care and that the child’s injuries were directly related to SVF’s reckless indifference.  Coupled with the fact that two accidents had occurred within a short time period, Saul claimed that was entitled to punitive damages.

In determining whether Saul was entitled to punitive damages, the court noted that she would need to establish that SVF acted in an outrageous fashion either due to an evil motive or due to a reckless, willful or wanton indifference to others.  Further, the court defined reckless behavior as conduct that creates an unreasonable risk of physical harm to another and such risk is substantially greater than the standard used to prove basic negligence; however, a showing of gross negligence is insufficient and would not result in punitive damages.  Ultimately, the court concluded that SVF’s alleged failure to supervise, evidenced by the two accidents did not constitute reckless behavior.  The evidence that Saul offered merely established that SVF was inept and likely committed gross negligence.  Therefore, Saul was not entitled to punitive damages.

Thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

School Immune From Suit For Student’s Fall On Ice (NJ)

Posted on by

In New Jersey, public entities are generally afforded immunity from suits involving personal injuries, with limited exceptions. The plaintiff in Guerrero v. Toms River Regional Schools Board of Education, attempted to establish that such an exception existed in her suit against her school board for injuries she suffered after she slipped on ice. Both the lower and appellate court disagreed, finding in favor of the school board.

Guerrero was a student at one of the high schools that comprised the Toms River Regional School District. At the time of her alleged accident, Guerrero was walking outside on one of the school walkways in an effort to avoid the crowded hallways inside so as not to be late for her next class. Guerrero noticed that the walkway was icy and tried to go back, but the door had locked behind her and could not be opened from the outside. She fell while walking along the walkway. Earlier that morning, a school wide announcement had been made over the public address system warning students against walking in that particular area due to the inclement weather.  It had snowed a few days earlier and had rained the night before and the school’s maintenance staff had cleared the snow and ice the day before Guerrero’s accident.

The school board eventually moved for summary judgment arguing that it was immune from suit under the New Jersey Torts Claims Act and under New Jersey’s common-law immunity that will not hold public entities liable for negligent snow removal activities.  Guerrero argued that this case presents an exception to the general rule and required the imposition of liability since the initial snow event was days old and the school voluntarily undertook to use its resources to initially remove the snow, but then failed to address the conditions again for a period of time, thereby negating the immunity.  Guerrero also attempted to liken the school to a commercial landlord, but the court rejected this argument, refused to overturn the legislative intent behind the statute and found that common law immunity applied.

Thanks to Heather Aquino for her contribution to this post. For more information, please contact Nicole Y. Brown at .

NY’s “One Free Bite” Rule: The Case of the Ferocious Feline

Posted on by

New York State has a 188-year-old policy that refuses to recognize common-law negligence as it relates to personal injury cases involving domestic animals. Rather, New York imposes strict liability for any injury caused by a domestic animal, but only if the animal’s owner had knowledge of the animal’s vicious propensities

In the recent case Napolitano v. Alshaebi, the owner of a Brooklyn bodega where an allegedly “ferocious feline” attacked a customer was granted summary judgment because there was no proof that he was aware of the cat’s vicious tendencies. Specifically, the plaintiff in this case had entered the bodega with her miniature schnauzer to buy a newspaper. After paying the clerk, she noticed a “large, grey, opossum-like cat” emerge from one of the shelves. The cat swatted at the plaintiff’s dog, and as the plaintiff bent down to scoop up her dog, the “ferocious feline” attacked her right leg injuring her calf. Significantly, the bodega owner testified at his deposition that he did not own, harbor, or even see the cat prior to this incident. However, plaintiff submitted a document showing a handwritten note by the owner that stated the cat “came with the store.”

The Court reasoned that although the plaintiff had arguably raised an issue of fact regarding whether the owner “harbored” the cat, “she offered no evidence demonstrating that the cat exhibited a proclivity to act in a way that puts others at risk of harm.” Consequently, the Court granted the bodega owner’s motion for summary judgment and dismissed the complaint.

Although critics have complained that New York’s rule basically gives animals “one free bite” before an owner is held liable, the law has remained unchanged. If you live in and around the New York City area, chances are that you have walked into a bodega and seen a cat stretched across the floor. Even though most of us do not associate cats with “violent propensities,” you may want to think twice before bending down to pet a cat in a bodega, lest you encounter another “ferocious feline.”

Thanks to Jeremy Seeman for his contribution to this post. For more information, please contact Nicole Y. Brown at .

Eastern District Chips Away at 402(a) in Medical Device Cases

Posted on by

Recently, the United States District Court for the Eastern District of Pennsylvania continued the federal courts’ test of Section 402(a) of the Restatement (Second) of Torts by concluding that allegations of manufacturing defects in medical devices and products are barred under Pennsylvania law.

In the case of Terrell v. Davol, Inc.., the plaintiff brought suit against the manufacturers of a medical mesh designed to aid in the treatment of hernias when it was discovered that the device was the cause of a severe gastrointestinal disorder.  In her suit, the plaintiff specifically alleged that the manufacturers were, among other things, strictly liable for certain alleged manufacturing defects in the mesh.  However, relying on longstanding Pennsylvania precedent barring strict liability claims against prescription drug manufacturers, the defendants moved to dismiss the plaintiff’s Section 402(a) claims for strict liability arguing that she could only recover if the production of the mesh was actually negligent.

In ultimately siding with the defendants and granting the motion to dismiss, Judge Joel H. Slomsky found that while Pennsylvania’s traditional interpretation of Section 402(a) has all but solidified strict liability for product manufacturers, an exception has been carved out for the makers of medications and medical devices.  Specifically, Judge Slomsky explained that Pennsylvania has adopted the reasoning of Hahn v. Richter in the context of medical devices to bar strict liability claims because the punitive effect would undermine the public’s access to potentially life-saving products.  Yet, Judge Slomsky went beyond the traditional principles of Hahn to more precisely conclude that Pennsylvania law even bars strict liability claims regarding manufacturing errors in the product at issue.  Instead, Judge Slomsky reasoned that the principles in Hahn implicitly operate to require a showing of negligence in the design or manufacture of a medical product before the plaintiff can recover as a matter of law.

While a subtle counter to Pennsylvania’s extreme products liability regime, the Court’s decision in Terrell reaffirms the evolving notion that modern products cases incorporate ordinary negligence principles by implying that liability should correlate with social utility.  In so holding, Terrell places further pressure on the Pennsylvania Supreme Court to finally decide the direction of products liability in the Commonwealth vis-à-vis the Restatement (Second) of Torts.

Thanks to Adam Gomez for his contribution to this post.  For more information, please email Paul Clark at .

Injured Plaintiffs Lack Standing To Enforce Insurance Contracts (PA)

Posted on by

In Nalesnik v. United Nat’l Ins. Co., the plaintiff, an independent contractor, was injured while performing renovation work on Blue Label Properties’ property.  Blue Label was insured under a policy that covered bodily injuries sustained on its property.  Ultimately, the plaintiff sued Blue Label, but Blue Label’s carrier refused to provide a defense claiming that coverage was excluded under the policy’s independent contractor endorsement.  Consequently, the plaintiff commenced a declaratory judgment action to determine whether the carrier’s obligations under the policy.

In its analysis, the court initially noted that, generally, the duty of an insurer runs only to its insured, not to third parties to the contract.  Therefore, in order for the plaintiff to establish that he was aggrieved by any breach of the insurance policy, he needed to show a legal duty owed to him as a third-party beneficiary of the policy.  The court reasoned that for a third-party to have standing to recover under these circumstances, both contracting parties needed to have made such coverage explicit.  Here, the court noted that the plaintiff was not a named insured and was not identified as a third-party beneficiary on the policy.

But, the court’s analysis did not end there.  The court noted that an intended third-party beneficiary did not need to be expressly identified in the contract if recognition of the beneficiary’s rights would effectuate the intention of the parties and either party was a creditor or done beneficiary.  The court concluded that the plaintiff was not a creditor or donee beneficiary and there was no evidence to suggest that the carrier intended to confer any benefit to the plaintiff.  Therefore, the plaintiff did not have standing to compel the carrier to provide overage to Blue Label and the plaintiff’s suit was dismissed.

Thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

School Van Is An “Automobile” Under NJ’s PIP Statute

Posted on by

In the recent unreported decision of Taveras v. Roman, the court considered whether a minivan that is used as a school vehicle falls within the definition of any automobile under N.J.S.A. for purposes of PIP benefits. The plaintiff was employed as a driver for School Tyme, a company that contracted with various school districts for the transportation of special needs children. School Tyme allowed the plaintiff to use one of the minivans for travel to and from work and to keep the van at her home overnight.   The minivan’s rear bumper was marked with the words “School Vehicle”, and its license plate was marked as a commercial vehicle.

While driving the minivan from work, the plaintiff was involved in a rear end collision and suffered injuries. She had an auto insurance policy through Cure that covered her personally owned vehicle. When the plaintiff submitted her claim, Cure denied her PIP benefits, arguing that her injuries did not result from the ownership, maintenance or use of an automobile. After suit was filed, Cure moved for summary judgment, arguing that the plaintiff was operating a school bus and, as such, the vehicle was not an automobile eligible for PIP benefits under the statute. The trial court denied Cure’s motion for summary judgment and, on appeal the appellate court noted that PIP coverage is only available in New Jersey when a vehicle meets the statutory definition of an automobile. The statute establishes two categories of vehicles subject to PIP coverage. The first category applies to “a private passenger automobile of a private passenger or station wagon type.” The second category applies to a variety of other specified types of motor vehicles that are not used for business purposes.

The court ultimately opined that the minivan driven by the plaintiff was a “station wagon type automobile” that falls within the first of the categories of automobile under N.J.S.A. and, therefore, could not serve as a basis for Cure to deny PIP benefits to the plaintiff.

Thanks to Heather Aquino for her contribution to this post. For more information, please contact Nicole Y. Brown at .

Protect Yourself Security Guards, Because NY’s Labor Law §200 Certainly Will Not

Posted on by

In a recent personal injury case entitled Troup v. Bovis Lend Lease, et al., New York’s Supreme Court decided that a security guard working at a construction site is not an employee protected by Labor Law §200, the codification of the common-law duty to provide employees with a safe work environment. In Troup, the plaintiff security guard was assaulted by a construction worker after instructing that worker that he could not enter the job site without proper identification. The plaintiff sued the owner of the building, the general contractor and the construction manager, alleging violations of Labor Law §200 and common-law negligence.

In seeking dismissal of the claims, the defendants argued that as a security guard, the plaintiff was not entitled to the protections of the Labor Law, and the Court agreed. The Court reasoned that to be liable under a Labor Law §200 claim, an owner or contractor must have created or had notice of the alleged dangerous condition that caused the accident. The Court opined that a security guard is simply not a person who is entitled to the protection of the Labor Law because he was not permitted to work on the building or structure and he was not performing work necessary and incidental to the erection or repair of a building or structure.

Thanks to Jeremy Seeman for his contribution to this post. For more information, please contact Nicole Y. Brown at .

Abutting Property Owners Have No Duty To Maintain The Curb (NY)

Posted on by

Oftentimes in a trip and fall case that takes place in the street or sidewalk, the plaintiff will include the abutting property owner as a defendant. This is a sensible act on the part of plaintiffs as there are often numerous parties that could be responsible for whatever defect may have caused the accident. However, abutting landowners can escape liability for the maintenance of sidewalks, or lack thereof, despite prior sidewalk repairs.

In Foley v. The City of New York, the plaintiff claimed personal injuries after having tripped over a curbstone. She sued the City of New York, as well as the owner of the grocery store that abutted the sidewalk where she fell. She claimed that more than four years before the accident, the grocery store owner had rebuilt the sidewalk once or twice, and as such, was responsible for its upkeep.

In granting the grocery store’s motion for summary judgment, the Court opined that an abutting property owner has no duty to maintain the curb. Regarding certain testimony of the grocery store owner about past sidewalk repairs, the Court stated that it was unreasonable “to infer from the testimony on sidewalk repair that the landlord performed any repair to the curb at issue.”

Unless a property owner testifies about repairs that were made to the specific curb upon which a plaintiff trips, defendants can rest easy with the knowledge that merely owning the property does not impose a duty to maintain the street curb. In a city with as many pedestrians as New York, it’s nice to see property owners being protected where they have done nothing wrong.

Thanks to Jeremy E. Seeman for his contribution to this post. For more information, please contact Nicole Y. Brown at .

Icy Road + Multi-Car Collision = Weather Immunity Barred Claims (NJ)

Posted on by

Yiping Xing was involved in a multi-car collision that was caused by icy road conditions.  After exiting his car, Xing was injured after falling thirty feet from the elevated roadway, apparently while trying to get out of the way of another oncoming car.

The New Jersey Department of Transportation and New Jersey State Police moved for summary judgment based on the weather immunity conferred by the Torts Claims Act which extends immunity to public entities for injuries caused solely by the effects of weather conditions on a roadway.  Xing opposed the motion, arguing that his injuries resulted from dangerous conditions caused by other vehicles, in combination with the defendants’ failure to warn and, as such, weather immunity provision did not bar the claim.  The trial court agreed with Xing and denied the motion for summary judgment.

On appeal, the defendants argued that the weather immunity statute applied since all cars involved in the collision skidded on the roadway and crashed into each other because of any icy accumulation. Accordingly, they took the position that Xing’s accident was solely caused by the weather.  The appellate court agreed and granted summary judgment to the defendants.

Thanks to Heather Aquino for her contribution to this post. For more information, please contact Nicole Y. Brown at .

Why Did the Chicken…End Up On the Racetrack? And Who is Liable? (PA)

Posted on by

A day at the races took a turn for the worse when a horse out for a practice run was startled by multiple chickens, one of which was directly on the racetrack flapping its wings.  The horse’s jockey, Mario Calderon, was thrown when the horse abruptly bucked and bolted away from the erratic chicken.  Though Calderon was jolted out of the saddle, his foot remained stuck in the stirrup, and the terrified horse trampled and drug the jockey down the track causing several injuries that eventually resulted in fatal brain bleeds.

In Calderon v. Philadelphia Park Casino and Racetrack, Calderon’s wife sued the racetrack owner, maintaining that the owner was fully aware of both the chickens’ presence and the potential danger presented to the horses and employees.  The plaintiff argued that a similar accident occurred just five months prior, where another horse was spooked by a chicken and caused injury to the jockey, evidencing the owner’s knowledge of the unsafe work environment.  Conversely, the owner denied liability, contending that Calderon knew the dangers of being a jockey and accepted the risks of his employment.  Furthermore, the owner argued that the track had posted warning signs stating that all participants assumed any risk of injury associated with riding horses.

Nonetheless, a Philadelphia jury sided with the plaintiff, finding the racetrack owner liable and awarding compensatory, as well as punitive damages.  The evidence at trial showed that the chickens had been purposely brought to the track as pets by horse owners and trainers for over a decade.  The vice president of the Jockey Association testified that he had previously confronted the racetrack’s head of security to alert him that someone would be killed if the chickens continued to wander, but nothing was done in response.   Thus, the jury concluded that the owner of the track must take responsibility for the added danger to jockeys.

Thank to Coleen Hill for her contribution to this post.  For more information, please contact Nicole Y. Brown at .