Author Archives: Nicole Y. Brown

Beware Of Boozy Patrons (NY)

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Owners of establishments that serve alcohol must be conscious and wary of selling alcohol to those who have had too much to drink.  Sullivan v. Mulinos of Westchester reaffirms the Dram Shop Act’s purpose to prevent such establishments from escaping liability for their blatant disregard for a person’s visible intoxication.

Sullivan died after he lost control of his car, struck a lamp pole, went over a guardrail and plunged into the Hudson River.  He was allegedly intoxicated and had patronized Mulinos’ establishment and Trotters Tavern.  Sullivan’s estate sued Mulinos and Trotters Tavern under the Dram Shop Act based on a claim that they had sold alcohol to Sullivan while he was visibly intoxicated.

During trial, testimony was elicited from several witnesses who had been with Sullivan at Mulinos and later drove him to Trotters Tavern.  According to the witnesses, Sullivan had consumed numerous drinks before leaving Mulinos and was visibly intoxicated.  Despite this, the trial court granted a directed verdict for the defendants at the close of evidence.

On appeal, the Second Department found that there was a reasonable connection between Mulinos’ alleged unlawful sale of alcohol and the resulting damages.  Similarly, the court found that the evidence was sufficient to establish that Trotters Tavern served Sullivan while he was visibly intoxicated.  Thus, the court held that the matter should have been submitted to a jury as to whether the defendants violated the Dram Shop Act.

Special thanks to Lora Gleicher for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

Statements In Police Report Insufficient To Create Issue Of Fact (NY)

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In automobile cases where there was a police response, sometimes we get a great police report that contains statements favorable to our defense, but we caution that these statements may not be admissible as Roman v. Cabrera demonstrates.

Roman was changing a tire on the shoulder of I-95 when Cabrera struck him with her car.  Cabrera claimed that she was avoiding Lawrence’s car that was disabled in the left lane.  During Lawrence’s deposition, he testified that his car became disabled after he was struck by an unknown vehicle causing him to hit the median divider.  The police report contained a notation from the responding state trooper that Cabrera had swerved to avoid Lawrence’s vehicle and in so doing lost control of her vehicle and struck Roman.  Lawrence moved for summary judgment after his deposition.  Roman opposed the motion relying heavily on the statements in the police report.  The trial court eventually ruled that issues of fact existed as to whether Lawrence was negligent.

On appeal, the First Department reversed, finding that the police report was inadmissible hearsay, since the state trooper had not witnessed the accident.  The court further noted that even if the report were admissible, it was still insufficient to raise an issue of fact since liability may not be imposed on a party who simply furnishes the occasion for an incident to occur, but was not one its causes.  The court held that the report did not raise an inference that Lawrence’s actions caused the emergency created when his vehicle hit the median.

Special thanks to Michael Nunley for his contribution to this post.  For more information, please contact Nicole Y. Brown at .

Plaintiff, It’s Important To Know Where You Fell

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Often times, plaintiffs will provide vague, non-specific and/or inaccurate descriptions of where the alleged accident occurred.  Such descriptions can provide a basis for dismissal of their case.

Guillermo Robles claimed that he tripped and fell because of a dangerous condition in the courtyard of a Housing Authority complex where he lived.  In his notice of claim Robles alleged that he tripped on a raised concrete perimeter while walking through the courtyard and during his § 50-h hearing, he identified a specific tree well as being the location of his accident.  However, after commencing suit, Robles served a bill of particulars in which he identified a different tree well in a different area of the courtyard as the accident location.  Once deposed, he reverted back to the original tree well as the site of his accident.

In its summary judgment motion, the Housing Authority argued that it had been prejudiced by the ever changing accident location and that Robles was improperly attempting to feign an issue of fact by altering his testimony.  Despite these discrepancies, the lower court denied the motion.  In reversing the decision on appeal, a divided First Department noted that Robles provided a vague description of the accident location in his notice of claim and failed to describe the location with sufficient particularity.  The court further emphasized that Robles’ contradictory accounts of where the accident occurred obscured the correct location of the accident, further rendering the notice of claim defective, thereby prejudicing the Housing Authority.

Special thanks to Alicia Sklan for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

Trivial Sidewalk Defect Is A Question For The Jury (PA)

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In Shaw v. Thomas Jefferson University and City of Philadelphia, the plaintiff fell on a sidewalk at Thomas Jefferson University.  Shaw filed a complaint against the University and the City of Philadelphia alleging that there was an irregularity and/or unsafe condition in the sidewalk that caused her to fall and injure herself.  During her deposition, Shaw testified that her view of the sidewalk was unobstructed and that she was not looking down at the time of her fall.  She further testified that following her fall she visited the site of the accident to measure the sidewalk and noted that there was a 2 to 2½ inch elevation change from one segment of the sidewalk to the next.

The University and the City both filed motions for summary judgment claiming they were not negligent because, among other things, the sidewalk defect was trivial.  The trial court granted both motions and dismissed all claims against both defendants.  On appeal, Shaw argued that the trial court erred by determining that the defect in the sidewalk was trivial and not a question for the jury.  The appellate court noted that it was well-settled that a sidewalk defect may be so trivial that a court must hold, as a matter of law, that the property owner was not negligent in allowing it to exist; however, it also noted that there was no bright-line rule that can be used to determine “the depth of size of a sidewalk depression necessary to convict an owner of premises of negligence in permitting its continued existence.”  As such, the court agreed with Shaw that summary judgment should not have been granted because no bright-line rule exists for a court to use in determining whether a sidewalk defect is trivial.  The court further held that this was a question that should have been submitted to a jury.

Special thanks to Colleen Hayes for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

Prejudicial Summation Results in Mistrial (NY)

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In Carter v. Antwi, the infant plaintiff was a passenger in a vehicle owned and operated by Merlene and Fred Carter, respectively.  The infant plaintiff allegedly sustained injuries when the vehicle he was in collided with a vehicle that Diana Antwi owned and Jason Sandy operated.  In addition to Antwi and Sandy, Fred Carter was named as a defendant in the resulting lawsuit.

The case eventually went to trial during which Sandy gave direct testimony, but failed to return to court for cross-examination.  Consequently, the court struck Sandy’s testimony, but permitted the parties to read from his deposition transcript.  A key issue arose in that the certified police accident report documented Sandy telling the responding police officer that he did not know the light was red and that he had lost control of his vehicle.  However, Sandy’s deposition testimony contradicted the report.

Prior to closing arguments, Carter settled the case with Antwi and Sandy, both of whom were then absent for the remainder of the trial.  Nevertheless, for purposes of apportionment, the question of Sandy’s negligence was submitted to the jury.   Prior to summations, defense counsel asked the trial judge about addressing Sandy’s stricken testimony and his absence from the balance of the trial.  The judge ruled that he would remind the jury f Sandy’s stricken testimony and that the testimony was stricken because all attorneys did not get to question him.  The judge further admonished the jury not to speculate as to why counsel for Sandy and Antwi were not present for the remainder of the trial.

Despite the judge’s ruling, defense counsel addressed Sandy’s stricken testimony and the absence of both Sandy and his counsel from the courtroom.  Counsel referenced the “empty chairs” and further stated that the police report that reflected Sandy’s contradictory statements was the reason Sandy was no longer in the case.  The judge interrupted summations and admonished defense counsel outside of the jury’s presence.  The plaintiff’s attorney moved for a mistrial due to the prejudicial nature of defense counsel’s summations.  The judge reserved decision and gave a curative instruction regarding the references to Sandy during summations.  The jury ultimately found that Carter was not negligent and plaintiff renewed the motion for a mistrial.

In granting the mistrial, the court admonished counsel for directing the jury to consider a matter that was expressly not to be considered – Sandy and his attorney’s absence from the courtroom – and suggesting that their absence was due to Sandy’s admission of fault in the police accident report.  Despite the curative instruction, the court noted that counsel had implied that a settlement with Sandy was reached due to his admission in the accident report and that this was the reason Sandy and his counsel were not present in the courtroom.  The court ruled that the comments were sufficiently prejudicial to the plaintiffs and that a new trial was warranted.

This decision serves as a warning that there is a fine line between being a zealous advocate for your client and ignoring the court’s express instructions.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

Purpose For Truck Use Determines Whether Coverage Limit In Safety Regulation Applies (NJ)

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In Allstate Insurance Company v.  Penske Truck Leasing, the court considered whether a registered interstate motor carrier was required to maintain $750,000 in coverage on a truck that was operated by an individual renter for a personal purpose.

Meir Dorfman rented a truck from Penske, a registered interstate motor carrier.  Penske had motor vehicle insurance with a limit of $1 million in coverage through Old Republic.  The Old Republic insurance policy contained a step-down provision for leased vehicles that provided liability coverage as for lessees and renters of covered autos as insureds, but only to the extent and for the limits of liability agreed to under their contractual agreement with Penske.  Dorfman opted for the limited liability coverage that Penske provided in the rental agreement in the amount of $15,000/$30,000.  However, Dorfman failed to purchase supplemental liability coverage and did not have any personal coverage.

While driving the truck in New Jersey, Dorfman was involved in a motor vehicle accident that caused injuries to Carmen Quinones, the driver of the other vehicle, and two passengers in Quinones’ vehicle.  Allstate, Quinones’ automobile carrier, paid PIP benefits to the three occupants of Quinones’ vehicle and the defendants settled the three lawsuits brought by the three injured individuals for a total sum of $30,000.  Allstate then sought reimbursement from Old Republic for the PIP benefits it had paid.

Old Republic claimed that it did not have to reimburse Allstate since Old Republic had exhausted its policy limits.  Allstate argued that since the truck was a registered interstate motor carrier Penske was required to maintain $750,000 in coverage under the Federal Motor Carrier Safety Regulations.  These regulations set the minimum levels of financial responsibility as $750,000 for all for-hire motor carriers of nonhazardous property.

The court found that, since Dorfman was using the truck for personal reasons, was not working as an interstate motor carrier and was not transporting any property for pay, the Federal regulation mandating $750,000 in coverage did not apply.  Accordingly, the court determined that since Old Republic had exhausted its policy limits, Allstate was not entitled to reimbursement of PIP benefits.

Special thanks to Heather Aquino for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

Bikini Top “Emergency” Averts Liability for Fatal Crash (NY)

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In a 3-1 decision, the Appellate Division, Second Department recently upheld a trial court’s decision declining to set aside a defense verdict in favor of a driver who caused a fatal accident after a passenger in her vehicle undid the driver’s bikini top thereby exposing her breasts.

In Pelletier v. Lahm, Brittany Lahm was driving her vehicle on the New York Thruway when her passenger, Brandon Berman, suddenly pulled the strings on Lahm’s bikini top, thereby causing it to fall.  Lahm reacted by taking her hands off the steering wheel for a split second to cover herself.  While her hands were off the steering wheel, the car suddenly veered to the right.  When she tried to correct this, she lost control and the car struck the center guardrail, flipped over and came to rest upside down in the southbound lanes, killing the plaintiff who was also a passenger in Lahm’s car.

After testimony, the court charged the jury on the “emergency doctrine.”  Under New York law, the “emergency doctrine” recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.

Unexpectedly, the jury came back with a defense verdict in favor of Lahm, finding that her reaction to her bikini top suddenly being undone was reasonable.  The plaintiffs moved to set aside the jury’s verdict and the trial court denied the motion.  In upholding the decision, the Appellate Division found that the trial court properly charged the jury with the emergency doctrine because there was a reasonable view of the evidence supporting the occurrence of a qualifying emergency that was not of Lahm’s doing, which left it in the hands of the jury to determine whether there was an emergency and if so, whether Lahm’s actions were reasonable and prudent.

This case demonstrates the wide latitude with which the emergency doctrine can be used as a defense to negligence.

Special thanks to Michael Nunley for his contributions to this post.  For more information, please contact Nicole Y. Brown at .

Denying Coverage Based On An Insured’s Untimely Report Must Be Assessed On A Case-By-Case Basis (PA)

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The Pennsylvania Supreme Court recently held that an insurance company must prove prejudice before denying underinsured motorist benefits.  In Vanderhoff v. Harleysville Insurance, Forester Vanderhoff rear-ended a car driven by Ryan Piontkowski, while both vehicles were waiting at a busy intersection.  A factual dispute in the case was whether Piontkowski stopped suddenly to yield to an unidentified vehicle, which would have been considered an underinsured motor vehicle under the Motor Vehicle Financial Responsibility Law.

Almost eight months after the accident, Vanderhoff filed a claim for underinsured motorist benefits with his insurance company, Harleysville.  Vanderhoff’s policy, however, included a provision that required prompt notice and a 30-day reporting requirement for coverage to be triggered under the policy.  Furthermore, Vanderhoff had failed to allege the existence of the unidentified vehicle until several months after the accident had occurred.

The case went to arbitration and Vanderhoff was awarded $500,000.  However, Harleysville appealed the award citing Vanderhoff’s delay in reporting the accident and the unidentified vehicle.  Vanderhoff argued that Harleysville needed to show, with concrete evidence, that it was prejudiced by Vanderhoff’s actions.  Ultimately, the Pennsylvania Supreme Court held that, although an insured filing an untimely report was not in and of itself prejudicial, an eight month delay in reporting the alleged unidentified motor vehicle had in fact prejudiced the insurer.  The Court, however, noted a caveat to this ruling by stating that, in general, future cases involving untimely reporting should be examined on a case-by-case basis.

Special thanks to Colleen Hayes for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

Claim of NJ Shooting Witness Barred By The Torts Claims Act

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In the recent New Jersey unreported decision of Carl Mann, Jr. v. Officer Chad Walder, et al., the court considered whether a plaintiff’s claim for negligent infliction of emotional distress overcame the threshold criteria for maintaining an action under the Torts Claims Act.  This Act requires that the plaintiff show that he sustained a permanent injury and incurred medical expenses in excess of $3,600 in order to maintain his action.

Mann was 16 years old when he witnessed the fatal shooting of his uncle by the police.  Mann suffered no physical injuries, but claimed to have suffered extreme emotional damage as a result of the occurrence.  His expenses for his medical care totaled $187.  Mann eventually sued the officers to recover for his emotional injuries and ultimately offered an expert to support his claim.  While Mann’s expert opined that he suffered from emotional issues that affected his daily life, the expert’s report noted that Mann had graduated from high school, slept well at night without nightmares and had no difficulty performing his job functions.  The trial court granted summary judgment to the defendants based on Mann’s failure to meet the threshold requirements for maintaining suit under the Torts Claims Act.

On appeal, Mann argued that he met the thresholds set forth in the Torts Claims Act.  However, the Appellate Court found that Mann’s subjective complaints of emotional distress did not constitute a permanent injury.  The court also disagreed with Mann’s argument that the value of the medical services he received was reduced by the fact that he was a Medicaid recipient.  Under the legislative mandate, the cost, rather than the value, of the treatment must be measured.  Ultimately, the Appellate Court upheld dismissal of Mann’s complaint.

Special thanks to Heather Aquino for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

Blake Labor Law Defense Stands: Plaintiff’s Own Negligence Bars Recovery (NY)

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In Barreto v. Metropolitan Transportation Authority, the First Department upheld the lower court’s decision that granted the defendants’ summary judgment motions and denied the plaintiff’s cross-motion for partial summary judgment on his common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims.

Barreto was performing asbestos removal work below ground.  In order to do this work, he and his co-workers had constructed a wooden enclosure around the manhole cover that they then covered with plastic sheeting to protect the surroundings from asbestos contamination.  An opening was left in the enclosure to provide access to the manhole.  Inspectors from the Metropolitan Transportation Authority checked to ensure that the electricity had been turned off and an outside safety consultant monitored the below ground air quality.  Once approval was given permission, Barreto’s co-workers removed the cover and placed it outside the enclosure.  They then sealed the opening and descended through the manhole.  At the end of the shift, the workers removed their equipment from below ground, exited the manhole, replaced its cover and dismantled the containment enclosure surrounding the manhole.

Barreto was injured at the end of his shift, after climbing out of the manhole.  Instead of covering the manhole as he had been directed to, Barreto and his co-workers began dismantling the containment enclosure.  In the process of doing so, Barreto fell into the hole.  During discovery, Barreto conceded that earlier that day his supervisor had told him to cover the manhole before breaking down the enclosure.

The First Department noted that Barreto’s own actions were the sole proximate cause of his accident.  Barreto was provided with the perfect safety device — the manhole cover.  Yet, he chose not to use it and disregarded his supervisor’s explicit instructions.  Moreover, the court noted that since Barreto had just emerged from the manhole, he should have known that it was still open and should have avoided it.

In an attempt to defeat the defendants’ summary judgment motions, Barreto argued that a guardrail should have been placed around the manhole, but the court rejected this and also rejected Barreto’s argument that safety netting or a harness should have been provided.  Simply put, the manhole cover itself was sufficient.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at .