Author Archives: Paul F. Clark

The Value of a Mat

Posted on by

In DiVetri v. ABM Janitorial Serv., Inc., a porter working for an outside contractor providing cleaning services was using a hose to clean the sidewalk near the building entrance.  At the same time, plaintiff was arriving at work in the same building.  As plaintiff entered the building, she noticed her toes were wet from the water on the sidewalk but thought nothing of it.  She walked through the lobby towards the elevators, and after several steps, she slipped and fell on the marble floor causing injuries.

The First Department held that issues of fact existed as to whether defendants created a dangerous condition by using a hose during the course of cleaning the sidewalk without taking any precautions to keep water from being tracked onto the marble floor.  The property owners were required to use reasonable care in preventing slippery conditions from tracked-in water.  While reasonable care does not require a property owner to completely cover a lobby floor with mats to prevent injury from tracked-in water, it may require at least some mats.  Here, the court denied the property owner’s motion for summary judgment as there was a question of fact as to whether mats were placed in the lobby while the porter was cleaning the sidewalk.

The court also denied the cleaning contractor’s motion for summary judgment.  While the court held that the contractor does not generally owe a duty of care to the plaintiff, it does owe a duty to use reasonable care in not launching an instrumentality of harm.  Here, the porter’s actions of not putting down mats while hosing down the sidewalk may have launched an instrumentality of harm causing the plaintiff’s injuries.

The court rejected the open and obvious defense.  The court held that even if condition was open and obvious, that only relates to the duty to warn, and does not relate to the duty to maintain in a reasonably safe condition.

This case demonstrates that it is difficult to escape liability when no precautions are taken to prevent tracked-in water on a slippery floor.  The value of using weather inclement mats when any water is involved, not just when it is raining , is priceless.

Thanks to Anne Henry for her contribution to this post. If you have any questions, please email Paul at .

Taking Unnecessary Work-Related Risk Leaves Plaintiff Holding The Bag

Posted on by

In Vega v. Suffolk Bancorp., an employee of an armored car company sued the bank where he allegedly sustained injury when lifting a bag of coins as part of his employment.  His theory was that bank employees overfilled the bag of coins and therefore created a dangerous condition, resulting in his injury.

The defendant bank argued that the plaintiff was injured confronting a risk inherent in his employment as a driver for an armored car service and that his lifting the bag with one hand and not seeking the assistance of his co-worker was the cause of his injury.  The bank established that the weight of the bag was not above a contractually agreed upon weight.

The plaintiff’s case was dismissed after the court concluded that the plaintiff could not pass blame on to others when he performed his job so incautiously as to injure himself.  The court cited previously brought by sanitation workers against homeowners for injuries sustained while lifting garbage into trucks.  One factor considered by the court was whether the plaintiff had the time or other resources to enable himself to perform the task safely.

The known risks to an armored car service employee are more likely security related but the court took an expansive view. Due to the extreme effect (dismissal of the case) of this “inherent risk” doctrine on plaintiffs, its use in personal injury cases is typically reserved to those instances where the underlying employment tasks involve consistently high levels of physical exertion.

Thanks to Jim Rogers for his contribution to this post.  If you have any questions, please email Paul at .

 

Third-Circuit Confirms Unconstitutionality of Same-Sex Marriage Ban

Posted on by

In May 2014, Judge Jones of the Middle District of Pennsylvania authored a majority opinion holding that Pennsylvania’s ban on same-sex marriage is unconstitutional.  Despite a pledge by PA governor Tom Corbett not to appeal the ruling, a Schuykill County official tried to take steps to appeal the case herself.

Judge Jones denied Register of Wills Theresa Santai-Gaffney’s motion to intervene in June, which she promptly appealed to the Third Circuit Court of Appeals.  Gaffney, a court clerk, claimed that her rights and duties were affected when marriage ban was overturned since she enforces marriage laws as part of her employment.  Judge Jones noted that Gaffney had no personal interest in the outcome of the case and her appeal was a contrived “to accomplish what the chief executive of the commonwealth…has declined to do”.

The Third Circuit issued a two sentence order affirming the district court’s opinion, saying specifically: “For essentially the reasons set forth in the opinion of the district court, the order denying the motion to intervene is summarily affirmed and the appeal is dismissed.”  This ruling provides the strongest affirmation for supporters of same-sex marriage in Pennsylvania and suggests that the courts will frown on any additional attempts to reinstate the ban.

Thanks to Remy Cahn for her contribution to this post. If you have any questions or comments, please email Paul at .

Second Department Breaks From Precedent? Stranger Things Have Happened (NY)

Posted on by

New York’s Appellate Division decides thousands of cases a year, particularly the First and Second Departments. Given this volume, there are bound to be some inconsistences and some…how should we put this… questionably reasoned decisions.

The Second Department’s decision in Bermejo v. New York City Health & Hosp. Corp. is one such case. In Bermejo, the plaintiff fell when the wooden platform from which he was working collapsed. When the plaintiff’s co-workers arrived after the collapse, they found one end of the platform on the floor and the other end hanging from the scaffold at a 45 degree angle. The plaintiff moved for and was granted summary judgment on his 240 cause of action.

The general contractor, Ibex, moved for and was granted summary judgment against the plaintiff’s employer, Marble, on its contractual indemnification claim. In granting Ibex’s motion, the court specifically held there was no evidence of Ibex’s negligence. Despite no evidence of Ibex’s negligence, the Second Department turned around and granted the owners common law indemnification against Ibex. So how could Ibex be compelled to indemnify the owners if it was not negligent? Because Ibex “exercised its authority to supervise plaintiff’s work and implement safety procedures.”

The court’s holding seems contradictory and at odds with the Court of Appeals decision in McCarthy v. Turner Construction Co., 17 N.Y.3d 369 (2011). In Turner, the Court limited a party’s duty to indemnify another to situations where the indemnitee was negligent or where the indemnitee actually supervised the injured plaintiff’s work. The court specifically held that having the authority to implement safety procedures is insufficient.

In our view, the Bermejo court’s holding requiring Ibex to indemnify the owners because it had implemented safety procedures is insufficient. Perhaps the court, in holding that Ibex “exercised its to supervise plaintiff’s work,” meant that Ibex indeed supervised plaintiff’s work. Otherwise, a motion to reargue, or for leave to appeal to the Court of Appeals, is a likely in the pipeline.

Thanks to Gabe Darwick for his contribution to this post. If you have an questions or comments, please email Paul at

“Limited Tort” Option Bars Plaintiff’s Claims for Soft Tissue Damages to Neck and Back (PA)

Posted on by

The Pennsylvania Motor Vehicle Financial Responsibility Act bars recovery for pain and suffering, and other non-economic losses when the insured selects the limited tort option. Non-economic losses are only recoverable if the injuries suffered fall within the “serious injury” definition under the policy. A “serious injury” is one which results in death, serious impairment of a bodily function, or permanent disfigurement. When the plaintiff alleges soft tissue injuries, and the resulting impairment is de minimis, a court should grant summary judgment to the defendants.

In Ramos v. Jones, as a result of a car accident between defendant Michael Jones and plaintiff Melanie Ramos, plaintiff alleged that she suffered sprains and strains of her neck and back, mental damages, and economic injuries. Defendants moved for partial summary judgment on the ground that any claims for non-economic losses were barred by the Motor Vehicle Financial Responsibility Act because plaintiff had selected the limited tort option on her insurance policy.

The medical records revealed that plaintiff’s physical injuries amounted to soft tissue damage to her neck and back. Furthermore, there was evidence that plaintiff had a history of neck pain prior to the accident. Plaintiff failed to show how these physical injuries interfered with her daily life aside from missing a few days of work and being unable to participate in physical activities with her children.

The court granted partial summary judgment for the defendants because plaintiff failed to show how the soft tissue injuries resulted in a substantial interference with any bodily function. The court reasoned that the medical records did not support her claims, and the impairment, when viewed in the light most favorable to the plaintiff, was clearly de minimis.

Thanks to Eric Clendening for his contribution to this post. If you have questions or comments, please email Paul at .

Choice of Law Leaves Plaintiff Empty-Handed (PA)

Posted on by

Pennsylvania’s approach to choice of law is supposed to be “workable and fair.” Recently, the Philadelphia Court of Common Pleas reviewed a case involving a claim for underinsured motorist coverage and a choice of law analysis, resulting in an empty-handed plaintiff.

In Inez Coates v. Nationwide Insurance Company, the plaintiff Inez Coates was operating her father’s Mitsubishi Galant when she was rear-ended by David Tamarchio’s van while driving in Philadelphia on the Schuylkill Expressway.  Coates settled the claim against Tamarchio for $100,000 – the auto policy limit.  Subsequently, Coates filed a claim for the underinsurance coverage limit of $15,000 with her father’s insurer, Nationwide Assurance Company.    After Nationwide denied the claim and Coates sued Nationwide for both bad faith and breach of contract.

The case centered on one issue: what state’s law applied? While the accident occurred in Pennsylvania, the Nationwide insurance policy was issued in Delaware and Coate’s father resided in Delaware.  Moreover, Coate’s father agreed to comply with Delaware’s motor vehicle statutes upon purchasing the policy.  This question was crucial because if Pennsylvania law applied, Coates would be entitled to $15,000, but if Delaware law applied, Coates would not be entitled to anything.  Pennsylvania case law is settled: (a) when the issue is coverage under an insurance policy, the case is a contract matter, and (b) when the issue involves an insurance policy, courts consider each state’s contacts with the insurance policy at issue and not the underlying tort.

In Coates, the court arrived at its answer quite easily given that the only contacts the insured and insurer had with Pennsylvania was the underlying car accident giving rise to the underinsured claim.  In its analysis, the court relied on the expectations of both the insurer and insured, stating that Nationwide had the expectation to be bound by Delaware law in its dealings with Coate’s father, and that Coate’s father should have expected Delaware law to apply.  Lastly, the court stated that the fact that the accident occurred in Pennsylvania was just “happenstance” and that no matter where the car was driven, Delaware ultimately had the most relevant contacts with the insurance policy.  Accordingly, the court ruled in favor of Nationwide and Coates was unable to recover any underinsured motorist benefits.

Thanks for Erin Connolly for her contribution to this post.  If you have any questions or comments, please contact Paul at .

Deliberations Continue in Fan Attack at Dodger Game

Posted on by

Jurors in Los Angeles County resumed deliberations Monday to decide whether the Los Angeles Dodgers are civilly responsible for injuries caused to Bryan Stow on opening day in 2011. 

 

Shaw, a San Francisco Giants fan, attended the Giants-Dodgers game in Los Angeles, and was assaulted by multiple Dodgers fans, two of whom pleaded guilty to criminal charges after the assault.  Stow’s attorneys contend that the Dodgers’ security was inadequate, and that a “culture of violence” at Dodgers-Giants games proximately caused Shaw’s injuries.  Interestingly, Dodgers’ (former) owner Frank McCourt was involved in a very public and unpleasant divorce at the time, and has been accused of using Dodgers’ funds for personal expenses around the time of this assault – i.e., not using those funds for proper security.

 

Dodgers’ attorneys content that Stow was himself intoxicated (his BAC was .18, more than double the legal driving limit) and also, that the fault here lies with the criminals who committed the assault, not with the Dodgers.

 

Stow’s injuries are significant.   He is unable to walk without assistance, requires diapers on a daily basis, suffered various internal injuries, and will never be able to work again.  Of interest to those of us in litigation world is the quantum of future damages.  At the time of the accident, Stow, 45, was employed as a paramedic earning $114,000 per year.  His attorneys contend that future lost earnings, with annual increases through age 69, together with future life care, entitles plaintiff to $37 million in damages.

 

It will be interesting to see how the jury attributes fault here, and from there, how they comprehend future damages.  If the Dodgers’ lax security is deemed a proximate cause of the assault and injury to Stow, future pain and suffering, lost earnings and future medical care could be difficult to dispute, based upon the medical testimony given at trial.  

 

Should the jury fail to reach a verdict (they have been deliberating for six days already) the judge will be forced to declare a mistrial, and the entire trial will start over.  There are no do-overs in baseball, but there could be one here.

Coverage Denial is as Clear as Glass (PA)

Posted on by

In US Fire v. Kelman, the Western District of Pennsylvania determined that Continental Casualty Company’s denial of a glass manufacturer’s insurance claim for a furnace accident was reasonable.  Pointing to Continental Casualty’s clear denial letter, the court held that the bad faith claims against the insurer fail.

Kelman Bottles LLC manufactures glass containers for the food industry.  In March 2011, an accident occurred involving one of the furnaces Kelman used to melt glass.  A leak in the furnace caused molten glass to escape, damaging both the furnace and other property in the facility.   While Kelman filed claims with its insurer, Continental Casualty, to obtain coverage for the damaged property, Continental subsequently denied Kelman’s request for coverage.  Continental’s denial letter explained that their investigation determined that the leak in the furnace “is not uncommon,” and was not caused by operator error or a failure in any component of the furnace.  Therefore, the accident did not meet the requirements for a “breakdown” that would be entitled to coverage under the insurance policy.

Alternatively, Kelman insisted that the leak in the furnace was “sudden and accidental,” thus satisfying the conditions for coverage.  Furthermore, Kelman alleged that Continental’s basis for denying insurance benefits was “unclear” and possibly also “intentionally vague.”  Accordingly, Kelman claimed that Continental Casualty’s denial of coverage violated Pennsylvania’s bad faith statute.

The court noted that recovery on a bad faith claim would require Kelman to provide clear and convincing evidence that Continental Casualty did not have a reasonable basis for denying coverage.  But the court determined that Continental Casualty’s denial letter was appropriately clear, as it discussed the findings and conclusions of its investigation, a recitation of relevant policy language, and a step-by-step analysis of its decision.  Therefore, the court concluded that Kelman failed to meet the clear and convincing standard to establish unclear or intentionally vague reasons for denial.

Further, the court pointed to instances of similar leaks referenced in the investigative report Continental Casualty obtained, strengthening the reasonableness of the insurance company’s denial of benefits.  The report contradicted Kelman’s claim that the incident was not a routine occurrence, since furnace leaks were described as uncommon.  Concluding that there are no genuine issues of material fact regarding Continental Casualty’s reasonable basis to deny coverage to Kelman, the court held that Kelman failed meet the first prong of the bad faith test.

Thanks to Nicole Pedi for her contribution to this post.  If you have any questions, please email Paul at .

Court Finds Good Faith Requirement Even In Mandatory Settlement Conference (PA)

Posted on by

While it is axiomatic that good faith is the polestar of the transactional world, it is often times less evident whether the same obligation extends to adverse parties involved in litigation.  In particular, the question can arise where adverse parties submit to some form of alternative dispute resolution – mediation, settlement conference or otherwise – that depends heavily on good faith negotiations to resolve the dispute.  For at least one court in Pennsylvania, however, it appears that the good faith is an immutable requirement in ADR even where the parties are, by their very nature, adverse to one another.

In Grigoryants v. Safety-Kleen, United States Magistrate Judge Maureen Kelly entertained sanctions against a defendant whose corporate policy was to entertain settlement only after the close of discovery.  Specifically, the Grigoryants litigation involved husband-and-wife plaintiffs who sued Safety Kleen after the husband was exposed to one of that company’s chemicals, and later contracted myelofibrosis.  Following initial discovery, the United States District Court for the Western District of Pennsylvania ordered the parties to appear for mediation and instructed both sides to produce representatives with full and unqualified settlement authority.  In anticipation of the mediation, both parties engaged in pre-mediation conference calls with the mediating judge to discuss their respective positions on liability and damages, and also submitted pre-mediation memorandum outlining the same.  Despite this preparation, however, the mediation was ultimately unsuccessful and prompted the plaintiffs to move for sanctions against Safety-Kleen after learning that the corporation had an internal policy of not discussing potential settlement before the filing of dispositive motions.

In ultimately imposing sanctions against Safety-Kleen, Judge Kelly noted that good faith is a necessary element of court-mandated mediation.  Further, Judge Kelly found that certain of Safety-Kleen’s actions constituted bad faith insofar as they undermined the opportunity to alternatively resolve the litigation.  Chief among Safety-Kleen’s bad faith actions was the fact that it knew of its unwillingness to engage in settlement negotiations prior to the close of discovery, but neglected to make that fact known to the Court.  In fact, Judge Kelly explained that the concealment of Safety-Kleen’s position with respect to settlement, not the failure to settle, itself, was the core of its sanctionable conduct.  Consequently, Judge Kelly ordered Safety-Kleen to restore the plaintiff to their pre-mediation condition by paying costs, expenses and attorneys-fees incurred.

To our mind, the decision in Grigoryants is both cautionary and encouraging.  On the one hand, there is no doubt that Pennsylvania’s state and federal courts consider alternative dispute resolution an indispensable cog in the litigation process, and, as a result, require transparency with the mediator in respect of settlement positions.  On the other, however, it appears that Pennsylvania courts do recognize the thin line between requiring good-faith and simply fruitless settlement negotiations.   Simply put, candor with the court and adversaries is the preferable – and safer- way to proceed   

Thanks to Adam Gomez for his contribution to this post.   If you have any questions, please email Paul at .