Author Archives: Paul F. Clark

Safety First: Pennsylvania Schools May Be Responsible for Students’ Criminal Acts

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Recently, the Pennsylvania Superior Court held that a private college cannot escape civil liability for injuries caused by the criminal acts of its students where the institution voluntary assumed a “program of safety” that the community came to rely upon.

Specifically, in the case of Murray v. Albright College, student Patrick Murray was assaulted in the doorway of his dorm room after an authorized search of his floor mates’ dorm room revealed a loaded handgun, approximately one pound of marijuana, and surveillance equipment. Shortly after the search, which was conducted by Albright public safety officers, Murray began to receive threats from unknown individuals who suggested that he had “snitched” on his fellow students. The threats quickly turned to action when two unauthorized males were granted access to Patrick’s dorm by his floor mates, and brutally beat Murray.

In the lawsuit that followed against Albright, Murray and his parents contended that the college was liable for the criminal acts of its students to the extent that it failed to warn or prevent his attack. The trial court, however, disagreed with the Murrays’ contentions, and granted summary judgment to Albright on the basis that it could not reasonably foresee the criminal acts of its students.

On appeal, however, the Superior Court compared Murray’s residence on Albright’s campus to that of the relationship between landlord and tenant. Specifically, the Superior Court explained that, under Pennsylvania law, a landlord is not required to protect a tenant from criminal activity unless the landlord provides a “program of safety.” According to the Court, once a “program of safety” is deemed to exist, a landlord has voluntary assumed the duty to protect its tenant and is therefore exposed to liability for the criminal acts of third parties. Applied in the context of Murray’s attack, the Superior Court concluded that Albright’s student handbook required the college to report criminal violations such as the possession of marijuana to local authorities for prosecution. Given that Albright failed to adhere to this policy and did not involve the local authorities, the Court ultimately reversed, citing that a genuine issue of material fact existed as to whether the college’s omissions may have allowed the attacks to occur.

All told, the opinion in Murray speaks to the liability of landlords, generally, and educators, specifically, in respect of the criminal acts of third parties. As a result, both groups should remain mindful that, at least in Pennsylvania, the provision of additional safety measures may serve to increase, rather than detract from, a party’s ultimate exposure. As the saying goes, “no good deed goes unpunished.”

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

If You Don’t Want to Reveal the Records, You Have to Withdraw the Claim (NY)

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The courts are always cautious when it comes to the disclosure of a party’s mental health records. A good example is the recent case of Alford v. City of New York, where plaintiff suffered injuries after he fell seven feet down an elevator shaft in a building owned by the New York City Housing Authority. Plaintiff claimed physical injuries to his knee and back, as well as post-traumatic stress disorder and other mental and psychological injuries. Although claiming mental and psychological trauma, plaintiff initially refused to disclose medical records regarding his prior treatment for substance and alcohol abuse. Plaintiff moved the lower court for a protective order precluding disclosure of these records and precluding defendants from using any of these medical records already obtained at trial. Importantly, within the same motion, plaintiff also sought leave to withdraw his claims for PTSD and mental and psychological injuries. Defendants cross-moved to compel disclosure of the records.

The lower court held, and the First Department affirmed, that there is no dispute that plaintiff’s mental condition at the time of the accident was relevant in light of plaintiff’s original claim of psychological injury. However, once plaintiff asked to withdraw his claims for mental and psychological injuries, the records were no longer relevant so the court granted plaintiff’s motion. The First Deparment held that as soon as plaintiff’s mental condition was withdrawn from the case, plaintiff’s right to confidentiality of his mental health records trumped the interests of justice in disclosing them. In addition, the court held that plaintiff’s claim for loss of enjoyment of life did not warrant disclosure of these records as that claim relates only to his physical injuries.

A plaintiff will not be forced to open up his life entirely just because he commenced a suit. However, each claim a plaintiff chooses to bring must be proven and a defendant has a right to fully investigate and defend against each one. If the plaintiff does not want to expose himself entirely, he cannot benefit from such claims and they should be withdrawn, as was done in this case. We query how the trial court will deal with a claim that plaintiff can no longer work based solely on his physical injury if, in actuality, his psychological problems have contributed to his loss of employment.

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

Nonparty Discovery Easier to Obtain (NY)

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Procedural skirmishes can affect the outcome of litigation. For example, if a plaintiff can deprive a defendant of access to proof from a nonparty witness whether within or outside the state, the scales may tip ever so slightly in favor of the plaintiff in a closely contested lawsuit.

While not a  “sexy” issue, the New York Court of Appeals in Matter of John Kapon v. William I. Koch, resolved a conflict in the Appellate Division focusing on the standard and burdens when subpoenaing a nonparty for testimony under New York law. New York divides its Appellate Division into four departments based on geography. Two of the departments held that a litigant could not obtain nonparty discovery unless the requested discovery was relevant to the prosecution or defense of an action. In contrast, the two other departments held that the party issuing the subpoena must show that the disclosure could not be obtained from sources other than the nonparty, a far greater threshold to obtaining often critical discovery.

In Kapon, the Court of Appeals resolved the conflict within the Appellate Division and adopted the more liberal interpretation of nonparty discovery: “as long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” Further, the Court explained in detail the burdens imposed of each party. The party issuing the subpoena must only satisfy a “minimal burden” of stating the reason the disclosure is sought either on the face of the subpoena or the notice accompanying it. Once this showing is made, a more onerous burden is imposed on a party seeking to quash the subpoena who must show that the discovery sought is “utterly irrelevant” or that the “futility of the process to uncover anything legitimate is inevitable or obvious.”

Nonparty discovery should be much easier in New York litigation whether sought within or outside the Empire State. As long as the proponent of the subpoena can articulate the relevance of the information sought, the subpoena should be upheld and the information produced.

If you can any questions about this post, please email Paul at .

A [Clear] Picture Is Worth A Thousand Words (NY)

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The defendants in Deviva v. Bourbon Street Fine Foods & Spirit, et al., 2014 NY Slip Op 02255 (2d Dept. 2014) found this old adage to unfortunately still ring true. In Deviva, the plaintiff allegedly tripped, fell, and was hurt. One defendant moved for summary judgment, alleging the defect was trivial in nature. The Court granted this motion and, upon searching the record, also awarded summary judgment to the other defendants.

In moving for summary judgment, parties may submit photographs which accurately depict the condition of the area of the accident site to establish whether a defect is trivial and therefore not actionable. The Court uses these photographs to help determine if the defect is trivial, typically focusing on the width, elevation, irregularity and appearance of the alleged defect. In taking testimony before trial, the defense should request the plaintiff to properly identify and mark these photographs as demonstrating the conditions of the site of the alleged accident.

In Deviva, the Second Department found the poor quality of the only photograph acknowledged by plaintiff to accurately depict the condition of the area to be insufficient evidence to establish as a matter of law that the alleged defect was trivial, so it reversed the trial court’s decision. The other photographs the moving defendant attached (from its investigator) were not acknowledged by the plaintiff to accurately depict the condition of the area, so they also were insufficient to establish as a matter of law that the alleged defect was trivial.

We learn from Deviva that moving for summary judgment on the defense of trivial defect based on photographic evidence takes three entities working in unison. The defendant’s  investigator (if utilized) must take clear photographs of the alleged trivial defect, the defense attorney must mark the photographs at plaintiff’s deposition, and the plaintiff must identify these photographs as fairly and accurately representing the condition of the defect. As masterful a writer as an attorney may be, “a [clear] picture is worth a thousand words” when moving for summary judgment based on a trivial defect.

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

Controversial K2 Decision Reversed In Important Coverage Case (NY)

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After rattling the framework of well-established New York insurance law, the Court of Appeals conceded that it was wrong and reversed its prior decision in K2-II Investment Group, LLC v. American Guarantee & Liability Insurance Company.

In its earlier K2-I decision, the court held that an insurer waives any policy exclusions if the duty to defend is breached. The response to K2-I was immediate: commentators criticized the decision, noting that the Court of Appeals did not mention, let alone analyze, its prior decision of Servidone Construction Corp. v. Security Insurance Co., which came to the opposite conclusion. In September 2013, the Court granted a motion to reargue K2-I, signaling some second thoughts about its prior ruling.

In a 4-2 decision, the Court framed the issue as follows: “In short, to decide this case we must either overrule Servidone or follow it. We choose to follow it.” It stressed that “when our Court decides a question of insurance law, insurers and insureds alike should ordinarily be entitled to assume that the decision will remain unchanged unless or until the Legislature decides otherwise.” In short, the Court acknowledged the uncertainty that K2-I had caused, affirmed the value of predictability in the law, and took the bold step of reversing itself.

The lesson learned is that Servidone remains the controlling case in New York on the consequences of an insurer’s breach of its duty to defend. When an insurer breaches its contractual duty to defend its insured, the insurer is not automatically barred from relying on policy exclusions to dispute any obligation to indemnify the policyholder.

For more information on this post, please contact Paul at .

Court Finds that Rules Are Meant to Be Broken (PA)

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Recently, a three-judge panel of the Superior Court reaffirmed the notion that Pennsylvania judges should accommodate the plaintiff’s procedural misgivings when doing so would promote fairness and justice.

In the case of Jones v. Mercy Suburban Hospital, the plaintiff commenced suit as administratrix of her mother’s estate for wrongful death and survival as a result of medical malpractice.  Following years of protracted discovery and motion practice, trial in the matter was ultimately delayed due to an illness affecting plaintiff’s counsel.  Less than a month later, the plaintiff again moved the trial court to delay the proceeding, citing her own inability to appear due to illness.  The trial court, however, denied plaintiff’s motion to adjourn, and instead dismissed the case in its entirety for failure to prepare for trial.

Recognizing that the trial court’s sua sponte decision completely disposed the case, plaintiff’s counsel took direct appeal to the Pennsylvania Superior Court.  Arguing before the three-judge panel, plaintiff’s counsel contended that trial court abused its discretion in coarsely denying the petition for continuance and dismissing the case.  Unsurprisingly, the Superior Court agreed, and reaffirmed the accepted belief that Pennsylvania’s procedural rules must be interpreted to promote adjudication on the merits.  More specifically,  the  Superior Court announced unambiguously that Pennsylvania judges may disregard any error or defect in procedure provided the same does not result in substantial prejudice to the other parties.  Further, the appellate panel strongly condemned the trial court’s decision to dismiss the case as an improper exercise of the courts’ most severe sanction, and reminded judges throughout the Commonwealth that their decisions must be guided towards a “fair and just” disposition of the matter.

While Jones is a run-of-the-mill procedural appeal, the Superior Court’s approach reinforces the concept that Pennsylvania’s procedural rules are not intended to act as technicalities that undermine the merits of the case.  In fact, the opinion in Jones tells quite a different tale that is well known to most Pennsylvania lawyers: there is an exception to every rule, especially for the plaintiff. Let’s hope that the courts demonstrate the same magnanimous leniency and sense of justice when a defense lawyer becomes ill.

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

Just Because There’s an Expert, Doesn’t Mean There’s a Case (NY)

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In Kalish v. HEI Hospitality, LLC, plaintiff’s complaint was dismissed as defendants made a prima facie showing that plaintiff’s accident was not attributable to any defect.  Plaintiff was injured when he slipped and fell on the bath mat provided by the hotel in his room’s bathroom.   He claimed that the hotel failed to provide non-skid backing to its bath mat which created a dangerous condition.  In support of his claim, plaintiff submitted an expert affidavit that stated that the bath mat was merely a cotton towel and was therefore defective.  The expert cited the industry standard, which he claimed requires mats to be fixed in place or provide slip resistant backing.

The trial court granted the hotel’s motion for summary judgment dismissing plaintiff’s claims and the plaintiff appealed.  The First Department affirmed, holding that plaintiff’s expert’s affidavit was purely speculative, pointing out that the expert never actually examined the floor or the bath mat in question.  Plaintiff’s expert relied on a photograph and did not make any references to his methodology to determine that the mat was defective.  Further, the industry standard cited was not even applicable to bathrooms.  The court held that there was no evidence of a defect in the bath mat and the complaint was properly dismissed.

Although on the surface an expert’s affidavit may appear to create a question of fact, it is always worth examining further how they actually arrived at their conclusions and pointing out the lack of objective support for their opinions.

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

UM/UIM Step-Down Provisions May Not Limit Coverage to Employees (NJ)

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Step-down provisions in insurance policies are not uncommon. These limitations allow an insurer to decrease the policy limits for certain insureds or risks. For example, a commercial general liability policy may have a limit of liability of $1,000,000, which is decreased to $250,000 for any claims arising out of sexual abuse or molestation. Other policies have a lesser limit of liability for suits involving family members due to the danger of collusion between the parties.

In the past, New Jersey permitted a commercial motor vehicle liability policy to provide less uninsured (UM) or underinsured (UIM) motorist coverage for anyone other than the “named insured” on the policy. In 2007, the New Jersey legislature enacted legislation that prohibited commercial auto policies from enforcing step-down provisions that limited UM/UIM benefits available to employees of the named insured. The statute was made effective on September 10, 2007.

In James, plaintiff was injured in a car accident before the enactment of the statute. After settling with the adverse driver for the limit of his insurance ($100,000), James demanded UIM coverage under his employer’s commercial auto policy. Of note, his employer’s policy had a UIM limit of $500,000, but its step-down provision reduced UIM benefits available to employees at the limit contained in the employee’s own policy or, in this case, $50,000.

James argued that the new legislation should be given retroactive application, which would void the step-down provision in his employer’s commercial auto policy and make an additional $400,000 available to him. Rejecting his argument, the New Jersey Supreme Court held that the law ordinarily favors prospective application of a new statute. Further, the statute’s plain language did not evidence any explicit intent to apply the law retroactively to accidents that occurred before its effective date. Thus, the court ruled that the statute in question only reformed policies that were in existence on the effective date of the statute but had no application to accidents that occurred earlier.

In summary, a commercial auto insurer must provide UM/UIM coverage to an employee on the same basis as provided to the named insured (employer) regardless of its policy language. Given the effective date of the remedial legislation addressing UM/UIM limits in a commercial auto policy, this key policy requirement applies to all motor vehicle accidents on or after September 10, 2007.

For more information about this post, please email Paul at 

No Cover For Landlord in Steamy Radiator Case (NY)

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When a landlord tries to fulfill its duty to maintain its premises in a reasonably safe condition, it is not enough to simply rely on what a court may have said a few years earlier.  In Nina W. v. NDI King Ltd. P’ship, the plaintiff was a five year old girl who suffers from cerebral palsy and intellectual disability, condition formerly called mental retardation.  On her behalf, her mother filed suit in the Bronx Supreme Court, alleging that while the girl was sleeping in a bottom bunk bed, she suffered severe burns after her face and hands came into prolonged contact with an uncovered baseboard radiator.

The defendant landlord moved for summary judgment, relying on Rivera v. Nelson Realty, a 2006 Court of Appeals case which held that “the landlord of a home where children live does not have a common-law or other duty to provide or install radiator covers,” even in situations where the tenant requested one.  The Bronx Supreme Court granted the landlords motion, in reliance on Rivera; however, the First Department reversed.

The Court noted that, unlike the freestanding radiator in Rivera, the radiator in Nina W. was a baseboard heater which “came with covers” that were removed by the landlord because they were rusty, and never replaced.   In addition, the plaintiff in Nina W. was especially diligent in that she kept in contact with the New York City Department of Housing Preservation, which led to violations being issued.

As Of Interest has noted before, courts sometimes hand down surprising victories for property owners and other defendants.  Sometimes those victories, like the defendant’s in Rivera, appear to be the proverbial “slam dunk” in hindsight.  But Nina W. serves as a useful reminder that no two cases are alike, and no matter how sweeping a prior decision appears on the surface, it is no safe harbor for property owners to be complacent.  If anything in a tenant’s apartment, especially something that could be dangerous, does not look like it is supposed to, a landlord would be well advised to spend the penny on a repair to avoid spending a pound (and a lot more than that) in litigation.

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

“Borrowed Employee” Status Remains Question of Fact in Pennsylvania

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Recently, the Pennsylvania Superior Court reiterated that the employment status of a “loaned” laborer is a question of fact with respect to the applicability of the workers compensation bar.

In the case of Shamis v. Moon, the plaintiff was the direct employee of a general contractor charged with overseeing the expansion of the Pennsylvania Convention Center in Philadelphia.  More specifically, the plaintiff alleged in his complaint that he was “loaned” to a demolition subcontractor working on the project, and sustained severe injuries when an employee of the same ran him over with a dump truck.  In light of his injuries, the plaintiff filed a workers’ compensation claim against the general contractor, and later sued the subcontractor and its employee in the Pennsylvania Court of Common Pleas.

In responding to the plaintiff’s allegations, the subcontractor eventually moved for summary judgment and asserted that it was also the plaintiff’s employer for the purposes of the workers’ compensation bar under the “borrowed employee” doctrine.  To this end, the subcontractor presented evidence from the record indicating that it, not the general contractor, actually supervised the expansion and directed the plaintiff in his duties.  Perhaps surprisingly, the Philadelphia trial court agreed and granted summary judgment on the basis of the workers’ compensation bar.

On appeal to the Pennsylvania Superior Court, the plaintiff argued that the trial court erred as a matter of law when it applied the “borrowed employee” doctrine.  Specifically, the plaintiff argued that Pennsylvania law recognizes the doctrine only when there is sufficient evidence that the employee “passed under the [putative] employer’s right of control with regard to the work to be done and the manner performing it.”  According to the plaintiff, however, the record in Shamis was conflicted in respect of the general contractor’s right of control vis-à-vis the defendant subcontractor.  In particular, the plaintiff noted to the Superior Court that although he took direction from the subcontractor, the general contractor maintained a contractual right and obligation of supervision that called into question his employment status for purposes of the workers’ compensation bar.  In ultimately endorsing the plaintiff’s position, the Superior Court agreed that questions regarding “borrowed employees” are intrinsically fact sensitive and rely heavily on factors that should be considered by a jury.  As a result, the Superior Court reversed and remanded the matter to the court below for further discovery and trial.

Shamis is a reminder that while the “borrowed employee” doctrine may serve as a viable bar to workplace injury claims in Pennsylvania, the defense requires a significant and detailed factual basis in order to succeed.

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