Holiday Party Goers and Party Hosts Beware (NY)

Social hosts and party rental companies need to be extra cautious in connection with the safety of their premises in order to avoid injuries by festive party goers. In Poliziani v. Culinary Institute of America, the appellate court reversed the order of the lower court which granted summary judgment to the defendant Culinary Institute of America dismissing the plaintiff’s personal injury complaint.

Here, plaintiffs were attending an event hosted by the Culinary Institute of America. After dinner, the plaintiff began dancing on a temporary dance floor. While dancing, the plaintiff fell, after she slipped on the beveled edge between the dance floor and the adjoining rug strikign her her head, injuring her right wrist and losing consciousness. Plaintiff subsequently commenced this action against the defendant and the company that provided the tent rental who also supplied the temporary dance floor. The defendants argued that they were entitled to summary judgment on the grounds that the beveled edge was not defective or hazardous, and constituted a nonactionable “trivial” defect. The Supreme Court granted this motion and the plaintiff now appealled.

The appellate court held that whether a dangerous or defective condition exists on the property of another so as to create an actionable issue of liability depends on the peculiar facts and circumstances of each individual case. A defendant who is seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect do not increase the risks posed by the equipment. The Court of Appeals held that even a physically small defect may be actionable, like a jagged edge or irregular rough surface, especially in situations where the defect is located where people are distracted from easily observing it (like in this case where people were not expected to look down at their feet). Thus, in reversing the trial court’s order of summary judgment in favor of the defendants, the appellate court concluded that there are triable issues of facts as to whether there was a dangerous condition created even by a small defect. As such, party goers and party hosts should remain diligent, as this case sets a clear warning that even small, relatively insignficant defects can give rise to liability.

Thanks to Nicole Lyalin for her contribution to this post. Please email Vito A. Pinto with any questions.

Slipped not Spoiled – Appellate Division Overturns Spoliation Charge in Slip and Fall Action (NY)

In Sarris v Fairway Group Plainview LLC, plaintiff was allegedly injured when she slipped and fell on ice in a parking lot outside the store operated by defendant.  Her counsel sent a demand to defendant to preserve “any and all video footage depicting the location of my client’s accident” and the Supreme Court ordered them to “preserve such footage of the incident, including the 24 hours preceding same”.

The store had four separate security cameras.  The store’s security manager testified that one camera showed plaintiff’s accident.  Footage from that camera, including the ten hours preceding the accident, were preserved.  The footage from the other cameras was automatically deleted after 30 days, the normal protocol for the cameras.

Plaintiff moved for spoliation of evidence against defendants for deleting the other videos.  The Supreme Court partially granted the motion partially, allowing for a negative inference charge to be given at trial.  The Appellate Division ruled that the Supreme Court improvidently exercised its discretion and overturned the ruling.  The Court held that the defendant was not on notice to preserve the other footage because it was only ordered to preserve the footage of the actual accident.

The case provides a valuable lesson for all litigants.  First, direct your clients to save as much as possible, if not for anything else to avoid unnecessary discovery litigation.  Second, when making requests for discovery, be as specific as you are able to be.  If you want all the security footage a party has, say that, don’t limit it to the accident where it occurred.

Thanks to Christopher Gioia for his contribution to this post. Please email Vito A. Pinto with any questions.

To Redact or Not to Redact? (PA)

In December 2015, Paige Barnard (“Barnard”) was involved in an automobile accident. At the time of the accident, she was insured by Liberty Mutual Insurance Corporation (“Liberty”) under her parents’ auto insurance policy. After receiving first party medical and income loss benefits for some time, Liberty ceased providing the benefits, as it determined, through a peer review organization, that Barnard’s treatment was no longer appropriate, necessary or reasonable.   Consequently, Barnard brought claims for, inter alia, statutory bad faith against Liberty.

After initial discovery was exchanged, Barnard served interrogatories and request for production of documents on Liberty.  After receiving Liberty’s responses, Barnard objected to, inter alia, Liberty’s redactions and privilege log, asserting she was entitled to the entirety of the documents’ contents. Liberty objected to the production of the documents, arguing the information and documents requested were privileged, not relevant to the instant matter, covered by attorney-client and work-product privileges, prepared in anticipation of litigation, and/or outside the scope of Federal Rule of Civil Procedure 26.  Accordingly, in Barnard v Liberty Mutual Insurance Corp., the U.S. District Court for the Middle District of Pennsylvania was tasked with determining whether Barnard was entitled to the requested documents and answers to her interrogatories.   Before making its determination, the Court directed Liberty to produce its documents alleged to contain privileged information to the Court for in camera inspection.

In pertinent part, the Court focused on whether Liberty was required to produce a copy of the peer review section of Liberty’s policy manual, copies of the policies and procedures that govern the way Liberty’s employees handle inquiries, and the entirety of its claim files, including logs and notes.

First, the Court held that Liberty was required to produce the peer review portion of its policy manual and the employee policy or procedures for handling inquiries.  In doing so, the Court explained that Liberty’s methods for handling its peer review process and policy and procedures governing the way Liberty’s employees evaluate inquiries about insurance policies were relevant to Barnard’s bad faith claim, as a departure from established procedure “is probative evidence” for Barnard to demonstrate Liberty acted in bad faith.  Nevertheless, the Court accepted Liberty’s contention that the foregoing documents contained confidential information, such as trade secrets and propriety information – accordingly, the Court ordered Barnard to keep the documents confidential.

Second, in regard to the question of whether Liberty was required to produce the entirety of its claim files, including logs and notes, the Court relied on Federal Rule of Civil Procedure 26(b)(3)(A), which shields from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent”.   In addition, the Court noted that it is generally accepted in the Third Circuit that insurers cannot reasonably argue that claim files are accumulated in anticipation of litigation, particularly where insurers have a duty to investigate and make decisions with respect to claims by their insureds.  With this foundation, the Court held: (1) Liberty could have reasonably anticipated litigation once it received notice of Barnard’s dissatisfaction with the peer review process; (2) Liberty improperly redacted the claim status reports, as they were not mental impressions, conclusions, opinions, or trial strategies; and (3) Liberty’s claim notes made after Liberty learned of Barnard’s dissatisfaction were properly redacted as work product, but entries made before such notification were improperly redacted since they related to Barnard’s underinsured motorist claim and first-party benefits.

Finally, the Court held that Liberty was permitted to redact its mental impressions, conclusions, reserves, and opinions relating to the value or merit of the claim or defense in its financial documents.  In doing so, the Court reasoned that because Barnard’s bad faith claim focused on the denial of coverage (i.e., Liberty’s review process was biased and unfair) – as opposed to the value of the claim or Barnard’s estimate of liability – Liberty was not required to produce unredacted versions of its financial documents, such as information related to its reserves.

In sum, this discovery ruling illuminates the distinction between discoverable and non-discoverable information in the context of statutory bad faith claims against insurers.

Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions.

Unlisted Vehicle Does Not Require Underinsured Policy Coverage (NJ)

The Appellate Division, in Katchen v. Government Employees Insurance Co., re-affirmed the need for clients to be proactive with personal insurance policies and attorneys to thoroughly review all client and carrier documentation at the start of every suit. In Katchen, the plaintiff filed for underinsured motorist benefits after being injured in a 2015 motorcycle accident with an underinsured driver whose policy had a 25,000 policy limit. Litigation ensued after GEICO denied coverage.

GEICO’s argument was clear: although Katchen owned and operated the motorcycle at the time of the incident, it was not specifically listed on his insurance policy. Since exclusions in the body of the policy specifically excluded underinsured motorist coverage involving a motor vehicle “owned by an insured and not described in the declarations,” GEICO argued the policy had a clear and easily understood exclusion that applied to the facts of the case.

Katchen cunningly countered by directing the court’s attention to the declarations page, which stated GEICO would “pay damages for bodily injury and property damage caused by an accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle arising out of the ownership, maintenance, or use of that vehicle.” Since the declarations page did not list any exclusions, according to Katchen, the insurance coverage followed the insured individual rather than the vehicle.

The majority of a split Appellate Division panel sided with GEICO, concluding the policy language, rather than the declaration page, controlled. According to the court, “the fact that the [vehicle] exclusion is not mentioned on the declaration sheet does not bar its enforcement,” as it does not automatically render the policy ambiguous. To rule differently, as the trial court did, would “eviscerate the rule that a clause should be read in the context of the entire policy” and needlessly complicate already-complex policies.

Judge Karen Suter’s strong dissent, arguing that coverage follows an insured rather than a vehicle identified in the policy, may offer a glimpse into how future courts may interpret similar exclusions when confronted with similar facts. Since the case was a published decision, however, it carries a weight that will hopefully influence other courts interpreting similar exclusions in other policies.

Thank you to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.


Wade Clark Mulcahy’s New Jersey office led the way in Union County in participating in the annual Vincent J. Apruzzese High School Mock Trial Program which is sponsored by the New Jersey Bar Foundation.  The Mock Trial Program provides high school students in the state of New Jersey with an opportunity to develop their advocacy skills and to experience what it is really like to be a trial lawyer.  Teams are comprised of five individuals from each participating high school.  Two students act as attorneys while three students act as fact and expert witnesses.

Trials are conducted before experienced litigators who act as judges along with a student-comprised jury and often last three hours.  In order to make the experience more realistic, the trials are conducted in actual courtrooms in the Union County Courthouse so students are able to feel what is like to try a case in a courtroom.  The final round in the County is judged by a panel of sitting New Jersey Superior Court Law Division judges.  The ultimate champion from each County then participates in a statewide contest with the winner of the statewide contest then proceeding to the national competition to compete against winners from the other 49 states and the District of Columbia.

WCM’s New Jersey office had four of its attorneys participating as judges (Paul Clark, Tony Pinto, Mike Noblett and Brent Bouma) and was recognized by the state Bar Foundation for having the largest contingency of volunteer judges than any other firm in the County.   In their role as judges, WCM attorneys not only adjudicated the trial but also provided detailed feedback to the teams regarding their performances and provided our own insight into actual trials.  In other years, WCM attorneys have also participated in the program as team coaches for high schools, volunteering our time to meet with competing teams twice a week to assist with preparing the teams for their competition.  We were happy to participate in this worthy cause as a way to give back to our local community and to share our zeal and enthusiasm for trial advocacy.

Intruder Alert: Blame the Landlord (NY)

The decedent-plaintiff was delivering meals to the elderly at a New York Housing Authority-owned building.  He was in the building’s lobby when an unidentified assailant entered the building and fatally shot the plaintiff.  The Housing Authority moved for summary judgment, arguing that the building’s entrance door lock was functional at the time of the shooting.  The Supreme Court granted the motion and dismissed the plaintiff’s complaint.

On appeal, the Second Department clarified that a plaintiff could recover against a landlord when inadequate security is alleged only if the injury was caused by an intruder (not a tenant or a guest of a tenant) and only if the assailant gained access to the premises through a negligently maintained entrance.  Further, there must be a causal link between the landlord’s negligence and the attack.  In reviewing the record, the Second Department held that, while the front door lock was working at the time of the incident, there was still an issue of fact as to whether the accident was caused by a negligently maintained entrance.  In other words, given that the assailant entered through the front door, it was up to a jury to determine whether the landlord failed to provide proper protection to the plaintiff given that he somehow made it inside the building.

This Aminova, etc., et al. v. New York City Housing Authority decision calls into question whether a landlord has to go above and beyond when it comes to maintaining a safe premises.  Specifically, this decision seems to imply that a fully functioning door lock, which may have been left open/unlocked by a tenant, might not be enough security to protect a landlord from facing liability for injuries caused by non-tenants.  It also calls into question whether a landlord’s possible liability exposure is contingent on the landlord having notice of prior instances where intruders have entered a building or whether such prior breaches of the security system are not necessary in order to find liability against the landlord.

Thanks to Georgia Coats for her contribution to this post. Please email Vito A. Pinto with any questions.

When a Verdict’s Too Good to be True (NY)

A recent Second Department decision in Avissato v McDaniel reminds defense practitioners the best time to settle a case may in fact be after an apparent victory.  The underlying fact pattern is a common one:  plaintiff was stopped at a red light when defendant driver rear-ended plaintiff’s vehicle.  Unsurprisingly, plaintiff prevailed on a summary judgment as to liability and the case proceeded to a trial as to damages.  2019 NY Slip Op 00084 (2d Dep’t. 2019).

The jury found the accident was the proximate cause of plaintiff’s injuries and resulted in a permanent consequential limitation of use of a body organ or member as a result of the accident—in other words, they found plaintiff’s injuries qualified as a serious injury under the Insurance Law, and that plaintiff would have symptoms moving forward into the future.

However, the jury award was for $12,500 for past pain and suffering and $12,500 for past medical expenses with no award for future damages.  Although plaintiff’s motion to set aside the verdict as against the weight of the evidence was initially denied, on appeal, the Second Department reversed and remanded for a new trial on the issues of damages for past and future pain and suffering.  The Second Department reasoned the verdict was inconsistent in awarding no damages for future pain, given their conclusion plaintiff had sustained a permanent injury, and that the award for past damages was too low.

We do not know the details of any settlement negotiations.  However, one suspects defendants were pleased with the jury verdict, despite the obvious inconsistencies it contained.  Instead of reaching an economical settlement at that point with the leverage of the verdict in their pocket, defendants are now faced with the costs of a second trial and opposing plaintiff’s successful appeal.  Even in a moment of victory, defendants should evaluate whether a settlement is the best option anyway.

Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions.

“Fallin’ in the Rain” – Concert Venue’s Wet, Grassy Slope is not a “Dangerous Condition” (NJ)

In Spigai v. Live Nation Worldwide, Inc., et al., the plaintiff and friends attended a concert at the PNC Bank Arts Center in Holmdel, New Jersey. After parking in one of the commuter lots, at the foot of a grassy hill, the plaintiff and her friends took a courtesy shuttle bus to the venue. Unfortunately for concertgoers, rain started early in the day and continued throughout the concert. After being separated, the plaintiff elected to walk with a crowd to her car rather than waiting for a shuttle. Although the commuter lot is accessible via a staircase, the plaintiff followed others down the wet, grassy slope to her vehicle. Mid-descent, she slipped and broke her leg. She subsequently filed suit against the owner and operator of the venue.

The PNC Bank Arts Center is owned by the New Jersey Turnpike Authority/Garden State Parkway (“Turnpike Authority”) and is operated by Live Nation Worldwide, Inc. (“Live Nation”). Following discovery, defendants moved for summary judgment. The Turnpike Authority argued it was immune from liability under the Tort Claims Act. Live Nation, for its part, argued it did not breach a duty of care to the plaintiff. Plaintiff, in opposition, relied on an affirmative expert report opining that defendants failed to adequately assess the risk of accidents, failed to have a surveillance plan, failed to provide physical barriers, and performed negligent crowd control. The trial court, unpersuaded by the affirmative expert, granted summary judgment to all defendants.

Plaintiff appealed, arguing the trial judge misapplied the summary judgment standard by refusing to submit the issue of liability to the jury. In upholding the trial judge’s ruling, the Appellate Division agreed that the grassy slope, even wet with rain, did not constitute a “dangerous condition.” Permitting the existence of a natural hill, on the land, made wet from the weather, was not palpably unreasonable. The Appellate Division further agreed that the obvious nature of the wet grass on the hill made it impossible for the plaintiff to recover against Live Nation, as its duty of care did not extend to warning the plaintiff that grass is slippery when wet or to take steps to prevent walking down the hill in the rain instead of using the provided staircase.

Despite plaintiff’s injury, the defendants provided adequate legal accommodations to concertgoers to account for their safety. Thus, although injuries may occur on commercial premises, it is important to conduct thorough investigations and establish a comprehensive record that accounts for any and all distractions and contributing factors. Here, by establishing that the plaintiff was on her cell phone, traversing a wet, grassy hill wearing flip-flops and carrying a chair and tarp, the facts aligned with premises liability case law to support granting summary judgment to each defendant.

Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.

Up Against the Wall: When an Exception Negates a Tort Liability Defense for Governmental Immunity (PA)

We have all heard the saying or experienced the frustrating phenomenon of “hitting a brick wall.”  Well imagine literally running and colliding into a wall made completely of cement. This encounter is the basis of the case, Brewingon v. City of Philadelphia, which was decided by the Pennsylvania Supreme Court on December 28, 2018.  In this case, a 9-year old student ran and fell into a cement wall while participating in gym class, which led to injuries that persisted following the incident.  His mother filed suit in the Philadelphia County Court of Common Pleas against the school and school district.  Her argument was that the defendants should be held liable for negligence for not padding the cement walls, which allowed for her son’s injuries.  The defendants filed a motion for summary judgment, which the trial court granted, asserting immunity from liability.  The Commonwealth Court reversed the lower court ‘s decision stating that the school fell into an exception that negated the immunity.

The Political Subdivisions Torts Claims Act allows for governmental immunity for local governmental entities.  Under this Act, the child’s school and school district could have been immune from liability for the injuries sustained in the incident.  However, the Act allows for exceptions that can exclude the immunity.  In this case, the exception at issue is the real property exception.  This exception states that a local entity will be held accountable for tort liability if (1) they would have been liable under statutory or common law without protection of the Act; (2) defendants’ “negligent acts” caused the injury; and (3) the defendants were responsible for the “care, custody, or control of [the] real property”.  The parties argued whether the issue was the lack of padding on the wall, which would be classified as personalty and not apply under the exception, or an issue of realty, meaning that the wall was part of the structure of the property under the agency’s control and thus leads to liability.  Each party discussed previous cases of similar school-related incidents in an attempt to strength their arguments.

The Supreme Court found in favor of the mother’s argument by stating that ultimately, the cement wall, which is part of the school’s realty, caused the child’s injuries.  The school is responsible for maintaining the wall in such a way as to avoid tort liability.  The school argued that they were not liable because of the gym teacher’s negligent supervision.  The Court rejected this argument by stating that the mother never asserted this claim and it does not dismiss the fact that the school was responsible for the wall, which caused the harm.

The bottom line is that in cases where local government entities may be immune from tort liability for incidents that occur on their premises, if the cause of the injury is a piece of realty on their property that they are responsible for, then liability remains on the table.  Therefore, local entities may have hit a (cement) wall when it comes to avoiding these exceptions.

Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions.

Middle District of Pennsylvania Dismisses Bad Faith Claim Against Underinsured Motorist Claim for Inadequately Pled Complaint (PA)

The Middle District of Pennsylvania recently dismissed a bad faith claim which lacked adequate factual support that an insurance company acted unreasonably in valuing an underinsured motorist claim.  In Clarke v. Liberty Mutual Insurance Company and LM General Insurance Company, the Court granted an insurer’s Motion to Dismiss and dismissed the matter without prejudice once it found that the plaintiffs’ complaint did not state a plausible bad faith claim.

The lawsuit arose when the plaintiff, Angela Clarke, was injured in a motor vehicle accident with an underinsured motorist.  Angela Clarke and her husband (“Plaintiffs”) settled their claim with the underinsured motorist for the policy limits of $15,000.00 and later sought out additional benefits from Liberty Mutual Insurance Company and LM General Insurance Company (“Defendants”).  The Defendants refused to provide the additional benefits because they believed that the Plaintiffs’ claim was not worth more than the amount they already received from the initial settlement.  As such, the Plaintiffs alleged that the Defendants breached the terms of their insurance agreement and acted in bad faith in violation of Pennsylvania law, 42 Pa. C.S.A. § 8371.

In response, Defendants moved to dismiss the bad faith claim, arguing that the Plaintiffs’ claims were devoid of any well-pled factual allegations of bad faith and that the complaint only pled a disagreement as to the value of their claim.  In siding with the Defendants, the Court determined that the Plaintiffs failed to plead adequate factual mater to support the allegation that Defendants did not act reasonably in valuing the underinsured motorist claim.  The Defendants Motion to Dismiss was granted without prejudice and the Plaintiffs were able a further amended complaint to set forth sufficient facts to state a plausible bad faith insurance claim.

In reaching its conclusion, the Court reviewed the standard for recovery in a bad faith action which requires a plaintiff to “present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.”  Rancosky v. Washington Nat’l Ins. Co., 170 A.3d 364, 365 (Pa. 2017).  In deciding whether an insurer has a reasonable basis for denying benefits, a court examines the factors the insurer considered in evaluating the claim.  The Court explained that “[b]ad faith claims are fact specific and dependent on the conduct of the insurer vis á vis the insured.”  The Court noted that, in this case, the Plaintiffs’ claim was simply that that the Defendants acted in bad faith without providing any factual support to establish that claim.  Rather, the Court explained, the Plaintiffs would need to provide details as to how the Defendants allegedly acted unreasonably in valuing the claim.  The Court also emphasized that, as a general matter, an insurer’s failure to immediately accede to a demand for the policy limit cannot, without more, amount to bad faith.  Thus, the Court did not find that the Defendants violated § 8371 and granted their Motion to Dismiss.

Thanks to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions.