Skier’s Responsibility Act Bars Claim (PA)

A Pennsylvania court recently decided in Vu v. Ski Liberty Operating Corp., 2019 U.S. App. Lexis 4261 (3d Cir. Feb. 12, 2019) whether a ski resort was responsible for a skier’s injuries after they skied over the edge of a trail to avoid colliding with a snowboarder.

Plaintiff, Quan Vu, was skiing at Liberty Mountain when a snowboarder approached him and cut him off, causing Vu to veer toward the edge of he trail.  Vu skied over the edge and landed in a pile of rocks.  Vu suffered multiple injuries and sued the resort, alleging that his injuries were caused by his skiing over an unmarked artificial cliff at the slope’s edge created by the Defendants’ snowmaking and snow grooming practices.  In his complaint, Vu alleged that the defendants were negligent for failing to keep the slope free from unsafe conditions, warn plaintiff of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the rocks below.  Defendants moved for summary judgment arguing that plaintiff’s action was barred because skiing off trail is an inherent risk of downhill skiing.

The court decided that, under the Skier’s Responsibility Act, ski resorts have no duty to protect skiers from the inherent risks of the sport that are common, frequent, and expected.  Losing control and skiing off the side of a trail is an inherent risk of skiing and inherent risks need not be natural conditions.  Because plaintiff failed to identify any particular industry standard that defendant violated, defendants were properly granted summary judgment.

Employer not Liable for Employee’s Negligence When on Vacation (PA)

In Ludwig v. McDonald et al., the plaintiff  filed suit claiming that she was struck by the defendant’s vehicle when she was exiting into the street from her parked car in Forest City, Pennsylvania.  Plaintiff alleged that after she exited her vehicle, the defendant, who was traveling in the southbound lane, entered the northbound lane to avoid another vehicle and struck her as she was standing by her vehicle.  Plaintiff alleged that the defendant was operating his vehicle in the scope and course of his employment with LTC Associates, a company in the business of operating a nursing home in Forest City.  In the complaint, plaintiff alleged claims of negligence against the defendant and vicarious liability against his employer.

Following discovery, LTC Associates filed for summary judgment, alleging that the defendant personally owned the vehicle involved in the accident, and that the defendant was “on vacation” at the time the incident occurred, and therefore LTC was not vicariously liable.  In support of its motion, LTC cited to the defendant’s time off request form that he submitted to request off on the date of the incident.  LTC also cited to testimony by the defendant stating that he was on vacation on the date of the  accident; however, he did go to work earlier in the afternoon to drop some items off.  Further, the defendant’s written time card confirmed that he did take time off on the date of the accident, as he was fixing his porch.  Based on those facts, the trial  court found that the defendant was not working in the scope of his employment on that date, and granted summary judgment in favor of LTC.

In affirming the trial court’s order, the Superior Court stated that there was no dispute as to employee-employer relationship between the defendant  and LTC.  However, the Court found no genuine issue of material fact establishing whether the defendant was working on the date of the accident.  The Court found that defendant was using his vacation time and was not working, despite the fact that he did stop by his place of employment on that date to drop off something and pick up his tools.  The fact that he was driving home from his place of employment when the accident occurred did not place his actions within the scope of his employment, as he freely chose to travel to his place of employment in his personal vehicle to pick something up.  He was not exercising the business of LTC at the time, and there was no evidence to show that LTC had any actual or potential control over the defendant’s actions.

Therefore, the trial court’s granting of summary judgment in favor of LTC was affirmed by the Superior Court.

Thanks to Alexandra Perry for her contribution to this post.

Injured Snow Tuber Successfully Maneuvers through Summary Judgment Motions (NY)

In Jamjyan v. West Mountain Ski Club, Inc., the plaintiff was injured at a snow tubing park. She commenced this personal injury action against the defendants, the owners and operators of the tubing park, alleging that a park attendant caused the accident by prematurely unhooking the tow rope from the snow tube the plaintiff was sitting in while being towed to the top of the hill. The defendants moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of assumption of risk. The Supreme Court denied the motion, and the defendants appealed.

The Appellate Division, Second Department reviewed the facts and concurred with the lower court’s decision in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity.

Assumption of risk is not an absolute defense, but a measure of a defendant’s duty of care. Here, in opposition to the defendants’ prima facie showing, the plaintiff raised a triable issue of fact as to whether the allegedly unexpected action of the tubing park attendant, in prematurely unhooking the plaintiff’s snow tube from the tow line, created a dangerous condition over and above the usual dangers that are inherent in the sport of snow tubing.

Plaintiff also provided an affidavit from an expert stating that the defendants’ actions were not reasonable and would foresee a dangerous condition.

Thanks to Paul Vitale for his contribution to this post.

Winter is Coming…Game of Snows (NJ)

Business owners in New Jersey owe a duty of reasonable care to invitees on their property. The area to which the duty applies extends to the premises’ parking lot.  A New Jersey Appellate Court considered whether that duty of care extends to the removal of snow in the parking lot during an active snowstorm.

In Oyebola v. Wal-Mart and Tree Fellas, the plaintiff sued Wal-Mart and their snow removal contractor Tree Fellas, LLC, for injuries she sustained when slipping on snow and ice near her car in the parking lot.  It was undisputed between the parties that it was actively snowing at all times that the plaintiff was present at the store.   Additionally, it was undisputed that the snow removal contractor was actively removing snow at the time of the incident.

The trial court dismissed the plaintiff’s claim, finding that no rational jury could find the defendants negligent, because plaintiff fell during an ongoing snowstorm, and Tree Fellas was already engaged in snow removal efforts at the time of her fall.  The plaintiffs appealed, relying on a report prepared by their liability expert, stating that the snow removal contractor should have cleared the lot in a sequential manner.

The Appellate Court upheld the dismissal, noting that, even if we accept the opinion of the plaintiff’s expert, it was still snowing at all times that the plaintiff was present at Wal-Mart. Thus, even if the snow was removed sequentially, it still would have continued to fall next to the plaintiff’s car.  The Appellate Court confirmed that the defendants’ duty to remove the snow did not arise until a reasonable passage of time after the snowstorm.

This case is important because it highlights the importance of determining the timing of snowfall in any case involving a slip and fall on snow/ice, since a business owner does not have a duty to remove the snow during an active storm.

Thanks to Heather Aquino for her contribution to this post.

Bar Fight Liability: Taking it Outside (NY)

In Covelli v Silver Fist Ltd., 2018 NY Slip Op 08914 (2nd Dep’t December 26, 2018), the plaintiff, an administrator of a decedent’s estate, commenced an action against an individual, Roll, and bar defendants to recover damages for negligence and wrongful death.  Plaintiff’s decedent died from injuries sustained as a result of an altercation with Roll in the public street outside the bar.

The Second Department ruled that it is uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, where defendants had the opportunity to supervise intoxicated guests and that a landowner, not being insurers of a visitor’s safety, have no duty to protect visitors against unforeseeable and unexpected assaults.

Here, as the altercation was outside the premises and control of the bar defendants and was a sudden and unforeseeable event, the lower Court’s order granting the bar defendants motions for summary judgment dismissing the complaint was affirmed. There was no comment regarding the irony of the bar’s name.

This case is of particular interest in that it allows the bar defendants off the hook for liability even when the altercation occurred right outside the bar.  However, although a beneficial opinion towards the defense bar, experienced defense attorneys will be cautious when using this case in similar bar fight scenarios as this opinion appears to show no evidence of the altercation brewing inside the bar before stepping outside.  In cases where evidence is present where the altercation starts developing in the bar it may be more difficult to as clearly differentiate when the bar’s duty to prevent the altercation starts.

Thanks to Jonathan Pincus for his contribution to this post.

Landowner Not Liable for Slip and Fall During Active Weather Event (PA)

In Beauford v. Second Nature Landscaping and Construction, Inc., the plaintiff claimed that he slipped and fell in March of 2015 outside an apartment building owned by Definitive Properties, LLC (“Definitive”).  At that time, Definitive had contracted with Second Nature Landscaping and Construction, Inc. (“Second Nature”) to provide snow removal services.  The contract required Second Nature to automatically respond within 24 hours when the snow reached a certain depth.  On the day of the accident, it began raining around 2:00 PM.  That day, the temperature remained above freezing and at 10:30 PM, the time of the plaintiff’s alleged fall, the temperature was between 44 and 46 degrees Fahrenheit.  According to the plaintiff, he slipped and fell on an ice puddle that formed sometime between 11 AM and 10:30 PM.  Plaintiff filed suit against both Second Nature and Definitive seeking damages for his personal injuries.

Both defendants filed for summary judgment, which was granted, and plaintiff appealed.  The court relied on the hills and ridges doctrine in Pennsylvania, which states that a plaintiff must show snow and ice accumulated on the sidewalk in ridges or elevations of such size and character so as to unreasonably obstruct travel and constitute a danger to pedestrians.  The Court further stated that the only duty of the property owner is to act within a reasonable time after notice to remove the snow and ice when it is in a dangerous condition.

The Court found that although there was no factual dispute that the plaintiff slipped and fell on a purported ice puddle during an active weather event, i.e. at a time when generally slippery conditions prevailed in the community.  Finding that under Pennsylvania law, a landowner has no obligation to correct conditions until a reasonable time after a winter storm has ended, there was no obligation at that time by either Definitive or Second Nature to remove snow and/or ice at that time.  Therefore, defendants’ summary judgment motions were granted.

Thanks to Alexandra Perry for her contribution to this post.

Defense’s Biomechanical Expert Gets “Fryed” (NY)

In Imran v. R Barany Monuments Inc, the Appellate Division, Second Department applied the Frye standard in precluding an expert’s trial testimony and set aside a defense verdict.  The Plaintiff was involved in a four-vehicle collision, where she sustained injuries to the cervical and lumbar regions of her spine and both knees. At trial, the defendants presented testimony of a biomechanical engineering expert, who testified regarding the change in velocity of a vehicle during a collision (“delta-v forces”). Relying on photographs of the plaintiff’s vehicle, and a crash test involving the same make and model of vehicle, the expert concluded that the impact of the second front-most vehicle to plaintiff’s vehicle would not have caused the plaintiff’s injuries to the lumbar region of her spine or her knees.

The jury returned a verdict in favor of the defendants on the issue of damages, finding that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident. Subsequently, the plaintiff moved to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial, arguing, inter alia, that the expert’s testimony on causation should have been precluded. The Supreme Court granted the motion, and the defendants appealed.

The Appellate Division, Second Department, relied upon the Frye (293 F 1013, 1014) standard and agreed with the lower court’s decision to grant plaintiff’s motion.   Pursuant to established New York law, an expert’s opinion must be based on facts in the record or personally known to the witness. The accepted techniques, when properly performed, must generate results accepted as reliable within the scientific community generally. Courts will generally admit expert testimony that’s deduced from well-recognized scientific principles or discovery, as long as the thing from which the deduction is sufficiently established to have gained general acceptance in the particular field in which it belongs.  Finding that a proper foundation was lacking for the admission of the expert’s testimony, the court found that the expert should have been precluded from testifying because he did not calculate delta-v forces of all vehicles involved, the crash tests he used differed from the accident, and the simulations used dummies with different weights than plaintiff.  A new trial was ordered.

It is easy to focus on the favorable conclusion proffered by your own expert, but a seasoned litigator will focus not only on the results, but the process.  Having a keen understanding of presentment of the expert at trial can avoid the consequence of calling an expert that reached an unreliable conclusion.

Thanks to Margaret Adamczak for her contribution to this post.

 

Translation Dispute and Hearsay Testimony Precludes a Finding of a Question of Fact in Labor Law Case Resulting in Summary Judgment for Plaintiff (NY)

In Nava-Juarez v Mosholu Fieldston Realty, LLC, the Appellate Division reversed a Supreme Court decision and granted partial summary judgment to the plaintiff in a Labor Law case, and addressed the issue of hearsay testimony in opposition and translation disputes.

The plaintiff claimed he was injured when the ladder he was working on shifted suddenly.  In support of his summary judgment motion, the plaintiff provided an affidavit of a coworker who witnessed the accident and averred that plaintiff was painting the exterior facade of defendant’s tavern when his ladder shifted, causing plaintiff to fall from his position three-quarters of the way up the ladder.

In opposition, the defendants argued that a workers compensation form contained statements from the plaintiff with a different version of how he was injured.  The plaintiff’s workers compensation form stated the accident happened “while walking I fell down stairs.”

The Supreme Court Bronx County denied the plaintiff’s motion for partial summary judgment under Labor Law § 240(1).  On appeal, the Appellate Division reversed this ruling.  In its opinion, the Appellate Division held that the defendants failed to raise a triable issue of fact because hearsay, standing alone, is insufficient to defeat summary judgment.

Further, the Court noted that the workers compensation form was prepared by plaintiff’s worker’s compensation attorney with the aid of a translator.  Plaintiff testified that he told the translator “Mientras estaba trabajando me cai de una escalera,” and asserts that the statement should have been translated as “While working I fell off a ladder.”  The decision notes that the Spanish word “escalera” may be translated as either “stairs” or “ladder” and in this case, there were no “stairs” to speak of as the premises is a one-story building and did not have an exterior staircase.   The Appellate Division ruled that the plaintiff was incapable of discovering the error in the translation of the description of his accident because he could not read English and correct the statement.

The summary judgment denial was reversed because the defendants were obligated to show that plaintiff was the source of the information recorded in the workers compensation form indicating that he fell from “stairs,” and that the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand at trial.

Special thanks to George Parpas for his contribution to this post.

Consideration of Liability Under Dog Bite Statute Includes Charging and Growling (NY)

Although New York is a “one bite” state – meaning to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” and vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. However, there are other actions that a dog might show that demonstrate “vicious propensities” without resorting to actual biting as shown below.

In Meka v. Pufpaff, plaintiff brought an action to recover damages for injuries allegedly sustained as a result of the vicious propensities of defendants’ dogs. Plaintiff was walking her dog, when defendants’ dogs approached them. According to plaintiff’s deposition testimony, one dog came toward her at a “full run” and began “biting” plaintiff’s dog’s neck. Plaintiff lost her balance, fell over one of the dogs, and dropped to the curb, fracturing her arm.

Both defendants and plaintiff moved for summary judgment and the lower court denied both motions. Both parties appealed the decision and the Appellate Division, Fourth Department upheld the lower court decision as to the vicarious liability portion of the complaint, but granted defendants’ motion for summary judgment as to negligence.

Defendants contended on their appeal that Supreme Court erred in denying their motion with respect to the strict liability cause of action because their dogs had not demonstrated vicious propensities prior to the subject incident. However, per the deposition testimony, the Court held that “a known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant[ ] liable for damages resulting from such an act.” There was deposition testimony of a neighbor, who testified that one day, when she was walking her dog past defendants’ house, defendants’ dogs growled and “came charging” at them, thus raising an issue of fact.

Finally, the Court held that a claim for ordinary negligence does not lie against the person responsible for a dog that causes injury and thus dismissed that portion of the plaintiff’s complaint.

Thanks to Paul Vitale for his contribution to this post.

Insurer Off the Hook for Loss of Business Income Due to Clogged Toilet (NJ)

A New Jersey appellate court recently decided whether an insurer must provide additional coverage for damage caused to a restaurant by sewage backup in FOUZIA SALIH v. OHIO SECURITY INSURANCE.

After a dreadful toilet clog in a New Jersey restaurant, plaintiff sought coverage in excess of its policy’s $25,000 limit for heavy damage to the restaurant under a lost business income provision.  The clog destroyed the water heater, furnace, restaurant’s tiles, basement, first-floor bathroom, and kitchen, causing $162,933.63 in total damage.   The policy’s general provisions excluded coverage for water damage caused by backup or overflow but included a custom endorsement which provided a $25,000 sublimit for such events.

A public claims adjuster determined that the loss was caused by water discharge while the insurer determined that the cause of loss was raw sewage backup.  The insurer issued checks for $25,000 for the damage and plaintiff filed a lawsuit after finding that the damages far exceeded the endorsement limit.  In the lawsuit, plaintiff sought more coverage and alleged that the insurer breached its terms to provide benefits covered under the policy.

The insurer moved for summary judgment and plaintiff filed an opposition relying on the business income provision, which states that the insurer will cover the actual loss of income sustained due to damage.  The lower court ruled in favor of the insurer, finding that the custom endorsement put plaintiff on notice that the business income provision would not cover damages if the water damage coverage was only created as a result of the endorsement.  Finding that the policy terms were clear, unambiguous, and supported the insurer’s interpretation of the policy, the appellate court affirmed the lower court’s decision.

Thanks to Chelsea Rendelman for her contribution to this post.