Surgery Not Necessarily A Permanent Injury Under Tort Claims Act (NJ)

In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery.  Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment.

In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome.

By all accounts, plaintiff enjoyed a good surgical outcome,  and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the  accident.  Although she complained of debilitating pain, plaintiff  had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief.

Plaintiff’s medical expert  found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased,  or how that resulted in the substantial loss of any bodily function.

The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, “a mere limitation on a bodily function” will not suffice. Similarly, “an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain,” is insufficient.

The court dismissed the plaintiff’s claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act.  Even surgery may vault the requirement of a substantial and permanent injury.  The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person’s function.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at


Note of Issue Received Unless Proven Otherwise (NY)

A note of issue date is one of the most important dates for defendants to monitor in litigation in New York.  In Meisels v Raptis, the Supreme Court, Kings County, denied medical malpractice defendants’ motion to strike plaintiff’s note of issue and extend time for filing summary judgment despite their claim that they had never received it.

The plaintiffs alleged that the defendants failed to timely diagnose a two year old child’s Herpes Encephalitis that caused developmental delays.  Although the court extended the date for filing a note of issue to February 3, 2017, the plaintiff filed on August 22, 2016, along with a certificate of trial readiness.

The defendants disputed receipt of the note of issue and sought to strike it well beyond the twenty days allowed for such a motion.  Significantly, the failure to timely move to strike prohibited the defendants from filing for summary judgment.  Curiously, the defendants did not question the affidavit of service that had been filed with the note.  Instead, they argued that fact discovery had continued and was outstanding even after the filing of the note of issue.  This, they said, proved that there was an incorrect material fact in the certificate of readiness.

The court ruled that the defendants’ motion to strike the note of issue was untimely and found defendants failed to show “unusual or unanticipated circumstances.”  This ruling effectively ended defendants’ right to receive outstanding discovery, placed the matter on the trial calendar, and precluded defendants from moving for summary judgment.

The court set precedent that, if defendants truly believe they did not receive the note of issue, they must attack the affidavit of service.

Thanks to Christopher Gioia for his contribution.

For more information, contact Denise Fontana Ricci at


Beware: Basketball Is A Contact Sport (NY)

A high school student who opted to play basketball in gym class voluntarily engaged in an activity with awareness of the risks inherent to playing, including the possibility of collision or contact with another participant.  This voluntary assumption of the risk barred a suit for negligence against his high school.

In Hanson v Sewanhaka Central High School District, the plaintiff alleged that he was injured during a basketball game in gym class after he was kicked in the leg by a fellow student. The defendant school district and defendant student both moved for summary judgment, arguing the doctrine of primary assumption of risk, and both motions were granted by the lower court. The plaintiff appealed.

Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”. By freely assuming these risks, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from them, if the risks are fully comprehended or perfectly obvious. However, a plaintiff cannot assume the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

The Appellate Division, Second Department, found that the plaintiff opted to play basketball from a number of options. He was aware of the risks inherent to playing, including potential physical contact with other students. Although the plaintiff testified at a hearing on the motion that the other student purposely kicked him, this was neither pled in his complaint nor mentioned in his bill of particulars.  The court disregarded this testimony as a plaintiff cannot raise a new or materially different theory of recovery for the first time in opposition to a motion for summary judgment.

The plaintiff also sought to defeat summary judgment by application of the inherent compulsion doctrine.  However, this doctrine precludes an assumption of the risk defense where the plaintiff’s conduct is not voluntary due to the compulsion of a superior. In essence, plaintiff alleged that the School forced him to participate in basketball. However, plaintiff’s own testimony demonstrated that he elected to play basketball over a variety of other gym activities. The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the moving defendants.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at


Worker Entitled to Compensation If Pre-Existing Condition Aggravated at Work (PA)

A work related injury is compensable under Pennsylvania workers compensation laws even if it is an aggravation of a pre-existing condition such as osteoarthritis.  In Brand Energy Services, LLC v. Worker’s Compensation Appeal Board , an employer appealed an award by a workers compensation judge arguing that causation had not been established for aggravation of bi-lateral carpal tunnel syndrome, osteoarthritis and other conditions.

The employee, a union carpenter, was employed to build, modify and dismantle scaffolding for the employer’s clients.  His employer was paid by the foot for the scaffolding erected.  The employee had been working days.  When he was transferred to a night shift, his work assignment increased from eight hour shifts to ten to twelve hour shifts.  He worked thirteen days in a row and had only one day off.  Not only was he expected to work longer hours, but to meet the needs of the plant where he was working, they had to erect more scaffolding per shift.  He testified that in an eight hour shift, the workers would assemble 300 leg feet of scaffolding.  In the night shift, he was building between 1000 and 1200 leg feet.

The worker’s hands became swollen under this new work regimen.  He sought treatment for his hands, as they continued to be numb, swollen, and tingly.  His doctor diagnosed work-related bilateral carpal tunnel syndrome, osteoarthritis, and left scapholunate advanced collapse (SLAC) wrist.   When the worker submitted a note from his family practice to his supervisor outlining his diagnoses, he was laid off.

On appeal from the workers compensation tribunal, the Court faced two issues: (1) whether the doctor’s testimony was equivocal as to the causal connection between the work and the work-related aggravation of underlying conditions; and (2) whether the doctor had a sufficient understanding of the work, and consequently, a proper factual foundation for a medical opinion such that his opinion was competent.

In terms of the former question, the court held the causal connection was a question of law and worker’s burden to present unequivocal medical testimony.  At issue was whether the doctor’s use of “probable” with respect to causation of one of three diagnoses rendered the entire opinion insufficient to support any award.  The court disagreed with the employer’s argument in this regard.  It found that the doctor’s testimony as to the aggravation of carpal tunnel syndrome and osteoarthritis was sufficiently supported.  However, because the doctor testified that there was a “probable SLAC wrist,” that diagnosis was insufficiently proven.

In terms of the latter question, the Court considered Pennsylvania case law that held proffered medical opinion can be rendered incompetent if the medical professional does not have a complete grasp of the patient’s work, such as if the medical profession demonstrates a lack of knowledge as to his or her patient’s tasks.  While the Employer argued the doctor did not have a complete grasp of the job duties, the Court rejected its argument because the doctor reviewed his patient’s testimony and took a history from him.  Given this testimony, the Court considered the doctor competent to render an opinion.

Thanks to Lauren Berenbaum for her contribution.

For more information, contact Denise Fontana Ricci at

This and That by Dennis Wade

In American parlance a “cake walk” is an absurdly or surprisingly easy task.  But this December when the United States Supreme Court hears Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the challenge will be anything but a “cake walk.”  In fact, to decide the case, SCOTUS may have to decide whether a “cake” qualifies as a work of art.

The legal fight started when Colorado baker Jake Phillips refused to create a specialty cake for a same sex couple’s forthcoming marriage, claiming such a task would be contrary to his deeply held religious beliefs.  This refusal led to a complaint before the Colorado Civil Rights Commission charging discrimination based on sexual orientation, a clear violation of the Colorado’s anti-discrimination law.  The Commission agreed with the aggrieved couple and so did the intermediate Appellate Court, finding that supplying a cake did not constitute a “message” in relation to the propriety of same sex marriage.  It was, well, like selling a hamburger or some other commodity.  The Colorado Supreme Court refused to hear the case but, after much discussion, SCOTUS agreed to hear the matter.

The case, which has a cake at its center, pits the 14th Amendment (equal protection under the law) against the 1st Amendment (the sanctity of religious belief and expression).  On the surface, it would seem, regardless of the high court’s spectrum, from liberal to conservative, that there is no right to refuse to sell a product in a public place premised on bias or discriminatory animus.

But here, the baker, Jake Phillips, contends that his cakes are works of art, and that he ought not be compelled to create a work of art, a specialty cake, that violates his religious beliefs.  Anything else in the bakery, already made, is up for sale to anyone, Phillips claims.  But the line Phillips wants to draw is the right to refuse to create a work of art, a cake.  Scores of amicus briefs have been submitted aimed at proving that a cake can indeed be a work of art.  One brief is filled with vivid color photos of custom cakes in various exotic shapes.

So what does the Masterpiece cake have to do with insurance issues, the usual subject of my blog?  It vividly illustrates how important decisions often turn, not on legal principles, but on vexing questions, bordering on the metaphysical (Is a loss fortuitous?  And, yes, can a cake qualify as a work of art?).  My prediction: SCOTUS will somehow “ice over” (ouch!) the cake as art issue and affirm the ruling below 5/4, with Justice Anthony Kennedy writing the majority opinion.

And that’s it for this This and That. And to the bakers of the world, amateur and professional, art aside, I like chocolate, lots of it. 

Yankees Safe in Foul Ball Accident (NY)

Yankees fans will recall a scary incident in late September where a young child was struck by a foul ball at Yankee Stadium.  Although there has been no word whether the family will sue the Yankees, a recent appellate decision may impact the issue.

In Zlotnick v. New York Yankees Partnership, plaintiff brought a personal injury action against the Yankees for injuries sustained when he was struck in the eye by a foul ball as he was sitting in his seat halfway down the first-base line, a few rows from the field. The Supreme Court granted the Yankees’ motion for summary judgment and plaintiff appealed.

The First Department upheld the lower court’s decision and ruled the Yankees did not breach a duty of care, since the evidence showed that appropriate netting was erected behind home plate (which is essentially the limit of what a stadium is required to do to meet the duty of “reasonable care”) and there was no evidence indicating that there was a lack of available seating in this protected area.

The Court rejected plaintiff’s argument that the defendants’ conduct enhanced the risks normally attendant to the game of baseball because the game was played in  rainy weather, and that the Yankees did not enforce the stadium’s policy against the use of umbrellas that obstruct the ability of other patrons to view the game, because rainy weather and umbrellas are not uncommon at baseball games.

In addition, the Court pointed to the warnings about foul balls on the back of plaintiff’s ticket, on the back of the seats, as well as those regularly made over the public address system, which called upon plaintiff to request a change of seating if plaintiff was worried about being struck by a foul ball.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.

OSHA Violation not Applicable to Produce Market Forklift Mishap (PA)

In Pennsylvania, in determining whether a duty exists in a negligence action, a court may look to a “legislative enactment or an administrative regulation” for the standard of conduct of a reasonable person. To that end, Pennsylvania courts sometimes rely on regulations by the Occupational Safety and Health Administration (“OSHA”), which is part of the US Department of Labor, to determine whether an employer has a duty in a negligence claim—after all, part of its mission is to assure safe working conditions by setting and enforcing standards.

The question in Kovacevich v Regional Produce Cooperative Corporation was whether a policy in OSHA’s Field Inspection Reference Manual constituted an “administrative regulation,” thereby triggering a duty of care on defendant Regional Produce Cooperative Corporation (“RPCC”). Defendant RPCC is a management company that operated a wholesale produce market. Plaintiff was a tenant leasing space in the market. In February 2013, one of plaintiff’s co-workers drove a pallet jack full of fruit “forks first” into plaintiff’s back, causing serious injuries.

The plaintiff relied on an OSHA regulation that provides that an employer must train and certify operators of powered industrial trucks, such as forklifts. Although RPCC did not employ the forklift operator, plaintiff argued that the market was a multi-employer worksite; per OSHA policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard if they are a “controlling employer.” According to plaintiff’s theory, since RPCC owned the market where industrial trucks operate, it had a duty to ensure operators were trained and certified.

At the close of trial, the judge entered a nonsuit in favor of defendant RPCC, finding that a jury could not reasonably hold RPCC liable on its OSHA-based theory of premise liability. On appeal, the Superior Court affirmed the trial court’s ruling. The Superior Court relied on Supreme Court precedent which distinguishes between administrative regulations (which set standards of care) and guidance documents (which describe enforcement policies). The Superior Court deemed the “controlling employer” policy was not a regulation but an OSHA compliance directive and the directive’s intent was to guide OSHA regulators in dealing with multi-employer worksites by giving them the power to cite numerous employers for a violation if they have some level of control or responsibility over the worksite.

Historically, courts have only applied the “controlling employer” directive to construction sites, where there are numerous contractors and subcontractors and here the court was not persuaded to extend the application to a produce market.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information.

Expert Needed to Explain Dangerous Mannequin Placement (NJ)

In Reiger v. Ann, Inc., the New Jersey Appellate Division faced the strange question as to whether expert testimony was required for plaintiff to pursue claims against a defendant store owner for its placement of a mannequin platform display near a mirror.

Plaintiff was shopping in defendant’s clothing store and tried on a scarf in the dressing area.  As plaintiff was backing away from a mirror, her heel hit a mannequin platform and she tripped over the platform, causing a mannequin on the platform to fall over plaintiff, injuring her shoulder and elbow.  Plaintiff testified that she did not notice the platform display when she entered the dressing area.

Defendant retained an engineering expert who opined that plaintiff’s accident was caused by her failure to maintain a proper lookout in the direction that she was moving before she fell.  Defendant’s expert also found that the aisle between the mirror and the platform exceeded the applicable building codes, and that plaintiff’s accident was not caused by a defective condition.  Although plaintiff retained an engineering expert who conducted a site inspection, plaintiff failed to serve an expert report during discovery.

The trial court granted defendant’s motion for summary judgment, finding that plaintiff failed to demonstrate that the platform’s placement breached a standard of care and constituted a dangerous condition.  Specifically, the trial court ruled that plaintiff required (and lacked) expert testimony to establish that there was insufficient space between the mirror and the mannequin platform.

On appeal, plaintiff argued that a liability expert was not required to help a jury decide whether defendant breached a duty of care because her injuries were a foreseeable result of defendant’s placement of the mannequin platform across from the mirror.

The Appellate Division affirmed the trial court’s decision and agreed that plaintiff needed an expert to explain how the placement of the mannequin platform constituted a dangerous condition because “the customs and standards” for retail store displays and safe clearance conditions are not part of a jury’s common knowledge.  The Appellate Division further reasoned that it was undisputed that defendant did not violate any building codes, and the platform was neither camouflaged nor protruding into the access way.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Jury Finds Against Building Owner in 5 Pointz VARA Case

5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals.  The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects.

But eventually Wolfkoff decided to sell the warehouse to housing developers.  The artists filed suit under Visual Artists Rights Act (VARA) in Cohen v. G&M Realty.  

VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes.  VARA grants two primary rights:

  • The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.
  • The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work.

The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti.  Judge Frederic Block, in federal court in Brooklyn, 5 Pointz TRO decision, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute.

Last month the case went to trial, and this week the jury returned its verdict, finding in favor of plaintiff.  The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.”  It seems they reached different decisions for different works, and awarded a variety of damages.  The entire verdict should be released shortly.

And there is an interesting quirk: the parties agreed the jury verdict will be “advisory” and that the Judge will render the final decision — so we will be certain to report in the future on the final outcome.

Please e-mail Mike Bono with any questions or for more information.