Plaintiff’s Claim Against Movie Theater Flops at Box Office (NJ)

Anyone who has gone to the movie theater to catch the latest flick knows to tread carefully when exiting the theater. No matter how many ushers and cleaning crew are available, it’s a challenge to keep the floors completely free of any loose popcorn, snacks, or general debris in between movie showings.

In Frankel v. Edgewater Multiplex Cinemas, et. al., plaintiff filed a claim seeking damages for injuries sustained after a slip and fall in defendant’s movie theater. It was a crowded night at the theater, so plaintiff decided to sit in the dreaded first seat of the first row which was adjacent to an emergency exit door. When the movie ended, plaintiff attempted to exit towards the lobby, when he slipped and fell into the metal bar of the emergency exit door suffering a crush avulsion and laceration to his forehead.

Plaintiff testified that he had seen “litter” when he first sat down in the theater before the movie began, but “paid it no mind.” However, plaintiff was unable to identify what he had fallen on at the time of the accident. The defendant indicated that not only did the theater have ushers that would clean the theaters between movie showings, a “breach person” is responsible for inspecting auditoriums each hour to check sound levels, lighting levels, cell phones, talking patrons, or any items posing a tripping hazard. The theater showed evidence that the breach person had inspected the theater on an hourly basis, including two inspections which took place approximately half an hour before plaintiff’s accident.

The appellate court found that although there is a duty of care of business owners to eliminate dangerous conditions and keep the premises reasonably safe, plaintiff failed to show that defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Plaintiff could not identify what he had slipped on, and therefore could not establish that defendants were aware of the condition that caused plaintiff to fall. As such, the appellate court affirmed the trial court’s decision and affirmed defendant’s dismissal from the lawsuit.  Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.

Seemingly Inconsistent Verdict Results in Defense Win (PA)

On March 6, 2019, the Pennsylvania Superior Court affirmed a judgment entered in the Court of Common Pleas Monroe County in Steudler v. Keating.  The case arises out of a tragic accident in which Kirkland Keating’s car struck and killed Victor Angel Resto while Resto and Steudler were walking on the side of a highway.  At trial, it was undisputed that the Accident occurred on October 19, 2011 at 10:00 pm.  There was also no dispute that Decedent and Steudler were walking in the dark without any flashlights on the same side of a two-lane road as vehicles traveling in the same direction.

However, facts concerning where Decedent and Steudler were walking, Keating’s driving and the weather and visibility conditions were disputed.  According to Keating, he had been obeying all traffic laws at the time of the Accident and did not see Decedent before his SUV struck Decedent.  Further, both Keating and the responding police officer testified the road was dark and it was raining heavily at the time of the Accident.  The police officer also noted the Decedent was wearing dark clothing and he found one of Decedent’s shoes lying partially on the white line of the road.  As such, Keating’s expert opined that Decedent was walking on the road itself at the time of the Accident and not on the shoulder.

After deliberation, the jury returned unanimous verdicts finding Keating was negligent, but Keating’s negligence did not cause harm to the Decedent and Steudler.  Steudler and Decedent’s estate appealed on the ground that the verdicts were against the weight of the evidence.   Based on the verdict sheet, the jury found that the defendant was negligent, but that the negligence did not cause harm to the plaintiffs, which seems at odds with the fact that there was 1) negligence and 2) a collision with the pedestrian plaintiffs.

In Pennsylvania, a new trial cannot be granted on the ground that the verdict was against the weight of the evidence if the evidence at trial was conflicting and the jury could have decided in favor of either party.  Here, both Keating’s negligence and the cause of Decedent’s death were disputed at trial and the evidence was conflicting.  Therefore, the PA Superior Court affirmed the trial court’s ruling.  Thanks to Garrett Gittler for his contirbution to this post.  Please email Brian Gibbons with any questions.

Serious Injury Threshold Favors Plaintiff with Documented Pre-Existing Condition (NY)

In New York, a person injured in a motor vehicle accident cannot maintain a lawsuit for personal injuries unless the injuries are “serious” as defined by the New York State Insurance Law.  Typically, the Court is lenient as to what constitutes a serious injury, assuming the plaintiff’s medical proof is sufficient to show prima facie evidence of a serious injury.

In Munoz v. Robinson, decided by the Appellate Division, First Department on March 5, 2019, the underlying Court had granted summary judgment in favor of the defendants on the plaintiff’s failure to meet the personal injury threshold. Plaintiff suffered a torn meniscus and had surgical repair following the accident. However, plaintiff had pre-existing degenerative issues with the knee confirmed by her own physicians.

Both the lower Court and the Appellate Division found that the defendants met their burden in showing that the injury which required surgical repair pre-existed the accident. However, the Appellate Division found that plaintiff raised a question of fact to overcome the defendant’s prima facie showing of entitlement to summary judgment by showing that the accident aggravated the prior injury to such a degree that surgery was necessary, wherein it would likely not have been necessary before.

This decision further shows how the high standard defendants face in obtaining summary judgment on the personal injury threshold issue in motor vehicle accident cases.  Even here, if we might paraphrase Michael Corleone, the defendants thought they were out, but the First Department pulled them back in!  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Untimley Expert Disclosure Stricken in Westchester County (NY)

At a time when many counties tend to blur the CPLR, it is nice to know the rule of law still applies in Westchester County.  The Second Department upheld a lower court decision to strike plaintiff’s untimely expert disclosure and deny plaintiff’s cross motion to amend her pleadings in Holder v. County of Westchester.  Downstate counties are increasingly permitting post-note of issue discovery, however, the Supreme Court in Westchester correctly struck plaintiff’s post-note of issue expert disclosure upon defendant’s motion.

Plaintiff was allegedly injured on December 13, 2009 while disembarking from a bus.  Her original notice of claim, complaint, and bill of particulars were premised on the theory that the bus driver failed to lower the front of bus, causing plaintiff to fall when she disembarked.  After the note of issue was filed, plaintiff served a supplemental response to defendants’ demand for expert disclosure wherein she added an additional theory of liability, namely, that the defendants allowed her to disembark from the bus in an area that contained ice which caused plaintiff to step on ice and fall.  The plaintiff had already testified that she did not know of anything else that caused her to fall other than the height of the bus.

The defendants moved to strike plaintiff’s supplemental responses and the plaintiff cross-moved to amend her pleadings.  While courts generally allow plaintiffs to freely amend their pleadings, the Appellate Division found “where, as here, leave to amend is belatedly sought, judicial discretion should be exercised sparingly.”  Changing a theory of liability so late in the game is extremely prejudicial and as such, the lower court correctly granted defendant’s motion and denied plaintiff’s cross-motion.

While part rules in Kings and Queens County give plaintiffs ample opportunity to engage in post-note of issue discovery, it is refreshing to see a plaintiff appropriately held accountable for a tardy disclosure, which would have been prejudicial to the defendant. Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

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.

Opposition to MSJ Requires Rebuttal Evidence, not just Rebuttal Allegations (PA)

American Southern Insurance Company, Inc. was victorious recently when its summary judgment decision regarding a contractual indemnification dispute was upheld on appeal. In American Southern Ins. Co. v. James A. Halbert , et al., PA Superior Court, No. 504 MDA 2018, the Pennsyvlania Superior Court upheld the trial court’s granting of summary judgment in favor of American Southern.

The underlying case involved a performance surety bond for public improvement in North Cornwall Township, PA.  Back in 2006, American Southern had entered into an indemnity agreement with the Halbert family (on behalf of the Oaklea Corporation) wherein the Halberts agreed to indemnify American Southern from any claim or liability arising from the issuance of a performance bond.  Subsequently, American Southern issued a performance bond in favor of North Cornwall Township to secure completion of improvements for local development by the Oaklea Corporation.  In July 2016, the Township informed American Southern that Oaklea refused to respond or perform certain improvements that were demanded by the Township.  The Township demanded compensation from American Southern, who in turn, demanded indemnification from the Halberts.  The Halberts responded that the improvements demanded by the Township were unnecessary.

In October 2017, American Southern moved for summary judgment asserting that there were no genuine issues of material fact in dispute and that American Southern was entitled to indemnification against the Halberts, as a matter of law.  In response, the Halberts cited their Answer and defense that the improvements were unnecessary and also argued that the indemnification agreement was an unconscionable contract of adhesion.  The trial court concluded that Halbert failed to show that the improvements were unnecessary and that the agreement was not a contract of adhesion. The Halberts appealed.

On appeal, the Superior Court explained that the Pennsylvania rules governing summary judgment explicitly prohibit a non-moving party from merely relying on the allegations or denials of the pleadings, thus rendering the Halberts’ position deficient.  The Halberts conceded that an operative provision of the indemnification agreement granted American Southern the exclusive right to determine whether claims such as the ones brought by the Township should be settled or defended; thereby nullifying Halberts’ repeated defense that the demanded improvements were not necessary.  Furthermore, while the court entertained the Halberts affirmative defense that the indemnification agreement was a contract of adhesion, it concluded that the Halberts failed to cite to any evidence detailing the circumstances that would support their assertion that the contract was, in fact, a contract of adhesion.

Ultimately, the Superior Court denied the Halberts appeal and affirmed the granting of summary judgment in favor of American Southern, emphasizing the Halberts’ failure to cite evidence of record that would support their claims.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Death, before his Deposition, also Fatal to His Estate’s Cause of Action (NY)

The death of a plaintiff can be devastating to that decedent’s cause of action — especially where the decedent dies before being deposed, as in Thompson-Shepard v. Lido Hall Condominiums.  This 2019 First Department decision granted defendant’s motion for summary judgment because there was no way for the cause of plaintiff’s un-witnessed accident to be surmised.

Decedent was allegedly injured when he fell on the stairs at defendant’s premises.  His pre-deposition death, unrelated to the unwitnessed fall, precluded plaintiff’s estate from asserting a conclusive the cause of the accident.

Plaintiff attempted to remedy this defect by submitting an expert affidavit claiming that the irregular and excessive riser heights coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser showed that the defective riser heights caused decedent’s accident.  The court found that the expert failed to raise an issue of fact as there was no witness to link the claimed defect to decedent’s accident as there was no sworn statement or testimony by decedent claiming he fell due to riser height.

It is crucial to remember in trip and fall cases that a plaintiff’s cause of action hinges on the cause of the accident.  When plaintiffs are unable to conclusively determine what caused them to fall, there is no way for defendants to be on notice.  As a practice point, locking in inconclusive testimony as to proximate cause is fatal to a plaintiff’s negligence action.   Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Forman Decision Cited by First Department in Allowing Defendant’s Expert Access to Plaintiff’s Social Media (NY)

Last year, Wade Clark Mulcahy won a significant victory, both for our client and for the defense bar in general, in Forman v. Henkin In a unanimous reversal of the underlying First Department decision, the Court of Appeals held that a plaintiff’s social media posts are discoverable, so long as the defendant demonstrates some need for the materials therein.  The Court of Appeals held that social media relevancy trumps privacy interests, which thereby created new law in New York, and a new means for defendants to gauge plaintiffs’ damages claims.

Since the Forman decision in February 2018, we have been keeping tabs on how the various appellate divisions have been applying the new law.   Last week, the First Department not only followed Forman, but actually broadened a defendant’s rights, in Vasquez-Santos v Mathew.  The plaintiff in that case claimed an injury, and defense counsel became aware of photos of plaintiff playing basketball, which were posted on social media after the accident.  Plaintiff testified that even though the photos were posted after the accident, they had actually been taken before the accident, and therefore, were not relevant to damages.

Defense counsel wasn’t buying plaintiff’s account, and although counsel’s motion to compel was denied at the trial level, the First Department wasn’t buying it either.  The First. Department unanimously reversed the trial court, citing cited Forman in its decision.   The Court took the additional step of granting defendant access, through a third-party data-mining company, to plaintiff’s devices, email accounts, and social media accounts, to assist in defendant’s damages evaluation.

The fact that Forman is being followed and even broadened — particularly by the First Department — is welcome news for the defense bar, and illustrates the significance of WCM’s victory at the Court of Appeals last year.  Please call Mike Bono or Brian Gibbons with any questions about the Forman decision, and its impact on personal injury litigation.

Self-Destructive Selfies (NY)

Defense attorneys have increasingly turned to social media  to defend against exaggerated claims of personal injuries. In Smith v. Brown, 2018 NY Slip Op 28299, the plaintiff commenced an action in Supreme Court, Bronx County, to recover for personal injuries allegedly sustained in a motor vehicle accident.

At the discovery stage, one of the defendants served plaintiff with a notice to admit, seeking to admit: (1) whether plaintiff owns and maintains an Instagram account with a specific “handle”; (2) whether the account associated with that handle was changed from a public to private account setting after a specific date; (3) whether plaintiff was depicted in a number of specified photographs obtained from the Instagram account — and whether those photographs were taken after the accident. Defendant served copies of each of the 33 photographs for which admissions were sought along with the notice. The photographs appeared to depict a young woman (presumably the plaintiff), engaged in different activities, such as riding in a car, climbing a rock, and walking on a boardwalk.

Plaintiff filed a motion seeking a protective order to vacate or strike the notice to admit arguing that defendant was attempting, impermissibly, to use the notice to admit in lieu of other disclosure devices, such as a deposition. Plaintiff also argued that the notice to admit was improper because it sought admissions on material issues in the litigation. Defendant opposed the motion, arguing that the admissions sought in the notice to admit were relevant to the issue of the extent of plaintiff’s damages, and not to any ultimate questions of fact or any legal conclusions.

The Court agreed with defendant, and plaintiff’s motion was denied. The Court ultimately held that the notice did not seek admissions as to any ultimate conclusions (such as which driver or drivers were negligent) or information of a technical, detailed or scientific nature. Therefore, those matters on which defendant sought admissions could be explored at a deposition and were thus within the proper scope of a notice to admit.

Social Media is now, much like post-deposition surveillance, a valuable tool in gauging a plaintiff’s credibility, and also, mitigating a future pain and suffering claim.   Thanks to Tyler Rossworn for his contribution to this post.  Please email Brian Gibbons with any questions.

Decedent’s Statements to His Wife Admissible as Hearsay Exception, Defeating Estate’s MSJ (NY)

In Caminiti v Extell West 57th Street LLC, 2018 WL 5914129, 2018 N.Y. Slip Op. 07667 (1st Dep’t 2018), the decedent in a wrongful death Labor Law suit made a statement to his wife in the ER after an accident that he “should have known better” than to use a ladder as he did.  He later died.  Plaintiff, the administratix of the deceased’s estate, sued under Labor Law §240(1) and Labor Law §241(6) against defendants, the owner, developer, and general contractor of the project.

Plaintiff made a motion for partial summary judgment on Labor Law §240(1) and the defendants made a motion for summary judgment to dismiss the complaint.  Judge Arlene Bluth in New York Supreme, granted plaintiff’s motion and denied the defendants.  Upon appeal, the First Department modified the order to also deny the plaintiff’s motion and granting defendants’ motions as to the Labor Law §241(6) claims based on several Industrial Code sections.

The First Department ruled that the lower court properly ruled that the now-deceased husband’s statement regarding his accident was admissible as a declaration against interest in order to establish his wife, as an adminstratix of the deceased husband’s estate’s, prima facie case under Labor Law §240(1).  The statements showed, as a matter of law ,that the ladder started to move while he was working on it, and when he tried to stabilize the ladder, it tipped and struck him in the chest.  The First Department ruled that plaintiff was not required to present further evidence that the ladder was defective.

However, the defendants raised triable issues of facts as accident reports showed that while he was on the ladder, he felt chest pains and his legs became “unsteady” or “wobbly.”  Furthermore, his co-workers saw the ladder in an upright position about 10 feet away from the decedent when he expressed that he was suffering chest pains.  As such, plaintiff’s partial motion for summary judgment on Labor Law §240(1) was dismissed.

Furthermore, the First Department ruled that since plaintiff failed to specifcy any particular subsection or subdivisions of the provisions Industrial Code sections, the Labor Law §241(6) claim as to those provisions were considered abandoned. As such, Defendant’s motions for summary judgment to dismiss the complaint was granted as to those provisions.

The fact that hearsay evidence from the deceased was admitted through the administratix’s testimony shows the value in a plaintiff administrator’s testimony, not just to damages, but potentially to liability.  Proactive defense counsel should be wary of such testimony while taking depositions and be ready to cross-examine the administrating witness attempting to bring in any hearsay evidence from the deceased.

Thanks to Jonathan Pincus for his contribution to this post.  Please email Brian Gibbons with any questions.