Issue of Fact Precludes Assumption of Risk Summary Judgment Argument (NY)

In the matter of Lee v Brooklyn Boulders, LLC (2017 NY Slip Op 08660), the Second Department Appellate Division confronted, and further diminished, the applicability of the primary assumption of risk doctrine.

Plaintiff was allegedly injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats, which according to plaintiff, was covered by a piece of Velcro. Defendants moved for summary judgment dismissing the complaint and the plaintiff cross-moved to add a demand for punitive damages.  Defendants argument that plaintiff signed a liability release The Supreme Court, denied the motion and the cross motion and all parties appealed.

The Appellate Division found that contrary to the defendant’s contention, the release that the plaintiff signed was void under the General Obligations law because the defendant’s facility was recreational in nature and therefore did not bar the plaintiff’s claims.  The Court noted that by engaging in a sport or recreational activity, a participant consent to those commonly appreciated risk that are “inherent in” and “arise out of the nature of the sport generally and flow from such participation.”  Here however, the defendant failed to establish, prima facie, the doctrine of primary assumption of risk applied.  The plaintiff’s deposition testimony revealed triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the inured plaintiff accident involved an inherent risk of rock climbing.  Therefore, defendant’s motion was properly denied.  The Court also found that the Supreme Court providently exercised its discretion in denying the cross motion for leave to amend the complaint to add punitive damages.

This case illustrates that to the extent a party seeks to apply assumption of risk proactively in dispositive motions, the court will stridently parse the record for triable issues of fact.  While assumption of risk continues to endure in a comparative setting, its applicability on a primary basis is becoming fewer and further in-between.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Ten Years After — Court Dismisses Complaint after LONG period of inactivity (PA)

I may be dating my musical tastes with this post, but the 1970’s rock band, Ten Years After, once had a hit single, called “I’d Love to Change the World.”   Well, if a plaintiff is looking to change the world for his client, he better not let his claim sit still for 10 years… which is what happened in Erie County, Pennsylvania, the Superior Court of Pennsylvania.

In July 2007, Golab v Knuth was commenced after Golab was injured in a May 2005 automobile accident.  The parties exchanged pleadings and discovery and the case was scheduled for trial in October 2009.  However, the case was never certified and therefore never proceeded to trial, prompting the trial court to publish a Termination Notice in October 2015.

The Termination Notice was published in the Erie County Legal Journal and informed the parties that the case would be terminated due to lack of docket activity, pursuant to Pa.R.J.A. 1901, unless the parties appeared at a November 30, 2015 hearing and showed good cause as to why the case should not be terminated. There was no Erie County Local Rule in effect at the time to govern implementation of Pa.R.J.A. 1901.

Neither party nor their respective counsel appeared at the November hearing, and thus the trial court terminated the case in December 2015.  In November 2016, Golab filed a motion to reinstate the case citing various health issues to both she and her attorney, as well as arguing that neither she nor her attorney ever received notice of the Termination Notice.  The court reinstated the case on November 30, 2016, over an objection by Knuth.  Knuth subsequently filed a motion for reconsideration to reinstate the Termination Order in December 2016.  In March 2017, the trial court granted Knuth’s motion and reinstated the Termination Order, terminating the case.

Golab then moved to reinstate the case, which the trial court denied.  Golab appealed the court’s denial of her motion to reinstate, arguing that: 1) the trial court erred in dismissing the case in December 2015 without first enacting a Local Rule to implement Pa.R.J.A. 1901; 2) the one-time publication in the Erie County Legal Journal did not constitute adequate notice of the Termination Notice; and 3) the trial court erred in failing to make findings of fact as to the whether good cause for the lack of activity was shown.

The Superior Court of Pennsylvania affirmed the trial court’s order, because a plaintiff has an affirmative duty to prosecute her action within a reasonable time and it is the plaintiff, not the defendant, who bears the risk of not acting within a reasonable time to move a case along.  In response to the three issues brought by Golab in her appeal, the Superior Court explained that the lack of a local rule implementing Pa.R.J.A. 1901 did not render the trial court powerless to proceed under said rule, and that the publication of the Termination Notice was sufficient under Rule 1901.  Additionally, the trial court was not required to conduct an evidentiary hearing concerning the reasons for Golab’s delay, particularly when the docket was inactive for nearly seven (7) years.  This prolonged back-and-forth saga is a helpful reminder for clients and attorneys both to remain cognizant and vigilant to ensure that their cases are actually brought to a resolution.

The chorus of the Ten Years After song, which you may have heard, goes, “I’d love to change the world… but I don’t know what to do.”   For purposes of this case, you need to at least do something to avoid a dismissal.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Lengthy, “Deliberate” Deliberations Are Not Cause for a Mistrial (PA)

On December 8, 2017, the Superior Court of Pennsylvania affirmed a defense verdict on appeal in Berry v. Dickson et al. Plaintiff Berry sued several defendants, alleging negligent maintenance of a building after a piece of ceiling collapsed and injured Berry.  The jury ultimately returned a verdict for the defendants and Berry appealed on the issue that the jurors were deadlocked and that the trial court erred by instructing them to return to deliberations.

After an exhaustive three days of deliberations, the trial judge dismissed the jury and told them to return on Monday after the weekend.  He instructed them that if they were unable to return a verdict on Monday due to being “hopelessly deadlocked” that he would then declare a mistrial.  On Monday morning, the jurors requested to hear the charges re-read and then returned a defense verdict late in the afternoon.  The plaintiff appealed, arguing that the trial judge effectively coerced the jury after instructing them to resume deliberations after they indicated twice before that they were unable to reach a verdict.

The amount of time that a jury is kept together is a matter of discretion for the trial judge and will only be reversed for abuse of discretion or if there is evidence that the judge coerced the jury.  Issues to look at are the charges, the complexity of the issues, the amount of testimony, the length of trial, and the solemnity of the trial.

In the instant case, the Superior Court found that the issues were complex in that the plaintiff alleged injuries to his spine and other parts of his body.  In addition, the jury had to consider testimony from three fact witnesses and two experts.  The court also noted that the jury mentioned that they were deadlocked but not “hopelessly deadlocked”.  As such, the court affirmed the defense verdict.

This case demonstrates the importance of handling a jury during trial and to provide them with adequate jury instructions, and allowing them to deliberate appropriately.  The alternative to this verdict would have been a mistrial, and likely, a retrial within a few months.   While the plaintiff was obviously displeased with the result, lengthy deliberation is a function of the justice system, and not a grounds for reversal.  In fact, the word “deliberation” is a derivative of the word, “deliberate,” which means measured or cautious. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.


Second Department Reiterates Defendants’ High Burden in Negligent Supervision Case (NY)

In K.J. v. NYC BOE., the Second Department recently discussed the high threshold required to prevail on a motion for summary judgment in a negligent supervision case.

The case arose from an incident in December of 2014, when the 14 year old plaintiff was allegedly assaulted by four fellow students in a stairwell leading to the cafeteria of Lincoln High School in Brooklyn. The plaintiff sustained various injuries, including a fractured orbital bone. Plaintiff’s father, Lonnie Jefferson, brought suit on behalf of his son, and individually, against the City of New York, the Board of Education, and the New York City Department of Education (DOE), alleging negligent supervision. The defendants moved for summary judgment, basing their motion, in part, on the plaintiffs’ 50-H hearing testimony and the deposition testimony of a school safety officer. The infant plaintiff testified that while he was in the cafeteria, one of the assailants threw an object at him. When the plaintiff went over to the assailants’ lunch table, he was challenged to a fight. The plaintiff refused to fight and returned to his lunch table without reporting the incident to any teachers. At the end of lunch, the plaintiff left the cafeteria doors and walked into the stairwell to go to his next class. The four assailants cornered the plaintiff punched and kicked him for approximately 25 seconds. Afterwards, the plaintiff found a dean who took him to the nurse’s office. There were no school safety officers, school personnel, or security cameras in the stairwell at the time of the incident.

At his deposition, the school’s safety officer testified that his duties did not include supervising the cafeteria during lunch, which was done by the deans. As a general matter, during the break between class periods, teachers stood in the hallway while the school safety officers patrolled the hallways to make sure the students were headed to class. The officer did not witness the assault, but was radioed by the dean to help to the plaintiff. He also did not know the number or identities of the students who attacked the plaintiff, although he recalled seeing at least one of the assailants in the principal’s office on a prior occasion. The officer testified that he had a supervisor who was in charge of school safety personnel in the building, but the defendants provided no evidence from that supervisor or anyone familiar with the students involved in the assault.

The Supreme Court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint, and the plaintiffs appealed. On appeal, the Second Department recited the rule that “schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” To determine whether school officials breached their duty to supervise, the first question is whether they had “sufficiently specific knowledge or notice” of the dangerous conduct. Broadly, this requires that the school have actual or constructive notice of prior similar incidents, and injuries that result from the unanticipated or impulsive actions of a student will not result in a finding of negligence.

The Second Department found that defendants failed to provide evidence showing that they lacked notice the assailant’s prior violent behavior. Further, the safety officer’s testimony regarding the disciplinary history of one of the assailants created triable issues of fact as to whether the defendants had specific knowledge of any dangerous propensities. Lastly, they failed demonstrate the general security measures at the school, including the number of school safety officers on duty, their assignments in the vicinity of the cafeteria and stairwell, or the frequency of violent incidents.

Not only did defendants fail to demonstrate their lack of notice, they also failed to eliminate all triable issues to fact as to the second critical point: whether the alleged inadequate security proximately caused the incident. To determine causation, the court must determine whether “the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence.” Here, the defendants failed to show that the incident occurred in such a short time span that even the most intense supervision could have prevented it.

Accordingly, the Second Department held that defendants failed to establish their prima facie entitlement to summary judgment as a matter of law. Interestingly, the Court noted that the trial court should have been able to reach this conclusion regardless of plaintiff’s opposition papers. Likely, this is a result of defendants’ failure to offer testimony or a sworn affidavit from anyone with knowledge of the incident, the assailant’s past behaviors, or the school’s general security policies.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff Assumed Risk of Funplex Foam Balls (NJ)

In Osei-Amoako v. Stafford FEC, Plaintiff broke her ankle when she slipped and fell on foam balls while supervising her four-year-old son in an amusement attraction, Foam Frenzy, at the Funplex owned and operated by defendant. The court granted summary judgment to defendant, holding that plaintiff’s injury was not caused by defendant’s breach of duty, but due to her own conduct.  Plaintiff appealed from the order, contending that the judge erred because the facts supported plaintiff’s theory of liability against defendants.

The Foam Frenzy is an amusement attraction for children. There are 8,000 to 10,000 foam balls throughout the attraction which is set up so that participants can chase each other, throw foam balls at each other, and dodge foam balls while playing in the attraction. Plaintiff alleged that she slipped and fell on one of more than fifty foam balls in her immediate area while walking toward her son. She alleged that the foam balls blended into the carpeted floor.  Additionally, she witnesses two Foam Frenzy employees attempting to fix an inoperable vacuum that was used by participants to suck up and recirculate the loose foam balls back onto designated areas.

The court recognized that defendants owed plaintiff a duty of reasonable care to maintain a safe environment. However, the court held that defendants did not breach that duty and there was no dangerous condition in the Foam Frenzy.  The court opined that the main component of the Foam Frenzy was to play in an area overfilled with foam balls.

The appellate court affirmed the trial court’s holding, as plaintiff’s injury was the result of slipping on a foam ball, and no reasonable juror could find that defendants breached its duty of care when plaintiff was engaged in the very activity that she and her son expected.  Essentially, she assumed the risk inherent in a foam ball kiddie park… whatever risk that may have been.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Vague Discovery Responses Insufficient to Withstand Dismissal (NY)

One of the most important parts of our practice, especially in terms of litigation, is the receipt of discovery and providing discovery to our adversaries. Document and information exchange often leads to motion practice where a party refuses to provide certain documents and information or is delinquent in providing them.

More often than not, if a party can show that they have made efforts to respond, either by partial responses or correspondence, a Court will not grant a motion to dismiss for failure to provide discovery. Often, attorneys will provide just the bare minimum by way of a response but that will be sufficient to withstand the “willful and contumacious” standard of conduct which results in dismissal.

It appears, from the recent decision of the Appellate Division, Second Department, that bare minimum, nonspecific, or non-complete discovery responses may no longer be enough to withstand dismissal. In Corex v. Janel Group of New York, Inc., 2016-07342 (2d Dept. 2017), plaintiff was given a final deadline to provide specific responses to the defendants demands and sworn responses to interrogatories. The Order included language which directed dismissal of the claims if full and adequate discovery was not received.

At the zero hour, plaintiff electronically filed unsworn, unsigned and undated affidavits stating that documents and information were lost by a prior principal of the plaintiff company and as such proper responses could not be provided. The Court found that unsworn, unsigned and undated affidavits were insufficient to satisfy responses to the discovery demands or adequate excuse for failure to adequately respond. The Appellate Division concurred and found that the initial failure to respond per the Preliminary Conference Order and subsequent failure to provide responses with sufficient specificity warranted dismissal of the case.

This decision confirms a recent trend within the venues in which we practice where Court’s are cracking down on discovery disputes, delays in completing discovery and parties who willfully delay the progression of a case.  The scrutiny a Court applies to discovery non-compliance is like a pendulum, and recently in New York, the pendulum is swinging toward compliance.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Bus Company and Municipality Dismissed from Slip & Fall Suit for Distinct Reasons(NJ)

Plaintiffs have the burden of proof when establishing the negligence of defendants.  In Frison v. A-1 Limousine et al., plaintiff appealed from two orders granting summary judgment: one in favor of Trenton Mercer Airport, Mercery County, and Mercer County Department of Transportation and Infrastructure, and one in favor of non-public entity defendants, A-1 Limousine, Inc. and Andre Williams.

Plaintiff was on a shuttle bus at Trenton Mercer County Airport, which she was taking to a remote parking lot used by the airport’s customers. The driver of the bus, defendant Andre Williams, dropped plaintiff off in an unlit area of the gravel-surfaced lot. As plaintiff exited the bus, she lost her footing and fell to the ground. Plaintiff sustained a tear in the meniscus of her left knee and fractured a bone in her right foot.  Both defendants filed a motion for summary judgment, and the trial court granted both motions. Plaintiff subsequently appealed, arguing that defendant A-1 acted unreasonably in dropping plaintiff off in a “dangerously dark portion of the gravel parking lot” and alleging that the Trenton Mercer Airport acted in a palpably unreasonable manner by not installing lights in the parking lot.

The appellate court first addressed plaintiff’s arguments with respect to the public entities.  The appellate court found that the heightened “palpably unreasonable” standard applies to dangerous conditions on public property and is intended to comport with the principles of liability used by the courts for local public entities in their capacity as landowners. Additionally, the appellate court opined that the Torts Claim Act defined a “dangerous condition” as a condition that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. Applying that standard, the court concluded that plaintiff failed to demonstrate that a “dangerous condition” existed in the parking lot. Plaintiff provided no proof that the condition was dangerous such that it presented a substantial risk of injury.

With respect to plaintiff’s claims against A-1, the court found that plaintiff failed to establish a legal basis to impose a duty of care under the circumstances presented. Plaintiff offered no proof that the vehicle’s condition caused her to fall. A-1 neither owned nor had the duty to maintain the parking lot. Additionally, plaintiff presented no proof that A-1 had notice of any condition of the lot as to implicate a duty to warn. As such, the appellate court affirmed the trial court’s decision on both motions and opined that defendants cannot be liable due to plaintiff’s failure to use due care.

Considering the lessened duty for municipalities, and the lack of any duty for the bus company, plaintiff simply fell in an unfortunate place for her to recover.   The defendants held plaintiff to her burden here, and prevailed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Expert Not Needed to Overcome Summary Judgment (PA)

The Pennsylvania Superior Court recently vacated two orders of summary judgment following review of the trial court’s determination regarding the existence of a genuine issue of material fact.  In Medsger v. Hawaiian Tan, No. 1635 WDA 2016,  Nov. 20, 2017, the Superior Court held that the trial court’s granting of summary judgment for defendants was erroneous, and vacated the orders as well as remanding the case for trial.

The case arose from an incident in which defendant Matkovich, a patron of Hawaiian Tan salon, was turning left onto a highway after exiting the salon.  Plaintiff Medsger was traveling on his motorcycle northbound on the highway.  While turning onto the highway, Matkovich’s vehicle collided with Medsger, causing serious injuries to Medsger.  At the time of the collision, there were five temporary yard signs advertising Hawaiian Tan’s business that were located along the highway between the exit Matkovich was using and the entrance to the highway.  Plaintiff alleged that Hawaiian Tan was negligent in placing the sings too close to the highway in violation of local ordinances.  Plaintiff also alleged that the property owner of the building in which Hawaiian Tan was located was negligent by permitting Hawaiian Tan to erect and maintain the signs too close to the highway.

The trial court granted summary judgment in favor of Hawaiian Tan and the property owner, concluding that Plaintiff failed to present a prima facie case that the placement of the advertising signs contributed to the accident by blocking Matkovich’s view of the highway.  In granting defendants’ motions for summary judgment, the trial court rejected an affidavit by Plaintiff’s son which attached several photographs depicting the location of the signs.  The trial court ruled that the affidavit was an unscientific recreation of the accident scene and that it lacked assurance that it accurately reflected Matikovich’s viewpoint at the time of the accident; thus failing to raise a genuine issue of fact as to whether the sign placement impaired Matkovich’s view of the highway.

On appeal, the Superior Court applied a de novo standard of review as to the presence of a genuine issue of fact.  In reversing the trial court’s granting of summary judgment, the Superior Court stated that, under Pennsylvania law, credibility and weight of witness testimony are not proper considerations at summary judgment stage, but rather that they fall under the purview of the jury.  The Superior Court further stated that, when viewing the facts in the light most favorable to Plaintiff (the non-moving party), the information and photographs contained in the affidavit created a genuine issue of fact.  The court noted that, at the summary judgment stage, it was irrelevant whether Plaintiff’s son qualified as an expert witness, and that Plaintiff was entitled to introduce the photographs and have the jury weigh the credibility of the affidavit.  In its opinion, the PA Superior Court provides a concise and helpful articulation of the Pennsylvania standard for summary judgment, while also citing the specific examples of layperson’s affidavits and photographs from the scene of an accident.

The reality is, this decision is likely good news for plaintiffs in PA, who are seeking to avoid incurring expert witness fees at the motion stage.  Thanks for Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


Unintentional Destruction of Security Footage is No Excuse (NY)

In personal injury cases the existence of security footage of the incident itself is rare, often due to the length of time between an accident and the commencement of a lawsuit. In many instances, especially where a defendant may not even know an accident occurred, the footage is erased within days or hours of the accident and irretrievable at a later date. Normally, that would not result in a finding of spoliation.  However, where a party did maintain the evidence initially, and it was later destroyed, the outcome may not be so favorable.

In Eksarko v. Associated, 2017 Slip Op 07975 (2d Dept. 2017), plaintiff alleged that she slipped and fell on a grape that had fallen onto the floor of the defendant supermarket. The supermarket, having been notified by plaintiff at the time of the accident that she was injured, pulled and saved the footage of the accident caught on the store’s security video system.

Shortly after commencement of the lawsuit, the store was undergoing renovations when the computer that was storing the footage was destroyed and could not be retrieved. This was conveyed to plaintiff through counsel and through testimony of the Store Manager. When the defendant moved for summary judgment plaintiff cross-moved seeking sanctions for the defendants alleged spoliation of evidence due to the destruction of the video footage.

The Appellate Division overturned the lower Court’s decision and denied the defendants’ motion for summary judgment and granted plaintiff’s cross-motion for sanctions against the defendant. The Court found that even where evidence was destroyed negligently, versus intentionally, if a party can show that the evidence was relevant to their claim or defense the Court can impose sanctions against the party that failed to preserve the evidence.

The Appellate Division found that plaintiff established that the footage was relevant to her claims and to defeating the defendant’s motion on notice and as such sanctions against the defendant were warranted. Due to the fact that plaintiff had other evidence to establish her claim and that the spoliation was not intentional, but negligent, the Court determined that it would not strike the defendants Answer, but rather would direct an adverse inference charge at trial related to the destroyed footage.   The message is clear — if you have notice of a claim and of the existence of footage, save that footage!  And as attorneys and claim professionals, we need to remind insured clients of their duties to preserve such footage.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

You Only Plead Twice – Second Department Upholds Right to Amend Complaint to add Wrongful Death Seven Years Later (NY)

In Assevero v Hamilton & Church Props, the Second Department recently allowed plaintiffs to amend their 2008 complaint to include new allegations of wrongful death after the plaintiff passed away in 2015 – seven years after the underlying accident.

The case arose from a 2007 accident in which Hugh Assevero sustained injuries while working at a renovation project at a building owned by the defendants. Assevero alleged that he was descending an unsecured ladder, which shifted suddenly, causing him to fall from the third floor of the building to the basement. He commenced an action in 2008 to recover damages based upon, inter alia alleged violations of Section 240(1) and 241(6) of the Labor Law. Following the completion of depositions, Assevero moved for summary judgment on his 240(1) claim, and the defendants cross-moved for summary judgment dismissing the 240(1) and 241(6) on the basis of the homeowners’ exception. In 2012, the court granted defendants cross motion to dismiss the statutory claims and denied Assevero’s motion. Assevero appealed. Several months after the court partially granted the defendants’ cross-motion – i.e., during the pendency of his appeal –Assevero died. His wife substituted in as administrator of his estate. Approximately three years after Assevero’s death, the Second Department issued a decision on Assevero’s appeal, and denied the defendants’ summary judgment motion, finding that they failed to make a prima facie showing that their home qualified as a two family home.

Then, approximately three months after the Second Department’s original decision, the plaintiff moved the Supreme Court for leave to amend the complaint and add a new cause of action for Assevero’s wrongful death. The plaintiff argued that Assevero died as a result of “complications of treatment for pain resulting from” his fall from the ladder. In support of her motion, she submitted Assevero’s autopsy report, which indicated that the cause of his death was “acute intoxication due to the combined effects of fentanyl, benzodiazepines, lidocaine and cyclobenzaprine,” and that the manner of death was “misuse of prescription medication.” The Supreme Court granted the plaintiff’s motion to amend the complaint, and defendants appealed.

Now before the Second Department for the second time, the justices noted that under the CPLR, “leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit.” The Court went on to note a movant’s low burden in these situations, explaining, “leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt.” In the case at bar, the Second Department held that because Assevero died during his appeal and its prior order reinstated the causes of action alleging violations of §§ 240(1) and 241(6), the defendants failed to demonstrate surprise or prejudice resulting from the delay in asserting the wrongful death cause of action. Further, the Court held that the plaintiff’s the proposed amendment was “neither palpably insufficient nor patently devoid of merit.”

Perhaps what is most striking about this outcome is not the application of the law, but the underlying facts and the significant delay. Of course, this goes to show that even where a new allegation – especially in the case of wrongful death – significantly alters a defendant’s valuation of the case, courts mean it when they say, “leave to amend a complaint should be freely given.”  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.