Category Archives: Litigation

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

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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)

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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.

Hockey Player Assumed Risk of Injury in Fight (NY)

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Rodney Dangerfield once joked:  “I went to a fight the other night, and a hockey game broke out.”  But unlike Rodney, law and common sense received plenty of respect in Falcaro v American Skating Ctrs., LLC (2018 NY Slip Op 08469).

There, a hockey player was injured during an in-game fight during his amatuer league game, after a referee had pulled him off the pile.  In his lawsuit against the arena and others, the plaintiff claimed it was customary for fights to stop when a referee became involved.  Nevertheless, he kept on fighting and was injured.

Recognizing that a sports participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport and generally flow from such participation,” the court granted the defendants’ motion for summary judgment.  According to the court, the risk of involving oneself in an ongoing fight were inherent in the risks of ice hockey and “perfectly obvious.”

The trial court actually denied the defendants’ summary judgment motion, but on appeal, the 2nd Dept. reversed, citing the primary assumption of risk doctrine.  So instead of a verdict in his favor, the plaintiff will have to settle for a 5-minute major.  Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

 

 

 

GEICO Challenges Deemer Statute in New Jersey

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Geico has challenged a New Jersey State Statute requiring auto policies issued out of state to provide a minimum amount of bodily injury liability coverage when the insured drivers are involved in accidents in New Jersey.  The case is Guerline v. Brian v. Richards, case number 081799, in the New Jersey Supreme Court.

As of December 7, 2018, the New Jersey Supreme Court justices had granted Geico’s petition for certification of a state Appellate Division panel’s August ruling directing the insurer to provide a minimum of $15,000 in bodily injury liability coverage for claims against its Florida-based policyholder who was involved in a motor vehicle accident in Newark, NJ in 2013.

Even though the Florida-based policyholder’s auto policy did not include any bodily injury coverage, the appellate panel found that, under a decades old New Jersey law dubbed the “Deemer statute,” Geico was still required to supply the minimum amounts of such coverage included in a standard auto policy issued in the Garden State ($15,000 per person or $30,000 for more than one person per accident).

The Supreme Court justices will decide the following question: Does the Deemer statute apply to an automobile insurance policy written in Florida for a Florida resident who had an accident in New Jersey, where the Florida policy did not include any bodily injury liability coverage?

The Supreme Court of New Jersey’s decision will have a major impact on motor vehicle litigation in New Jersey. Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

 

 

 

 

WCM Wins Summary Judgment on Melted Ice Slip and Fall

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Recently, Mike Bono & Dana Purcaro of WCM obtained Summary Judgment for their client, in a decision issued by Judge Sherman in Supreme Court, Bronx County on the matter of Diplan v. Ergas, Index #605980/2014. Plaintiff was working at the defendant’s home as a housekeeper when she slipped and fell on water on the garage floor, which was a result of a bag of ice that was recently left in the garage and had begun to melt. The bag of ice was placed in the garage earlier that day by our clients’ daughter who did not permanently reside within the home.

Despite knowing that our clients’ daughter placed the ice in the garage prior to the accident, plaintiff never sought to depose her or amend their complaint to add her as a direct defendant in the action. At the close of discovery, we moved for SJ on the grounds that our clients did not create or have actual or constructive notice of the allegedly dangerous condition. We also pointed out to the court that the condition itself is not the type that would have been present for long enough to place constructive notice onto our clients.

Plaintiff opposed the motion stating that our clients were responsible for the placement of the ice in the garage as it is their home and they are responsible for the negligent conduct of anyone in their home. The Court rejected plaintiff’s argument, and found no triable issue of fact as to whether our clients caused the condition or had notice of the presence of melting ice in the garage. The Court also pointed out that the plaintiff failed to take testimony or amend the complaint to include the non-party daughter who put the ice in the garage despite having knowledge of her existence for several years prior to the submission of the motions.

Please email Dana Purcaro with any questions.

State Farm Must Defend Cyberbully Accused of Instigating Suicide (PA)

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While attending a Pennsylvania High School, Zach Trimbur repeatedly harassed his female classmate, both in person and online.  In a tragic turn, the classmate committed suicide. The classmate’s parents filed a suit in Pennsylvania state court, bringing claims of negligence and wrongful death and survival against Trimbur.

State Farm brought a declaratory judgment action after Trimbur’s parents asked State Farm to defend and indemnify him against the lawsuit by referring to their home insurance policy that provided personal liability coverage. State Farm’s policy covers the cost of defending against claims arising from “occurrences,” which Pennsylvania state law has defined as accidents.

However, on December 11, 2018, U.S. District Judge Mark Kearney sided with the insured and held that State Farm must pay for Trimbur’s defense. According to Judge Kearney, although Trimbur may have intended to hurt the girl, it is not conclusive that death by suicide was foreseeable from his cyberbullying. Judge Kearney further stated that “the true test of whether an accident occurred comes from when the situation is viewed from the perspective of the insured” and from Trimbur’s perspective, suicide was not foreseeable. Judge Kearney declined to answer whether State Farm must also indemnify Trimbur.  And with the duty to defend being broader than the duty to indemnify, indemnification is certainly on the table.  This question may remain unanswered until the close of discovery.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.

Workers’ Compensation Carriers can Subrogate against tortfeasor, even though Plaintiff Couldn’t (NJ)

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On December 14, 2015, David Mercogliano, an NJ Transit employee, was driving a car owned by NJ Transit when he was struck by another motorist. As a result of the accident, Mr. Mercogliano only suffered minor injuries and therefore his injuries did not overcome the verbal threshold.  He was barred from suing the other driver. However, he was still able to receive workers’ compensation benefits through NJ Transit’s workers’ compensation carrier. They paid out a total of $33,625 as compensation for his medical bills and indemnity benefits.

In an effort to recoup the money that was paid out, the workers’ compensation carrier filed a subrogation action against the driver of the other vehicle. A Superior Court judge granted summary judgment against the workers’ compensation carrier, ruling that the Automobile Insurance Cost Reduction Act barred the subrogation claim. The workers’ compensation carrier appealed this decision and the Appellate Division overturned the lower court’s ruling.

Last week, the three-judge panel held that even though Mr. Mercogliano could not recover benefits from his own automobile insurance or sue the other driver for non-economic damages, the workers’ compensation carrier had the right to file a subrogation claim.

Their rationale was all about legislative intent. The court said that the Workers’ Compensation Act applies, not the Automobile Insurance Cost Reduction Act. And if the legislature wanted to bar these claims they would have included that language in the AICRA, which was drafted 87 years after the WCA, but they didn’t.

What does this ruling mean? Well, if it is determined that a plaintiff’s injuries do not meet the verbal threshold in NJ, that doesn’t mean the insurance carrier is in clear. Yes, the insurance carrier won’t need to pay out non-economic damages to the plaintiff, but if the plaintiff was in the scope of his employment at the time of the accident, the motor vehicle insurance carrier needs to be aware of a potential subrogation claim from his employer’s worker’s compensation carrier.

Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

Philadelphia Too Oppressive for Personal Injury Suit (PA)

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The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the transfer of venue from Philadelphia County to Somerset County in Pennsylvania.  In Timothy Watson v. Nick J. Capo and National Delivery Systems, Inc., No. 983 EDA 2018 (PA. Super.), Watson sued Capo and Natl. Delivery Systems following a motor vehicle accident that occurred on the PA Turnpike in Somerset County.  Watson was driving a tractor trailer truck with a passenger, Cindy Weaver; and Capo was driving a tractor trailer owned by Natl. Delivery Systems.  Watson sustained various injuries and was taken to an emergency room in Somerset County.  Officers from Pennsylvania State Police, Somerset County investigated the accident scene and authored a report.

Watson commenced a lawsuit in Philadelphia County.  In response, Defendants filed preliminary objections to transfer the venue to Somerset County based on forum non conveniens.  Both Watson and his passenger reside in Maryland, Capo resides in Fayette County, PA; and Natl. Delivery Systems has a principal place of business in Ellicott City, Maryland as well as a Philadelphia Terminal in Philadelphia, PA.  Defendants argued that Philadelphia constituted an oppressive or vexatious forum because the accident occurred in Somerset County, police from Somerset County responded to the scene and drafted the report, Watson was treated at Somerset County Hospital, Somerset County Courthouse is 237 miles away from City Hall in Philadelphia, and the police officers as well as defendants would have to incur significant expenses for travel, lodging and missed work in order to appear in Philadelphia.  In opposition, Watson argued that Philadelphia was an appropriate venue for litigation and also attached an affidavit from Weaver stating that she would be more inconvenienced by having to travel to Somerset County rather than Philadelphia.  The trial court granted Defendants motion to transfer to Somerset County based on forum non conveniens.

On appeal, Watson asserted that the trial court erred and abused its discretion.  The Superior Court articulated the appellate standard of review for an abuse of discretion and stated that the trial court’s ruling must be reasonable in light of the peculiar facts and also that the lower court’s decision must stand if there exists any proper basis for the trial court’s decision to transfer venue.  The court further explained that, determining whether a forum is oppressive requires consideration of the totality of the circumstances and while distance between the two forums and disruption of the parties’ personal and professional lives are part of the equation, no one factor is dispositive.

The Superior Court agreed with the trial court’s determination that Defendants had met their burden of demonstrating that Philadelphia was an oppressive and vexatious forum.  In support of its decision, the Court cited the fact that Somerset County, where the accident took place and where the officers and initial medical treatment facility were located, was over 200 miles from Philadelphia.

In addition, the court noted that neither Watson nor the Defendants were from Philadelphia County, potential witnesses (including Capo and the responding police officers) suffered a greater hardship traveling to Philadelphia as opposed Somerset County, and the sole connection with Philadelphia is the fact that Natl. Delivery Systems occasionally conducted business in Philadelphia.  Thus, the trial court had a proper basis to grant Defendants’ motion to transfer and did not abuse its discretion.  This case illustrates the importance of utilizing the procedural tool of preliminary objections in Pennsylvania civil practice; as Defendants were successfully able to remove the case from the notoriously ‘plaintiff-friendly’ jurisdiction of Philadelphia County to a more conservative forum like Somerset County.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions

 

 

The Customer is Always Right (NY)

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Retailers should be weary of holiday shoppers this season, particularly in light of the Second Department’s recent decision siding with a customer who tripped and fell on a low table in a Hollister Co. store.

Defendant moved for summary judgment on the basis that the placement of the table was open and obvious, and further that plaintiff walked in an area not meant for ingress/egress. In support of its motion, defendant submitted plaintiff’s deposition transcript, where plaintiff testified that he did not see the table before falling because the store was dark, and the low table was obscured by a taller, larger table placed near it.

The Second Department overruled the lower court’s dismissal, finding that defendant failed to establish, prima facie, that the condition created by the subject table was open and obvious in light of the surrounding circumstances despite defendants submitting evidence as to the lighting conditions and presence of other customers in that area.

The Court also noted that the testimony of defendant’s employees further demonstrated that the area traversed by plaintiff was an “egress,” which made a possible accident more foreseeable.  Thanks to Theresa Dinh for her contribution to this post.  Please email Brian Gibbons with any questions.

Self-Destructive Selfies (NY)

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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.