Category Archives: Litigation

The Customer is Sometimes Wrong (PA)

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In Thomas v. Family Dollar, the plaintiff was shopping in the Family Dollar store when she slipped on a thick, yellow substance next to a broken glass bottle.  She filed a complaint in state court, but it was removed by the defendant to federal court.

Plaintiff alleged that the Family Dollar was negligent in breaching its duty to keep its premises clear of substances on the floor.  The Family Dollar moved for summary judgment, arguing that the substance was an open and obvious condition and it owed the plaintiff no duty of care.

In deciding on the motion for summary judgment, the court noted that it was uncontested that the plaintiff was a business invitee, and that Pennsylvania law limited the duty of care owed to business invitees.  Plaintiff acknowledged that there were no visual obstructions surrounding the liquid that would have concealed it from her view, but argued that she was otherwise focused on the products displayed on the shelves.  The Court, however, stated that it was Hornbook law in Pennsylvania that a person must look where she is going and further noted that other Pennsylvania courts have rejected plaintiff’s argument.  The Court observed that although a lesser degree of attention was required of customers in stores than those walking along sidewalks, the general rule still applies that where one is injured as a result of a failure on her part to observe and avoid an obvious condition, she would not be heard to complain.

The Court found that the substance that plaintiff slipped on posed an obvious condition and its danger should have been readily apparent to a person exercising normal perception and judgment.  Therefore, the Court found that the Family Dollar had no duty to plaintiff, and granted its summary judgment motion.  The Court further noted that the plaintiff failed to prove that the Family Dollar had adequate notice of the condition to breach a duty of care. Thanks to Alexandra Perry for her contribution to this post.  Please email Brian Gibbons with any questions.

Second Department Limits Assumption of Risk Doctrine in Football Injury (NY)

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In M.P. v. Mineola Union Free School District, the Second Department reversed a lower court decision granting summary judgment to the defendant. Plaintiff was a nine year old student who was playing touch football at recess and was injured when, going for a catch, he crashed into playground equipment.

The defendants argued that the infant plaintiff assumed the risk of playing football on a field adjacent to the playground equipment and that any negligent supervision was not the proximate cause of his injuries.  Defendant cited to plaintiff’s testimony that he plays in the area all the time at recess despite warnings to stay away from the school recess monitors.

The Second Department overturned the dismissal of the suit, because the school district failed to meet its burden in proving inherent risk, and failed to establish, prima facie, that its alleged negligent supervision in permitting the students to play football near the playground did not “create[ ] a dangerous condition over and above the usual dangers that are inherent in the sport.”

The Second Department ruled despite testimony from the plaintiff that he and his friends routinely disregarded the boundaries set by school employees for the playing area, and would play outside the designated boundaries on a portion of the field that was on the edge of an adjacent playground.

The Second Department also noted that plaintiff’s age (9 years old) was too young to “appreciate the risks involved” in playing  touch football.   We suspect there were recess monitors in the schoolyard — possibly volunteers — who “let it slide” when they saw the children playing football near the equipment.

If we might editorialize for a moment, this seems to us like a case where the “call on the field” was correct, and the appellate court opted to hold the school district to an unreasonably high standard.  Thanks to Paul Vitale 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)

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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.

Plaintiff’s Claim Dismissed After Counsel Ignores Court Order (NY)

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In Soto v Chelsea W26, LLC (2018 NY Slip Op 08170), the Appellate Division sent a message that cursory excuses for disregarding Court Orders or opposing motions will not be tolerated.

The plaintiff, Missael Soto, filed a lawsuit alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence. In April 2015, the defendants served an Answer and initial discovery demands.  In November 2015, a preliminary conference was held in Queens County Supreme Court, with an Order issued, directing the plaintiff to serve a Bill of Particulars within 30 days.  The plaintiff did not comply, and six months later, in May 2016, two separate Court Orders required the plaintiff to serve a Bill of Particulars and responses to the initial discovery demands on the defendants.

In June 2016, the defendants moved pursuant to CPLR 3126(3) to strike the complaint based upon the plaintiff’s failure to produce a Bill of Particulars and responses to the combined discovery demands. The plaintiff did not file any opposition to this motion.  As such, by Order entered November 7, 2016, the Supreme Court granted the defendants’ unopposed motion pursuant to CPLR 3126(3) to strike the Complaint.

Then, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the Order striking the Complaint, arguing that a law office failure resulted in the per diem attorney hired to cover the motion appearance, failing to appear in Court. But the Supreme Court denied this motion, resulting in the plaintiff appealing this decision to the Appellate Division, Second Department.

The Appellate Division affirmed the denial.  To vacate an order, the plaintiff must 1) demonstrate both a reasonable excuse for the default and 2) a potentially meritorious opposition to the motion. The Appellate Division took issue with the first prong of this standard, the reasonable excuse.   Regardless of whether the firm’s per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff’s attorney made a conscious decision to send a per diem attorney on the motion’s return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition.  Plaintiff’s attorney’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse.  The Appellate Division affirmed the Supreme Court’s denial of plaintiff’s motion to vacate the Order striking the Complaint.  Thanks to George Parpas for his contribution to this post.  Please email Brian Gibbons with any questions.

NJ Court Dismisses Plaintiff’s Claim against Parent (NJ)

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A motion for summary judgment should only be granted when the record reveals no genuine issue as to any material facts.  A recent New Jersey Appellate Court decision examined whether conflicting expert reports served to create a genuine issue of fact to overcome summary judgment.

In Platvoet v. Mancini, the plaintiff sued her own mother after she suffered an injury when she fell into the pool on her mother’s property.  Plaintiff’s engineering expert found that the pool’s deck was a “dangerous condition,” violated applicable codes, and that the defendant should have warned the plaintiff of the dangerous condition on the property. Defendant’s expert disagreed on the condition of the property, whether defendant should have warned the plaintiff, and the cause of the accident.

The plaintiff appealed the trial court’s dismissal of her claim, arguing that the conflicting expert opinions created genuine issues of fact that precluded summary judgment.  The Appellate Court upheld the dismissal of the plaintiff’s claim, noting that there was absolutely no evidence that the alleged dangerous condition of the pool had anything to do with the accident, and it was undisputed that the plaintiff was thoroughly familiar with the pool configuration.

This case is important because it reveals that the mere existence of an expert report may not be enough to create a genuine issue of material fact sufficient to overcome dismissal of a claim.  The plaintiff still needs to connect the expert’s findings to the cause of the accident.  Hopefully the lawsuit did not dominate conversation at this family’s Thanksgiving dinner!

Thanks to Heather Aquino for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Second Department Affirms Labor Law SJ Denial Due to Conflicting Accident Accounts (NY)

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In Giannas v 100 3rd Ave Corp, Plaintiff was repairing fencing on the fourth floor of a building when he noticed what appeared to be a metal stud nailed across an open window. Plaintiff crawled onto the scaffolding outside the building  to knock the stud into the building by hitting it with his hammer. However, the scaffolding moved toward the street, causing him to lose his balance and fall through the window, into the building.

Plaintiff alleged violations of Labor Law §§ 200, 240(1) and 241(6), and moved for summary judgment on Labor Law §240(1) cause of action but the Court denied the motion. In addition, the Court granted the construction manager’s motion for summary judgment dismissing the complaint as asserted against it. Finally, the Court granted the subcontractor scaffolding company’s motion for summary judgment dismissing the Labor Law §§ 200, 240(1), and 241(6) causes of action, and denied that branch of its motion which was for summary judgment dismissing the common-law negligence cause of action. Plaintiff and the scaffolding supply and installation company appealed the Court’s decision.

On appeal, the Second Department affirmed the lower court’s order granting the construction manager summary judgment on Labor Law §240(1) reasoning that the construction manager had no control of the means and methods of work under the contract and did not control the work or supervise safety.  The Appellate Court further affirmed the lower court’s denial of plaintiff’s motion for summary judgment on Labor Law §240(1)because there were conflicting accounts of how plaintiff fell, including whether he had ever mentioned that the scaffold moved causing him to fall.  Finally, the subcontractor’s motion for summary judgment on common-law negligence was denied because of question of subcontractor’s affirmative negligence for launching an instrumentality of harm under Espinal, which also required denial of subcontractor’s motion on contractual indemnity.

Thanks to Meg Adamczuk for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Does An Email Exchange Constitute Enforceable Settlement Agreement? (PA)

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In Hatchigan v. Kaplin, the Pennsylvania Court of Common Pleas analyzed whether an email exchange resulted in an enforceable settlement agreement.  In brief, the plaintiff filed a lawsuit.  Subsequently, following an exchange of telephone conversations, defense counsel sent an email to the plaintiff offering a settlement amount and also sought a general release and dismissal of the plaintiff’s lawsuit.  Plaintiff’s counsel responded to the email stating “Agreed and accepted.  Plaintiff will end, discontinue, settle accordingly to the defendants’ conditions …”.

In response to the plaintiff’s email, defense counsel drafted a release, noting that the settlement was based on the prior exchange of emails, which the plaintiff signed.  Upon receipt of the signed release, defense counsel requested that plaintiff have his signature notarized.  At which time, the plaintiff advised he no longer agreed to the settlement.  The defendants moved to enforce the settlement.  Ultimately, the court found the agreement to be enforceable.  The court reasoned that in their emails the parties agreed on the essential terms of the settlement, which formed a valid and enforceable contract.

Accordingly, this case reveals that Pennsylvania courts may look to the communications between parties to determine if an enforceable settlement has been reached.

Thanks to Collen Hayes for her contribution to this post.

 

Does Facebook Friendship Warrant a Judge’s Recusal? (NY)

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As social media has become more integrated with our lives over the past twenty years, a myriad of legal issues have come to light ranging from the discoverability of social media records to, now, whether Facebook activity can support a request for judicial recusal.

In Law Offices of Herssein and Herssein PA et al. v. United Services Automobile Association, the Florida Supreme Court ruled 4-3 the mere existence of a Facebook friendship between a judge and an attorney, by itself, is not sufficient to support a demand for recusal.  The Court reasoned judges and attorneys have long diligently exercised discretion in recusal when personal connections exist, and that recusal has always been warranted when the friendship surpasses mere acquaintance.  Mindful of the need to preserve judicial integrity, the Florida high court expanded that social media records could constitute grounds for recusal provided there is ample evidence of social contact between the judge and an attorney or fact witness.

Justice Labarga, who concurred with the majority, penned a short opinion in order to underscore concern over the appearance of judicial impropriety.  While a social media “friendship” may be innocuous, Justice Labarga argued the safest course of action for judges would be to not engage in social media at all, or, failing that, to carefully limit friendships to close friends and family.

The dissent disagreed with the majority’s analogizing of social media and real life friendships, and urged instead a standard prohibiting judges from friending attorneys on social media.   The dissent relied upon a local district court’s decision and the Florida Judicial Ethics Advisory Committee’s opinion recommending staunch regulation of judicial use of social media.  As social media has rapidly become the leading form of communication, the dissent notes many users share ideological musings or newspaper articles.  The mere review of such postings, of which there may be no evidence, could infringe on the impartiality of the judge.  Further, the friend is privy to all sorts of personal information about the judge.  The dissent expressed concern that litigants or their attorneys may seek to curry favor by means of social media and thus determined the reasonable course of action was to either require recusal in all cases in which there is a friend relationship or simply ban judges from social media.

Both the majority and dissent express the same valid concerns, but reach radically different results.  The common overlap, though, is that litigants have the reasonable expectation that any significant personal relationship will be disclosed either for waiver of any conflict or as sua sponte grounds for recusal.  In any case, to the extent no such disclosure was forthcoming, we should be mindful that social media records could map out the extent of an undisclosed relationship and should be used to support a demand for recusal.

Thanks to Chris Soverow for his contribution to this post.

Insurance Disputes Being Filed More Often in Federal Courts

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Lex Machina, a LexisNexis company, announced the release of its first annual Insurance Litigation Report, which encompasses data on more than ninety-three thousand insurance cases pending in federal court since 2009. The Insurance Litigation Report showcases data and tends involving disputes between an insurer and a policyholder, a beneficiary, or another insurer asserting the rights of a policy holder. The report includes analytics from both the broad insurance data set as well as five common insurance types: Automobile, Homeowners, Life, Uninsured/Underinsured, and Business Liability.

The report shows that there has been a major increase in the numbers of filed federal insurance cases in the last several years. The report also confirmed that federal courts are far more likely to rule in favor of insurers than claimants. The two areas that had the biggest jump were automobile claims and homeowner claims. Automobile claims rose by thirty nine percent, uninsured/underinsured motorist claims rose by fifty percent, and homeowner’s claims rose by eighty percent. While claims are going up, insurers tend to be satisfied due to the insurer friendly outcomes in federal courts.

For instance, insurers were victorious in eighty-five percent of duty to indemnify cases and in eighty percent of duty to defend cases. However, if cases went to trial, claimant prevailed more than fifty five percent of the time. We suspect the federal courts offer “incentives” to both plaintiffs and defendants, since plaintiff’s appreciate the expedited nature of federal courts, whereas, insurer-defendants enjoy the “friendly confines” of stricter federal courts and statically more favorable outcomes.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.

Attorney-Client Privilege Potentially Under Siege (NY)

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The Appellate Division, Fourth Department, recently issued a decision that will have severe ramifications on insurance carriers. In Rickard v. New York Cent. Mut. Fire Ins. Co., a supplementary UIM claim, the injured party served a notice to produce for New York Central Mutual’s entire claim file, including the portions of the file that were generated after the action was filed. New York Central Mutual, claiming that the material from after the action was filed is protected, moved for a protective order, or in the alternative, for an in-camera review of the materials. The trial court denied New York Central Mutual’s motion and granted Rickard’s cross-motion to compel the entire claim file. As a result of the trial court’s decision, New York Central Mutual appealed to the Appellate Division, Fourth Department.

The Fourth Department discussed how New York Central Mutual’s objection in response to Plaintiff’s notice to produce was overly broad, in that NYMC should have identified which specific document requests were “palpably improper” instead of asserting that all materials in the claim file generated after the commencement of this action were protected. In the end, the court held that New York Central Mutual failed to meet its burden to secure the protection they requested because of the breadth of the objection. The court said, deciding what parts of a claim file are protected is a fact-specific determination. They added that this will most likely result in an in-camera review.

This case goes against the prior holding of Lalka v. ACA Ins. Co., a 2015 Fourth Department case, where the court held that all documents in the claim file created after an action has commenced are protected from disclosure.

The concern going forward is that the courts will continue to chip away at the attorney-client privilege between insurance carriers and their attorneys. For now, when objecting to demands by citing attorney-client privilege, insurers and their attorneys would be well advised to note specific bases for their objections, rather than issue blunderbuss objections to all such demands.   Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.