Category Archives: Litigation

Danger at the Ballfield – Fan’s Fatal Fall Leads to Lawsuit

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On August 29, 2015, the Yankees were up 2-0 against the Braves when Alex Rodriguez was called to pinch hit.  Greg “Ace” Murrey, a 60-year old insurance agent, stood up with many fans to heckle the Bronx Bomber when he lost balance and toppled over the 30” railing to the lower deck.  He was transported to Grady Memorial Hospital and pronounced dead on arrival. Murrey’s fatal fall, the third to befell Turner Field since 2008 (although the 2013 incident was ruled a suicide) has spurred a lawsuit calling into question the appropriate height of guardrails.

According to the 1927 building code, railing heights were required to be a minimum of 26”.  Safety experts now argue that fans are bigger and more overzealous than they were 90 years ago, as such, these outdated safety recommendations need to reflect the changing landscape.  The Braves’ new stadium has 36” railings, but these plans were already in effect prior to Murrey’s fall.  A person’s center of gravity is typically about 39” high and OSHA research dating back to 1976 determined that a 42” railing would be above the center of gravity for 95% of adults.  The problem is compromising railing height with line of sight as fans won’t want to sit in the front row if the guardrail obstructs their view of the game.

Hall of Fame pitcher and president of the Texas Rangers, Nolan Ryan, appeared for a deposition in the Murrey lawsuit, based on remedial actions taken by the Texas Rangers for a similar problem.  Texas spent $1.1M in 2011 to raise their guardrails to 42” after a fan fatality.    In 2010, after the Texas fatality, Turner Field security sent an e-mail to the Braves’ VP of stadium operations who replied, “I hope our specs are not similar to theirs.”  The Texas guardrails were actually half an inch higher than the Braves’.

It is important to remember that the medical examiner found Murrey hyperventilated when he stood, causing his loss of balance.  Additionally, his blood alcohol level was a .104.  But his death comes in a wake of fan related injuries spurring a movement to increase fan safety.  In 2010 at Turner Field, a 6-year old girl sitting behind the Braves dugout was hit in the head by a foul ball, fracturing her skull in 30 places and causing traumatic brain injury.  That case was settled for an undisclosed amount, but baseball Commissioner, Rob Manfred, recommended all teams extend the netting behind home plate to either the near ends of the dugouts, or to any seat within 70’ of the batter’s box which is what all ballparks in Japan do.  The Murrey lawsuit seeks substantive change in railing heights, but also an undisclosed monetary amount for the value of his life.  It is unclear the path this lawsuit will take, but the Braves lost that game, 3-1.

And if I might editorialize for a moment, having been to hundreds of baseball games over the years, I’m always struck by the T-shirt cannon, which sends rolled-up T-shirts into the stands, some of which fall just short of the upper deck railings.  It’s incredibly lucky that no fan has fallen while reaching too far for a T-shirt.

A link to the Atlanta Journal-Constitution is here:  https://www.ajc.com/news/local/family-says-braves-mlb-knew-guardrails-unsafe-before-fan-fatal-fall/QTzudvDnyLRQePAxra5uCN/amp.html

Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Court Puts Muzzle on Dog Bite Claim (NJ)

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Plaintiff, a certified dog groomer, had been grooming defendant’s Golden Retriever for three years. When defendants first brought their dog to plaintiff to be groomed, they provided notice that the dog was “a little problematic.” As such, plaintiff would place a muzzle on defendant’s dog during each grooming session. On June 6, 2013, plaintiff prepared to groom defendant’s dog just as she had done six or seven times prior. She placed a muzzle on the dog, and began to bathe him. There was no indication that he was agitated or aggressive. Suddenly, as plaintiff began to trim the hair around the dog’s rear, he pulled the muzzle off with his paw, whipped his head around, and sank his teeth into plaintiff’s left arm, causing ten puncture wounds. Plaintiff was hospitalized for six days and was out from work for approximately six weeks.

Following the close of discovery, defendants moved for summary judgment. The court, applying the Reynolds case, held in favor of the defendants, ruling that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner unless the dog owner purposefully or negligently conceals a particular known hazard from the independent contractor.  Here, the court was satisfied that defendants provided notice to the plaintiff that the dog tended to be problematic. Additionally, the court noted that plaintiff chose to muzzle the dog each time he was groomed due to the warnings from the defendant.

Plaintiff appealed the ruling of the trial court, arguing that it erroneously held that the groomer assumed the risk of the dog bite and that the judge did not consider that defendants purposefully concealed the dog’s violent propensity from the plaintiff. Additionally, on appeal, plaintiff’s argued that there was no expert report likening dog groomers to veterinarians with regard to assumption of the risk of being bitten by a dog. Plaintiff noted that veterinarians must be licensed, while dog groomers do not need a license.

The appellate court held that the principles in Reynolds are not confined to veterinarians. Instead, the appellate court ruled that Reynolds applies to any independent contractor who agrees to care for a dog.  Further, the court cited plaintiff’s deposition testimony wherein she stated that she was in the commercial dog-grooming business, and being bitten by dogs “goes with the territory.” As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

No Coverage for Damages from Carbon Monoxide (PA)

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A judge in the United States District Court Eastern District of Pennsylvania ruled that an insurance company does not have to indemnify a landlord whose tenants sued over carbon monoxide poisoning,

In Foremost v. Nosam, Foremost sought declaratory judgment stating that it did not owe a duty to defend or indemnify, Nosam LLC in the state court action based on a pollution exemption in its policy.

This case arose from the state court action in which plaintiff and her two children sued their Landlord and the building owner (Nosam LLC) after suffering carbon monoxide poisoning, allegedly from a faulty furnace in Sylvestre’s apartment.

The malfunction in the furnace was allegedly caused by a neighboring chimney collapsing and falling into the plaintiff’s chimney. This allegedly caused a blockage in the heating unit at the plaintiff’s residence, causing the emission of carbon monoxide.

Foremost disclaimed citing the policy which read “We will not pay for bodily injury or property damage…[arising out of the actual, alleged or threatened discharge, dispersal, release, escape of, or the ingestion, inhalation of absorption of pollutants.”  The underlying plaintiffs later claimed that the emission was caused by an accidental fire when the heating system was converted to a gas system, which would trigger the exclusion to the policy exemption.

The Court ruled, “ Although the underlying plaintiffs contend that they did not know the heating system had been converted to gas, there is no suggestion they did not knowingly and intentionally start the December 9, 2015, fire by turning on the furnace…There is no suggestion that any flames, or any part of, this controlled fire extended outside the sealed unit where it was designed to burn…Further, although the chimney collapse may have contributed to the buildup of carbon monoxide inside the residence, the unexpected collapse did not cause the fire. The fire, regardless of whether it was ignited by gas or oil, did not happen by chance or unexpectedly and was therefore not accidental. Although the buildup of carbon monoxide was accidental, it was not released by an accidental fire and the underlying plaintiff’s attempt to conflate the two requires a strained interpretation of that term.”

The salient distinction the Court makes is based on the carbon monoxide emission (obviously) being accidental, whereas the fire was started intentionally.  Because the fire was started intentionally, Formost’s policy exclusion applied, and Foremost owed no duty to defend or indemnify.  Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

Spotlight on Broadway Theater’s Duty to Pedestrians (NY)

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A theatergoer forced into the street due to a crowded lineup loses her bid to be compensated for her injuries that occurred not on that crowded sidewalk, rather in the street.

The First Department has upheld a Manhattan Supreme Court Justice’s grant of summary judgment to defendant landowner in Quigley v Nederlander Org., Inc, where plaintiff injured in front of a Broadway theatre. Plaintiff testified that upon arriving at the theatre, she and her group were directed to join the line to enter the building. As plaintiff followed her group to the back of the line, she stepped onto the street and her heel was caught in a crack between two metal plates causing her to fall. Plaintiff alleged that the theater was negligent because she forced to maneuver her way through a crowded sidewalk onto the street.

Defendant theatre owner, Nederlander Organizations, Inc. d/b/a The Lunt-Fontane Theatre, established entitlement to judgment as a matter of law. Defendant was not on notice of any dangerous crowding condition or of a hazardous condition on the street close to the area where patrons stood in line.

Notably, plaintiff did not identify that an overcrowding condition restricted her movement or that defendant directed her to walk on the street. Plaintiff acknowledged that the sidewalk traffic was made up of pedestrians and patrons and that the crowd was tame. The court noted that, even if the entire width of the sidewalk had been overtaken by the crowd, defendant owner still could not be liable for plaintiff’s injuries absent prior notice of a dangerous condition. Further, it was unforeseeable that directing plaintiff to join the line would have placed her in harm’s way.

Thus, since plaintiff was unable to raise a triable issue of fact as to defendant’s negligence, the First Department upheld summary judgment, based on evidence showing that plaintiff’s own culpable conduct in attempting to strategically maneuver her way through the crowd and ultimately caused her injuries.

We see an increasing number of cases involving pedestrians who claim injuries due to sidewalk configurations. This case clarifies the landowner’s duty for future litigation.

Thanks to Theresa Dinh for her contribution to this post.

The Espinal Defense and Plaintiff’s Pleadings (NY)

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When defending a contractor, understanding what plaintiff’s pleadings fail to allege can allow one to prove the contractor’s entitlement for summary judgment even when affirmative evidence that negates the contractor’s duty to a non-contracting plaintiff does not exist.  In Cayetano v. Port Authority of New York and New Jersey, 2018 WL 5624037, 2018 N.Y. Slip Op 07285 (2nd Dep’t October 31, 2018), the plaintiffs, employees of American Eagle Airlines, Inc., slipped and fell on ice that accumulated near Gate C5 at LaGuardia Airport.  The plaintiffs commenced an action against the snow removal company, CTE Incorporated, among others.  CTE moved for summary judgment, and was denied, upon which they appealed.

As CTE was a contractor who did not contract with the plaintiffs, CTE would normally not owe the plaintiffs a duty of care unless the three Espinal exceptions applied, which are (1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.

The Court ruled that CTE established its prima facie entitlement to summary judgment by showing evidence that plaintiffs were not parties of the on-call snow removal agreement, and that, therefore, they did not owe them a duty of care.  Importantly, the Court ruled that CTE were not required to affirmatively demonstrate that the Espinal exceptions do not apply when the plaintiffs failed to pled facts that would establish their applicability.

In opposition, plaintiff failed to raise a triable issue of fact regarding the instrument of harm exception, as CTE only plowed three days prior to the accident, and thus, claiming that they caused the thawing and refreezing of snow would be merely speculative.  Additionally, the plaintiffs failed to show that they detrimentally relied on CTE’s continued performance of their contractual duties.  As such, the Second Department reversed the lower court’s decision, ruling the CTE’s motion for summary judgment should have been granted.

This case shows how important it is to analyze the pleadings in contractor cases as plaintiffs’ own pleadings, by not including facts that establish the Espinal exceptions applicability, may make establishing the prima facie burden for entitlement to summary judgment easier.  This allows experienced counsel to move for and win summary judgment in cases where evidence may initially seem lacking.

Thanks to Jonathan Pincus for his contribution to this post.

Obscured Open and Obvious Condition May Be a Trap for the Unwary (NY)

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Plaintiff tripped and fell on a “hump” on a baseball field in the Town of Smithtown and injured himself as he was attempting to move through the entrance of the field. This “hump” was caused by the Town’s installation of a drain, which was covered with asphalt. This hump extended to the area between the players’ benches and the entrance to the field on the third base side.

Plaintiff sued the Town of Smithtown in Suffolk County Supreme Court. Smithtown moved for summary judgment, contending that the condition of the hump was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiff appealed.

In Dillon v Town of Smithtown, the Appellate Division confirmed the duty of landowner is to maintain its premises in a reasonably safe condition.  And the Appellate Division confirmed that an exception to this duty exists when there is an open and obvious, and not inherently dangerous condition.  Further expanding on the “open and obvious” principle, the Appellate Division held that a condition that is ordinarily apparent to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Applying that distinction to the facts of this case, the appellate court found that the Town failed to prove that the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident.  In reversing the Supreme Court’s summary judgment decision the court highlighted plaintiff’s testimony that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump.

The case highlights the reality that certain defenses, such as the open and obvious defense and other issues of fact need to be resolved by appellate courts, rather than the trial courts. Litigators presented with such issues should be prepared at an early stage to be mindful of the possibility of appellate practice.

Thanks to George Parpas for his contribution to this post.

ANSI Violation Constitutes Evidence of Negligence, According to NY’s Highest Court (NY)

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In Bradley v HWA 1290 III LLC, plaintiff commenced an action against the building owners and elevator consultant, seeking to recover damages for wrongful death of an elevator mechanic who was electrocuted as a result of coming into contact with a transformer while servicing a malfunction in one of the building’s elevators.

Defendants moved for summary judgment dismissing the complaint, but said motion was denied by Hon. Lucy Billings, allowing plaintiffs to pursue their common law negligence and Labor Law § 200 claims based on the alleged inadequate lighting in the motor room and the alleged lack of a cover over the transformers. The lower court reasoned that defendants failed to demonstrate that the uncovered transformers and the lighting did not create dangerous conditions readily observable to defendants. The Appellate Court reversed the lower court’s decision, holding that: plaintiffs failed to establish liability based on inadequate lighting in the motor room; the building owner and consultant did not cause or create the hazardous condition; plaintiffs failed to establish that owner or consultant has actual or constructive notice of the hazardous condition; and, any failed to comply with American National Standards Institute (ANSI) requirements did not constitute negligence.

The Court of Appeals disagreed with the First Department’s ruling that ANSI standards cannot be used as evidence of negligence because they are not a statute, ordinance, or regulation with force of law, and held that “to the extent that a violation of ANSI constitutes evidence of negligence, plaintiffs’ reliance on those standards was proper.” Nevertheless, plaintiffs failed to raise a triable issue of fact as to whether defendants had either actual or constructive notice of the alleged dangerous condition, and the Court of Appeals upheld the reversal that granted summary judgment to the defendant.

This is a direct rejection of the rule that standards can only be used to show evidence of negligence if they have force of law required by statute, regulation, or ordinance, which has been a trend in the First and Second Departments.

Thanks to Margaret Adamczak for her contribution to this post.

Wade Clark Wins Summary Judgment in Bouncer Assault Case (NY)

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In Almendares v. Front Franklin Realty, Brian Gibbons and Chris Gioia recently obtained summary judgment for our client in an assault case venued in Nassau County.  The plaintiff alleged that he was assaulted by a bouncer at a Nassau County bar, and was hospitalized that evening.  Plaintiff alleged that he was punched in the face by the bouncer of the establishment, which caused him to fall down, hit his head, and be rendered unconscious.

Before the completion of depositions,we moved for summary judgment on behalf of the owner of the property, which leased the space to the bar, because our client was an “out of possession” landowner which did not hire or control the bouncer. The lease established that the property owner had nothing to do with the day to day operation of the bar.  Moreover, the owner asserted it did not hire or retain the bouncer.  The Court agreed with the argument of the owner, that further discovery would not change the clear and uncontroverted evidence that the property owner is not responsible for the bar owner, nor is it responsible for its employees or any assaults which may happen on its property.   Please email Brian Gibbons with any questions.

Insufficient Evidence on Aisle 5 (PA)

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On September 18, 2018, in Pace v. Wal-Mart Stores, District Judge Baylson for the Eastern District of Pennsylvania granted Wal-Mart’s motion for summary judgment against plaintiff’s slip and fall claim.

Plaintiff with his wife and two children was shopping as his local Wal-Mart store in Willow Grove, Pennsylvania when he slipped and fell on some grapes in the produce section. His injuries included lumbar spine sprain, lumbar radiculopathy, and a fracture of the right proximal fibula. plaintiff also had to undergo a total knee replacement, allegedly as a result of the incident.

Wal-Mart filed a motion for summary judgment, and Judge Baylson granted the motion because plaintiff presented no evidence that Wal-Mart had actual or constructive notice of the grape(s) on the floor of the produce aisle. Under Pennsylvania law, in order to recover in a slip and fall premises liability case, plaintiff must prove that either the defendant created the harmful condition or that defendant had actual or constructive notice of such condition. Judge Baylson held that plaintiff did not provide sufficient evidence to prove either causation or notice. Plaintiff argued that Wal-Mart may have created the hazardous condition because a video showed a Wal-Mart employee unloading boxes near the area where defendant fell. However, Judge Baylson stated that this was mere speculation and thus insufficient to prove that Wal-Mart created the dangerous condition. Furthermore, plaintiff did not offer any evidence showing that Wal-Mart had actual notice or that the grapes were present on the floor long enough that Wal-Mart should have known about their presence. However, plaintiff requested the court to find that his lack of evidence relating to notice was a result of Wal-Mart’s destruction of evidence and thus argued that Wal-Mart’s motion for summary judgment should be denied. Judge Baylson found that there was a lack of evidence of the existence of any footage and by extension lack of evidence of destruction of the footage; therefore, plaintiff’s mere claim of spoliation barred summary judgment in the case.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian GIbbons with any questions.

PA Court Dismisses Supermarket Slip & Fall Suit

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The Pennsylvania Superior Court recently affirmed a trial court’s granting of summary judgment in favor of the defendant grocery store in a slip and fall case.  In Barrios v. Giant Food Stores, plaintiff Rocio Barrios appealed the December 14, 2017 order granting of Giant’s motion for summary judgment.

On June 8, 2011, Barrios claimed that she was shopping at a Giant grocery store when she slipped and fell on a transparent wet substance in the aisle.  Employees from Giant admitted that they saw an orange-sized pool of clear liquid on the floor immediately following Barrios’ fall, however they were not certain of the origin.  Barrios alleged that the liquid was the result of a meat refrigerator case that was leaking, as her fall occurred near the end of the meat aisle. Surveillance video confirmed that Barrios fell near the end of the meat aisle and that, after being alerted to her fall, Giant employees came to her assistance and cleaned the liquid with paper towels.

The Superior Court explained the standard in Pennsylvania that, in order to recover damages in a slip and fall case, the plaintiff must prove that the store owner deviated from his duty of reasonable care under the circumstances and that the store owner knew or should have known that the harmful condition existed.  Furthermore, the plaintiff must show that the store owner either helped to create the harmful condition or had actual or constructive notice of the condition.  In this case, Barrios alleged that liquid came from a leaky meat refrigerator, and also cited repair records produced by Giant which showed that the meat refrigerator had been serviced by a repair company on April 26, 2011; June 10, 2011; and June 24, 2011; as support for her assertion that Giant had actual notice of the dangerous condition.

The court reasoned that, even viewing the facts in the light most favorable to Barrios, the mere presence of water on the floor does not prove that it came from the meat refrigerator.  Furthermore, even if the water on the floor came from the meat refrigerator, Barrios did not show that Giant had notice of the dangerous condition with adequate time to correct it.  Barrios presented evidence of a repair order two months before her fall that was unrelated to any leaking issue, and also repair records for two dates after her fall.  As the court pointed out, the fact that the meat refrigerator was serviced after Barrios’ fall did not constitute evidence that Giant had notice of a leak before Barrios fell.  Thus, the court concluded that Barrios’ theory relied on conjecture and speculation, and affirmed the trial court’s granting of summary judgment in favor of Giant.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.