Natural Accumulation is Key to Application of “Hills and Ridges Doctrine” (PA)

On January 24, 2019, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of Turkey Hill Minit Markets, the Kroger Co., and D670 Kroger C Stres/Turkey Hill/Minit Mr’s (Collectively “Appellees”) in Brock v. Turkey Hill Minit Markets.  The case stems from a slip and fall, when plaintiff Rebecca Brock was walking toward the entrance of the Store when slipped and fell on ice in the parking lot.  However, whether the slipping hazard was man-made or made naturally became a point of contention.

The “Hills and Ridges Doctrine” precludes liability “where the accident occurred at a time when general slippery conditions prevailed in the community as a result of recent precipitation.”  However, the hills and ridges doctrine can only be applied in cases where the snow and ice complained of are the result of an entirely natural accumulation following a snowfall.  Therefore, on appeal, Appellant attempted to argue that the accumulation of ice in the parking lot was due to employees of the Appellees plowing and salting the parking lot.

The defendant-appellees produced an expert report, which cited that the snow/ice was the result of natural accumulation — and this report was unopposed by the plaintiff-appellant.  As such, the Court affirmed the lower court’s ruling.  Still, the underlying argument in this case is a reminder that a court reading the phrase “natural accumulation” very narrowly could pose problems for defense counsel. Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Suit against Golf Course Not Up to Par (NJ)

Plaintiff, a New Jersey resident, visited Greenbrier golf course in West Virginia after seeing advertisements during golf events broadcast on national network television  and in nationally circulated golf magazines. While staying at Greenbrier, plaintiff slipped and fell on the golf course, suffering significant injuries. He treated for his injuries in New Jersey and New York City.

Plaintiff sued Greenbrier in New Jersey, and Greenbrier subsequently moved to dismiss based on lack of jurisdiction. During discovery, Greenbrier asserted it had no direct advertisements on any New Jersey television stations or in any New Jersey magazines. Its advertisements were limited to nationally televised media sources, national golf magazines, and social media pages. Greenbrier’s only direct contact with New Jersey was through letters and e-mails sent to New Jersey residents who had previously stayed at Greenbrier.

Following discovery exchange, Greenbrier renewed its motion to dismiss for lack of jurisdiction in New Jersey. The trial court, upon reviewing Greenbrier’s position, granted the motion and dismissed plaintiff’s claim because Greenbrier did not have any direct contact with New Jersey, and there was no evidence of the minimum contacts required from Greenbrier to permit New Jersey Courts to exercise jurisdiction over the golf course located in West Virginia.

Plaintiff filed a motion for reconsideration, arguing general jurisdiction, rather than specific jurisdiction, permitted their claims against Greenbrier in New Jersey courts. Even with the change in plaintiff’s legal position, Delgatto v. Greenbrier that general jurisdiction required systematic and continuous activity in New Jersey, and plaintiff failed to demonstrate such activity.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

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

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

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

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

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

Police Escort in Funeral Procession Does Not Trigger “Emergency Doctrine” Defense (NY)

In State Farm v. County of Nassau, State Farm sought recovery for property damage as part of a subrogation claim, where its insured driver, Licata was driving when he came to a full stop at a “T” intersection. There was bumper to bumper traffic on both his right and left due to a funeral procession. After looking in both directions he started to make a left hand turn. During his turn, he was struck by a police car. Mr. Licata said that the police car did not have its siren or lights on. The police officer contradicted this account. He stated that he had his lights and sirens on because he was proceeding from the back of the funeral line to the front to help escort the vehicles through the intersection.

The court was presented with the question of whether the negligence or reckless disregard standard applied. The court held that no emergency existed when the police officer was escorting the funeral procession. Therefore, the ordinary negligence standard applied. The court noted that the police officers testimony was extremely credible and that they believed him when he said he had his siren and lights on prior to the impact. Unfortunately, for him it did not matter.

The takeaway from this case is a simple one. Not every time an officer has his or her lights and sirens on will it automatically be considered an emergency situation. It is going to depend on the specific facts and circumstances of the occurrence. Here, the court made it clear, a police officer escorting a funeral procession is not considered an emergency.

This case also has a thorough and interesting analysis pertaining to issues of law (applicability of emergency doctrine) and issues of fact (apportionment of fault.)   Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

Howdya Like Them Apples? (NY)

What’s worse than finding a worm in your apple?  Finding half a worm in your apple.  (Wait for laughter.)

Speaking of apples, apple-picking has become a common autumn activity, when orchards convince people to pick their own apples while taking in the ambiance.  But legal principles still obviously apply to orchard-owners and invitees.

A landowner’s duty to maintain property does not include warning or protecting from “open and obvious” conditions that are not inherently dangerous. In the event that there is a concealed or dangerous condition, the landowner then is required to warn of that condition.

Recently, the First Department extended the scope of open and obvious and inherently dangerous in its decision on Mangiafridda v. Masker Fruit Farms, Inc., App. Division 1st Dept. (Jan. 3, 2019)(not yet reported). In Mangiafridda, plaintiff was apple picking at defendants apple orchard when she tripped and fell due to a sloped and rocky roadway on the premises. The defendant moved for summary judgment arguing that the condition of the roadway was open and obvious, inherent in the nature of an apple orchard and that plaintiff could have reasonably anticipated that the roadway would not be smooth.

The lower Court granted the defendants motion and the Appellate Division affirmed. The Court found that not only was the roadway open and obvious but the defendant also posted warning signs regarding the sloped and rocky roadway. The Court found that the defendants did not have a duty to warn or protect of the condition, but even if they did, they met that duty by posting warning signs.

This decision diverges from the typical caselaw on this topic in that the Court found that the condition was “inherent to an apple orchard” not that it was “not inherently dangerous” which the typical standard is when assessing a property owner’s duty as it pertains to an open and obvious condition. This distinction, while slight, opens the door for defendants to argue that a condition is not dangerous if it is one that is “inherent to the location” of the accident and could have been anticipated to be present by the plaintiff. This distinction could be helpful to defendants where accidents occur due to inherent conditions or in typically dangerous circumstances.

Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Slip-and-Fall Claim Put on Ice (NJ)

During a snowy morning in February, plaintiff, a courier, was making his rounds delivering packages to residents. The previous night, several inches of snow had accumulated on the sidewalks abutting numerous residential properties. In the early morning hours, defendant Louis Gallo removed the snow from the sidewalk in front of his residential property using a shovel and a snow blower. Following this morning errand, Gallo went to work while snow continued to fall.

A couple hours later, plaintiff arrived at defendant Gallo’s property to deliver a package, while it was still snowing, and he slipped on ice that was concealed by snow. Plaintiff remained immobilized for a few minutes, and was subsequently taken to the hospital and diagnosed with a dislocated and fractured patella. Plaintiff filed a lawsuit against Gallo, claiming that his fall was caused by a hidden hazard in the form of ice underneath fresh snow on the sidewalk.

Following discovery, defendants filed for summary judgment. In his opposition, plaintiff argued that defendants created a greater hazard by shoveling the snow into mounds alongside the public sidewalk which then melted and refroze on the sidewalk. The trial court granted defendants motion for summary judgment and plaintiff appealed. The appellate court, citing Foley v. Ulrich, 94 N.J. Super. 410, 424 (App. Div.), held that a residential property owner does not owe a duty to the public where the property owner shovels the snow from the sidewalk, and ice forms on the sidewalk after the shoveled snow melts. The court reasoned that the danger to the safe use of the sidewalk which existed when plaintiff fell was solely caused by natural forces, i.e. the freezing and melting of snow. The court opined that this natural phenomenon would have occurred even if defendants had not shoveled the sidewalk.

Further, the court held that public policy supports shielding residential property owners from this form of liability as there is a societal interest in encouraging people to clear public sidewalks and avoiding the inequity of imposing liability on those who voluntarily choose to do so. Moreover, the undisputed testimony indicated that it continued to snow even after defendant shoveled the snow and additional snow accumulated – leading to the conclusion that defendants did nothing to create a new danger or hazard.  As such, the appellate court affirmed the trial courts holding granting summary judgment in favor of the defendants.

Putting aside the “storm in progress” aspect of this ruling, we expect the outcome may have been different in New York, where “freeze and thaw” conditions often prompt denial of summary judgment.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Bar Fight Liability: Taking it Outside (NY)

In Covelli v Silver Fist Ltd., 2018 NY Slip Op 08914 (2nd Dep’t December 26, 2018), the plaintiff, an administrator of a decedent’s estate, commenced an action against an individual, Roll, and bar defendants to recover damages for negligence and wrongful death.  Plaintiff’s decedent died from injuries sustained as a result of an altercation with Roll in the public street outside the bar.

The Second Department ruled that it is uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, where defendants had the opportunity to supervise intoxicated guests and that a landowner, not being insurers of a visitor’s safety, have no duty to protect visitors against unforeseeable and unexpected assaults.

Here, as the altercation was outside the premises and control of the bar defendants and was a sudden and unforeseeable event, the lower Court’s order granting the bar defendants motions for summary judgment dismissing the complaint was affirmed. There was no comment regarding the irony of the bar’s name.

This case is of particular interest in that it allows the bar defendants off the hook for liability even when the altercation occurred right outside the bar.  However, although a beneficial opinion towards the defense bar, experienced defense attorneys will be cautious when using this case in similar bar fight scenarios as this opinion appears to show no evidence of the altercation brewing inside the bar before stepping outside.  In cases where evidence is present where the altercation starts developing in the bar it may be more difficult to as clearly differentiate when the bar’s duty to prevent the altercation starts.

Thanks to Jonathan Pincus for his contribution to this post.

Landowner Not Liable for Slip and Fall During Active Weather Event (PA)

In Beauford v. Second Nature Landscaping and Construction, Inc., the plaintiff claimed that he slipped and fell in March of 2015 outside an apartment building owned by Definitive Properties, LLC (“Definitive”).  At that time, Definitive had contracted with Second Nature Landscaping and Construction, Inc. (“Second Nature”) to provide snow removal services.  The contract required Second Nature to automatically respond within 24 hours when the snow reached a certain depth.  On the day of the accident, it began raining around 2:00 PM.  That day, the temperature remained above freezing and at 10:30 PM, the time of the plaintiff’s alleged fall, the temperature was between 44 and 46 degrees Fahrenheit.  According to the plaintiff, he slipped and fell on an ice puddle that formed sometime between 11 AM and 10:30 PM.  Plaintiff filed suit against both Second Nature and Definitive seeking damages for his personal injuries.

Both defendants filed for summary judgment, which was granted, and plaintiff appealed.  The court relied on the hills and ridges doctrine in Pennsylvania, which states that a plaintiff must show snow and ice accumulated on the sidewalk in ridges or elevations of such size and character so as to unreasonably obstruct travel and constitute a danger to pedestrians.  The Court further stated that the only duty of the property owner is to act within a reasonable time after notice to remove the snow and ice when it is in a dangerous condition.

The Court found that although there was no factual dispute that the plaintiff slipped and fell on a purported ice puddle during an active weather event, i.e. at a time when generally slippery conditions prevailed in the community.  Finding that under Pennsylvania law, a landowner has no obligation to correct conditions until a reasonable time after a winter storm has ended, there was no obligation at that time by either Definitive or Second Nature to remove snow and/or ice at that time.  Therefore, defendants’ summary judgment motions were granted.

Thanks to Alexandra Perry for her contribution to this post.

Defense’s Biomechanical Expert Gets “Fryed” (NY)

In Imran v. R Barany Monuments Inc, the Appellate Division, Second Department applied the Frye standard in precluding an expert’s trial testimony and set aside a defense verdict.  The Plaintiff was involved in a four-vehicle collision, where she sustained injuries to the cervical and lumbar regions of her spine and both knees. At trial, the defendants presented testimony of a biomechanical engineering expert, who testified regarding the change in velocity of a vehicle during a collision (“delta-v forces”). Relying on photographs of the plaintiff’s vehicle, and a crash test involving the same make and model of vehicle, the expert concluded that the impact of the second front-most vehicle to plaintiff’s vehicle would not have caused the plaintiff’s injuries to the lumbar region of her spine or her knees.

The jury returned a verdict in favor of the defendants on the issue of damages, finding that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident. Subsequently, the plaintiff moved to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial, arguing, inter alia, that the expert’s testimony on causation should have been precluded. The Supreme Court granted the motion, and the defendants appealed.

The Appellate Division, Second Department, relied upon the Frye (293 F 1013, 1014) standard and agreed with the lower court’s decision to grant plaintiff’s motion.   Pursuant to established New York law, an expert’s opinion must be based on facts in the record or personally known to the witness. The accepted techniques, when properly performed, must generate results accepted as reliable within the scientific community generally. Courts will generally admit expert testimony that’s deduced from well-recognized scientific principles or discovery, as long as the thing from which the deduction is sufficiently established to have gained general acceptance in the particular field in which it belongs.  Finding that a proper foundation was lacking for the admission of the expert’s testimony, the court found that the expert should have been precluded from testifying because he did not calculate delta-v forces of all vehicles involved, the crash tests he used differed from the accident, and the simulations used dummies with different weights than plaintiff.  A new trial was ordered.

It is easy to focus on the favorable conclusion proffered by your own expert, but a seasoned litigator will focus not only on the results, but the process.  Having a keen understanding of presentment of the expert at trial can avoid the consequence of calling an expert that reached an unreliable conclusion.

Thanks to Margaret Adamczak for her contribution to this post.

 

Translation Dispute and Hearsay Testimony Precludes a Finding of a Question of Fact in Labor Law Case Resulting in Summary Judgment for Plaintiff (NY)

In Nava-Juarez v Mosholu Fieldston Realty, LLC, the Appellate Division reversed a Supreme Court decision and granted partial summary judgment to the plaintiff in a Labor Law case, and addressed the issue of hearsay testimony in opposition and translation disputes.

The plaintiff claimed he was injured when the ladder he was working on shifted suddenly.  In support of his summary judgment motion, the plaintiff provided an affidavit of a coworker who witnessed the accident and averred that plaintiff was painting the exterior facade of defendant’s tavern when his ladder shifted, causing plaintiff to fall from his position three-quarters of the way up the ladder.

In opposition, the defendants argued that a workers compensation form contained statements from the plaintiff with a different version of how he was injured.  The plaintiff’s workers compensation form stated the accident happened “while walking I fell down stairs.”

The Supreme Court Bronx County denied the plaintiff’s motion for partial summary judgment under Labor Law § 240(1).  On appeal, the Appellate Division reversed this ruling.  In its opinion, the Appellate Division held that the defendants failed to raise a triable issue of fact because hearsay, standing alone, is insufficient to defeat summary judgment.

Further, the Court noted that the workers compensation form was prepared by plaintiff’s worker’s compensation attorney with the aid of a translator.  Plaintiff testified that he told the translator “Mientras estaba trabajando me cai de una escalera,” and asserts that the statement should have been translated as “While working I fell off a ladder.”  The decision notes that the Spanish word “escalera” may be translated as either “stairs” or “ladder” and in this case, there were no “stairs” to speak of as the premises is a one-story building and did not have an exterior staircase.   The Appellate Division ruled that the plaintiff was incapable of discovering the error in the translation of the description of his accident because he could not read English and correct the statement.

The summary judgment denial was reversed because the defendants were obligated to show that plaintiff was the source of the information recorded in the workers compensation form indicating that he fell from “stairs,” and that the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand at trial.

Special thanks to George Parpas for his contribution to this post.