Lack of Specific Defense Testimony Prompts SJ Reversal in Premises Case (NY)

In a premises liability context, a property owner must establish that they did not create a dangerous condition that allegedly caused a plaintiff’s accident and that they did not have actual or constructive notice of the condition. In recent years, Court have raised the burden of proof for defendants to establish that they did not have constructive notice of a condition.

In Lombardo v. Kimco , LLC,2017 NY Slip Op 06531 (2d Dept. 2017), plaintiff slipped and fell on a wet and slippery substance on the floor of the defendants restaurant, Carrabba’s Italian Grill, LLC. The defendants established through testimony and affidavits that they did not create the wet or slippery condition and that they had a regular inspection and cleaning procedure in place so could not have had constructive notice. The Supreme Court agreed and granted summary judgment in the defendants favor.

The Appellate Division, Second Department, overturned the decision because the defendant failed to establish that the cleaning and inspection procedure was followed on the date of the accident and when the area had last been cleaned and inspected prior to the accident.  The Court found that without specific testimony from someone who cleaned or inspected the premises prior to the accident the defendant failed to establish that they did not have constructive notice of the condition.  In other words, the existence of maintenance protocols was not enough;   the property owner needed to show that it followed those protocols.

This increased burden for a defendant poses difficulty when a defendant is trying to establish lack of constructive notice. In most instances, the lawsuit has arisen years after the accident and the person who did the inspection may no longer be employed by the defendant. It is incumbent upon defendants to get statements from their employees when they are first notified of a loss and to keep in contact with them even if they leave. If defense counsel can’t locate the former employee who actually did the cleaning or inspection, summary judgment will be an uphill battle.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Evidence of Remedial Measures Inadmissible (PA)

The Superior Court of Pennsylvania recently upheld a lower court’s judgment in favor of the defendant in  Gold v. Plesset Properties.  The case arises out of a slip and fall on July 8, 2011 when plaintiff Debra Gold slipped and fell exiting Plesset Properties Partnership’s (“PPP”) property.  Shortly after the incident, PPP installed skid-resistant adhesive strips to prevent future slipping in the area.

Gold filed a complaint against PPP alleging negligence.  On the eve of trial, PPP filed a motion to exclude any evidence at trial mentioning remedial measures to the property subsequent to the incident, such as the skid-resistant strips.  Gold filed her own motion seeking to preclude PPP’s expert testimony.  The court granted PPP’s motion and denied Gold’s.  The subsequent jury trial found PPP not negligent and Gold appealed.

Gold asserted that the trial court erred in not permitting her to cross-examine a part owner of PPP on subsequent remedial measures.  Generally, in Pennsylvania, evidence of subsequent remedial measures is not admissible to show negligence.  However, it can be admissible for impeachment, to show ownership of a property, or the feasibility of precautionary measures.  The court disagreed with Gold and found there was no basis for impeachment in the matter since the witness did not contradict himself on ownership or the existence of skid-proof strips.

Gold also argued that the court erred in denying her to cross-examine PPP’s expert on subsequent remedial measures.  The court again disagreed with Gold and found that the defense’s expert did not base any of his testimony on the remedial measures, but rather solely the video of the incident.  Gold also argued unfair surprise in that she was unaware that PPP’s expert would testify.  Again, the court denied this argument and cited that Gold was notified the expert would testify a month before trial and was provided with his report in PPP’s pre-trial report 30 days before trial.

This case demonstrates the factor of subsequent remedial measures in cases. It is important for defense counsel to keep an eye on repairs and remedial measures made by clients.  Plaintiff’s counsel will try to use this as evidence that a defendant was negligent, because “why wouldn’t they be negligent if they’re installing remedial measures?”  The rationale behind excluding evidence of subsequent remedial measures is policy-based.  In short, property owners will be less inclined to improve defects, if evidence of those improvements help a plaintiff’s case.

Evidence of such measures present a compelling, but prejudicial argument to a jury, making it all the more important that defense counsel seek to preclude such evidence, and make sure their expert relies on the pre-repair conditions in his findings.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Slippery When (possibly, maybe) Wet – Not Enough to Defeat SJ Motion (PA)

On August 15, 2017, the Superior Court of Pennsylvania affirmed summary judgment in favor of Coakley & Williams Hotel Management Company in Demisew v. Coakley & Williams Hotel  The case stems from a slip and fall at a Days Inn, managed by Coakley & Williams on October 16, 2013.  Specifically, plaintiff Gela Demisew fell down a stairwell at the Days Inn, due to an allegedly slippery step.  She alleged that Coakley & Williams were negligent in allowing this dangerous condition to persist.

In September 2015, the trial court granted summary judgment in favor of Coakley & Williams and the Plaintiff filed a timely appeal.  On appeal, the Plaintiff argued that Coakley & Williams owed her a duty, as a business invitee, to exercise reasonable care in discovering the dangerous condition.  To support her assertion, the Plaintiff alleged that Coakley & Williams only had the stairwell cleaned on a weekly or “as needed” basis.  Further, the Plaintiff asserted that it rained on the day of the accident and someone could have tracked water into the stairwell as a result.

However, the Plaintiff testified that she did not know the substance she slipped on and never revisited the accident site.  Further, the director of maintenance at the Days Inn testified that the maintenance staff walked the property twice per day including the stairwells.  The director of maintenance also noted that the stairwell was cleaned once per day and no issues were documented on the date of the accident.

Thus, the court held that the Plaintiff merely speculated at the cause of her slip and fall and did not put forth any evidence to show whether the step was slippery or that the hotel had constructive notice of the alleged dangerous condition.  Thus, the grant of summary judgment was proper.   Had plaintiff testified that she was certain she slipped on tracked in rain water, as opposed to being uncertain of what she slipped on, she may have raised an issue of fact as to defendant’s negligence.   Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

Security Guard’s Injury Action Docked By Older Safety Standards (NY)

In Schmidt v. One New York Plaza Co. LLC, the Appellate Division, First Department reaffirmed that in order to find a building owner liable for violations of building safety standards, a plaintiff must show violation of specific standards in existence at the time the building was built — and not at the time of the loss.

Plaintiff was assigned as a security guard at New York Plaza with his bomb-sniffing dog on the day of his accident. He was charged with inspecting trucks as they sought entry to the loading dock at the premises. Plaintiff was walking down the service ramp with his dog when a delivery person was ascending the ramp. Plaintiff took a step that came down on the outer edge of the ramp, causing him to lose his balance and fall backward off the ramp.

In support of its motion for summary judgment, defendant building owner submitted an expert architect’s report which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard. More specifically, defendant’s expert opined that neither the Building Code nor OSHA contained sections specifically applicable to the instant facts. In opposition, plaintiff stated that its expert would testify that the ramp was defective and in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and was in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendant’s motion on the grounds that its expert, while addressing the New York City Building Code and Occupational Safety and Health Administration (OSHA) regulations, failed to address other types of industry-wide standards that might be applicable. However, the Appellate Division, First Department reversed, holding that plaintiff failed to raise a triable issue of fact to defeat summary judgment as to a violation of any industry-wide standard at the time of construction. Plaintiff’s expert failed to “offer concrete proof of the existence of the relied upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted in the relevant industry at the relevant time.”

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information.

Court Rules Against Homeowners For Staircase Fall (NY)

In Lee v Acevedo the plaintiff fell backwards down a basement staircase inside the defendants’ home. The plaintiff testified at a deposition that she was standing on a landing at the top of the staircase, attempting to close a bedroom door that opened onto the landing and she fell after she stepped backwards and her foot did not step on the landing. The plaintiff further testified that there were no handrails to grab onto to prevent her fall.

The plaintiff filed a lawsuit alleging that the size and the configuration of the landing at the top of the basement staircase constituted a dangerous condition since there was insufficient room to safely close the bedroom door. The plaintiff also alleged that the defendants were negligent in failing to provide a handrail on either side of the staircase.

The defendants moved for summary judgment dismissing the complaint, arguing that a dangerous condition did not exist and that, in any event, the negligence alleged in the complaint was not a proximate cause of the accident. Suffolk County Supreme Court granted the defendants’ summary judgment motion, but on appeal, the Appellate Division reversed.

The Appellate Court’s decision reaffirmed the duty owed by a landowner, holding that a landowner has a duty to maintain his or her property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” However, an owner “has no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous.”

Applying this standard, the court found that the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The decision finds that the deposition testimony failed to eliminate all issues of fact as to whether the conditions alleged in the complaint were inherently dangerous.

Also, the court ruled against the defendants on their proximate issue argument. The court found that the plaintiff’s testimony that she reached out to grab something as she was falling, but there was nothing to grab onto, demonstrated that an issue of fact exists as to whether the absence of a handrail was a proximate cause of her injury.

Interestingly, the court implied it expected other proof to be submitted, such as an expert report, perhaps due to plaintiff’s argument that the size and configuration of the landing created the unsafe condition.  

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

Release Bars Dumbbell Injury at Health Club (NJ)

In Pulice v. Green Brook Sports & Fitness, New Jersey’s Appellate Division addressed whether plaintiff’s signed waiver released a health club from liability for injuries she suffered while exercising at the club.

When plaintiff first joined the health club, she signed a waiver and release stating: “Members and member’s guests shall hold the club harmless from any cost, claim, injury, damage or liability incurred at the club . . . Members shall be responsible for any property damage or personal injury caused them, their family or their guests.” Soon after, plaintiff was injured at the health club when a ten-pound dumbbell fell on her face as her trainer (whom she hired through the health club) was handing it to her to perform an exercise.

Plaintiff later sued the health club alleging negligence. Plaintiff opposed the health club’s motion for summary judgment, arguing that the waiver and release was ambiguous and therefore the defendant was not shielded from liability. The trial court ruled in favor of the health club—holding that the waiver and release was not ambiguous because it clearly stated that the health club members were responsible for personal injuries that were sustained at the club. The trial court also recognized the “positive social value” in allowing health clubs to limit their liability in respect of patrons who wish to assume the risk of participation in activities that could cause an injury.

On appeal, the Appellate Division affirmed the trial court’s decision granting summary judgment in favor of the health club. The Appellate Division found that the trial court’s decision was sound because plaintiff’s injury was the result of exercising with weights and that there was an inherent risk of being seriously injured while engaging in strenuous physical exercise.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Bones in Fish not like Frog in the Soda Can (NY)

The media loves to report on stories involving dead animals or weird objects found in food, like a frog in a can of soda or a finger in a frozen custard container.  In New York, the standard for recovery in such a case involves the “reasonable expectation doctrine,” which provides that a plaintiff can recover for breach of the implied warranty of fitness if it is found that the natural substance was not reasonably anticipated to be in the food as served.

In Amiano v. Greenwich Village Fish Co.,  the plaintiff was at a seafood restaurant and was eating a filet of flounder when she choked on a fish bone. She sued the restaurant for damages for the injuries she allegedly sustained.  The restaurant moved for summary judgment under the reasonable expectation doctrine arguing that bones are to be reasonably expected in fish, even if filleted. But the trial court denied the motion by the restaurant, finding a question of fact as to whether the fish was filleted properly and as to the size of the bone the plaintiff choked on. Furthermore, the court found the question of whether the plaintiff herself failed to take care in eating the fish was a question for the jury.

The defendant restaurant appealed, and the First Department reversed the trial court decision and awarded summary judgment to the restaurant. The appellate court held that Plaintiff’s negligence claim should have been dismissed under the “reasonable expectation” doctrine, since the nearly one-inch bone on which she choked was not a “harmful substance” that a consumer “would not ordinarily anticipate” when eating fish.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.

Unavoidable Accident or Negligence… Only the Jury Knows For Sure (NY)

A New York court recently fleshed out the concept of an unavoidable accident in a motor vehicle accident case in which the plaintiff sought summary judgment. The claim in Wood v. Deschamps arose out of a winter storm related motor vehicle accident. By all accounts, the plaintiff was entirely blameless in the accident. She had been proceeding at a reasonable speed, well below the posted limit, and within her lane of travel when the defendant’s vehicle fishtailed and entered her lane of travel. It had been snowing for some time with about 1.5″ accumulation on the ground.

The defendant had been traveling somewhat under the speed limit, in light of the weather conditions, but lost control of her vehicle as she rounded a bend. She agreed that the accident occurred quickly after she entered the plaintiff’s lane.

The defense fought plaintiff’s partial summary judgment motion on the issue of liability arguing that the emergency doctrine or unavoidable accident theory applied. The Court declined to extend the “emergency doctrine” to this situation finding that there had not been a sudden and unexpected event. Although the accident was certainly sudden, the factors leading up to it were not.  The defendant admittedly knew that it was snowing and that the roads were slick as she continued on her journey.

However, the Court found that a jury could conclude that the collision was an unavoidable accident if neither party was negligent. In this case, the plaintiff was clearly free from fault as she drove at a reasonable speed and maintained control of her vehicle when she was struck by a vehicle that fishtailed into her path of travel. Similarly, the Court found that a jury could find the defendant blameless if they believed that she was traveling in a reasonable and prudent manner given the weather conditions and that her loss of control was beyond her control.

Thanks to Christopher Gioia for his contribution.


For more information, contact Denise Fontana Ricci at
dricci@wcmlaw.com.

 

Ski Shop Prevails in Battle of Meteorologists (NY)

In Griguts v. Alpin Haus Ski Shop, Inc. plaintiff fractured her left wrist after she slipped and fell on snow and ice while walking on the sidewalk in a strip mall owned by defendant Alpin Haus Ski Shop, Inc. and sued claiming that the defendant did not maintain the premises in a reasonably safe condition.

The lower court granted defendant summary judgment on the “storm in progress doctrine.”  Although a landowner has a duty to maintain their premises in a reasonably safe condition, a landowner “has no duty to remedy a dangerous condition resulting from a storm while [that] storm is in progress and has a reasonable amount of time after the storm has ended to take corrective action.”

On appeal, the ski shop relied on the affidavit and report of its expert meteorologist with weather data that concluded the snow accumulation, “combined with very cold ground and air temperatures, caused very slippery, dangerous and icy surfaces to develop when compacted down.” The Appellate Division, Third Department, held that this evidence was sufficient to satisfy defendant’s initial burden of establishing that plaintiff sustained her injury as a result of a dangerous condition created by the ongoing winter storm.

Plaintiff had her own expert meteorologist who had testified he observed untreated patches of black ice on the sidewalk where plaintiff fell and that he himself had slipped; however, the expert acknowledged that he did not know when or how the ice patches had formed. He opined that the untreated patches of black ice observed by the witness were the result of several days of melting and refreezing.

Ultimately, the Court held plaintiff’s own deposition testimony established that she had visited the plaza in the week before her fall — and after the earlier snow event — and had not observed any snow or ice conditions on the sidewalk or in the parking lot and her fall was due to the recently fallen snow. Thus, plaintiff’s submissions were insufficient to defeat defendant’s motion for summary judgment dismissing the complaint.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono if you would like more information

Prior Accidents Admissible In School Gate Mishap (NY)

In Martin v Our Lady of Wisdom Regional Sch. New York’s  Appellate Division addressed the discretion of a trial court to allowing evidence of prior accidents to establish a party’s negligence.

In April 2009, when the plaintiff was an eighth-grade student at Our Lady of Wisdom Regional School, he and another student were assigned, without supervision, the task of closing a sliding gate to the school parking lot. When the plaintiff hung on the gate as it slid closed, a wheel mechanism at the top of the gate severed the tips of two fingers.

At a trial, the Suffolk County Supreme Court permitted testimony, over the school’s objection, from a retired school nurse detailing other accidents involving the gate, and the jury found the defendants 100% at fault in the happening of the accident. A $600,000 judgment was entered in favor of the plaintiff.

The defendant appealed, arguing that the trial court erred in allowing evidence of the prior accidents. The Appellate Division’s decision addresses situations when proof of prior accidents is admissible and affirmed the decision holding that proof of a prior accident “is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same.”

The Appellate Court noted that the plaintiff presented evidence that three other children had injured their hands in accidents involving the gate, which was not significantly altered between the occurrence of those accidents and the plaintiff’s accident. As such, the Court found that the evidence was shown to be reliable and probative on the issues of dangerousness and prior notice, and the Supreme Court did not improvidently exercise its discretion in admitting it.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.