Category Archives: Negligence

The Customer is Always Right (NY)

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

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

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

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

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.

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.

 

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.

 

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.

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.