Category Archives: Negligence

Uber Dodges Lawsuit, For Now (PA)

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In Fusco v. Uber, three days before Christmas, Cabrini College director of public safety Joseph Fusco attended a holiday party in University City. Around 11:00pm he requested an Uber to take him to his home in Cherry Hill, New Jersey. Uber drivers do not know the destination until they pick up the passenger; therefore, it was not until Fusco got inside the vehicle that the driver learned that Fusco’s destination was in New Jersey. The driver refused to take Fusco to the destination and after an exchange of words, the driver physically removed him from the car, assaulted him, and left him unconscious on the sidewalk with multiple broken bones and teeth.

Fusco filed a Complaint against Uber Technologies in the Eastern District of Pennsylvania that included claims for negligent hiring, retention, and supervision related to the assault.  Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania dismissed Fusco’s suit stating that Fusco’s factual pleadings could not raise the inference that Uber Technologies was liable for those claims. Under the theories of negligent hiring, retention, and supervision, a plaintiff must show that the employee’s prior bad acts would have put a reasonable employer on notice of the employee’s propensity to injure others. However, Plaintiff’s Complaint did not allege any instances of past misconduct by the driver, and only generally alleged that the driver was unqualified and dangerous. These allegations were not sufficient to find that the driver was unusually prone to violence, such that an employer would have been dissuaded from hiring him.

However, Judge Goldberg did give Fusco a chance to amend his claims. Judge Goldberg also noted that at oral argument, counsel for both parties advised that, after Fusco filed his Complaint, news outlets reported that the driver had a prior criminal conviction.  But, because Fusco did not allege this in his Complaint, Judge Goldberg deferred his consideration of the driver’s past conviction until Fusco amends his Complaint.  Then, assuming discovery commences, Uber will find itself in a dubious position:  what did Uber know (about the driver) and when did Uber know it?   Thanks to Melisa Buchowiec for her contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions.

Plaintiff Allowed To Take Swing against City For Fall at Citi Field (NY)

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In Henn v. City of New York, Sterling Mets, et. al, plaintiff allegedly sustained injuries as a result of tripping and falling upon the sidewalk abutting Citi Field on July 6, 2014. Plaintiff alleges that defendants were responsible for the maintenance of the sidewalk and created the defective condition of the sidewalk. Defendants moved to dismiss under 3211(a)(7) – failure to state a cause of action. The lower Court denied defendants’ motion to dismiss and the defendants appealed.

The Appellate Division Second Department concurred with the lower court and ruled that defendants did not reach their burden to dismiss. The sole criterion on a 3211(a)(7) motion is whether the factual allegations articulated in the four corners of the complaint itself manifest any cognizable cause of action. “When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

The Second Department held that the documentary evidence submitted by the ballpark defendants in support of their motion failed to conclusively establish a defense as a matter of law. Further, the ballpark defendants failed to establish conclusively that the plaintiff had no cause of action. That the complaint alleged the ballpark defendants owned, operated, managed, maintained, or controlled the subject sidewalk upon which the plaintiff was injured was sufficient to go forward on a cause of action and the documentary evidence submitted by the ballpark defendants—a “Stadium Lease Agreement” and a “First Amendment to Stadium Lease Agreement” – was insufficient to show they did not own, operate, manage or control the subject sidewalk and therefore, was insufficient to provide a basis for dismissal under that subsection.

The case was allowed to move forward to discovery and depositions of all parties.

Thanks to Paul W. Vitale for his contribution to this post.

Failing to Preserve Arguments for an Appeal and Facts that “May or May Not” Exist (NY)

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In Gordon v City of New York, the plaintiff sued the LIRR, the City of New York, and the Metropolitan Transportation Authority (“MTA”) for injuries that occurred while performing excavation of rock under Grand Central Terminal.  Plaintiff fell from a ladder that slipped out from plaintiff and he fell to the tunnel floor while fixing lights 15-20 feet above him.  The defendants moved for summary judgment dismissing the complaint, which included Labor Law §§ 240(1) and 241(6) claims while the plaintiff moved for summary judgment on the issue of liability on the Labor Law §240(1) claim.  The lower court entered an order granting the City of New York and the LIRR’s motions for summary judgment and denying plaintiff’s motions against all defendants.

On appeal, the First Department affirmed the order granting the City of New York and the LIRR’s motions because affidavits were submitted based on the affiant’s work and job duties for the City of New York and the LIRR and their knowledge of and familiarity of their business operations.  The affidavits established that they did not contract for plaintiff’s work, nor did these defendants perform, supervise, or control any construction work at the subject premises.  As plaintiff’s sole theory of the City’s ownership was that it owned land on which the project was located was not raised before the motion court, it was not properly before the Court.  The plaintiff did not raise any other evidence to dispute the claims and the order granting summary judgment for the City of New York and the LIRR were affirmed.

However, on appeal, plaintiff’s entitlement under Labor Law §240(1) against the MTA, however was successfully argued because the record established a failure to provide plaintiff with proper protection for him to perform the elevation-related task of re-positioning the stadium light.  The MTA’s opposition with an engineer’s testimony that there “may or may not have been” platforms available to tie the ladder to, was not enough to raise a triable issue of fact.  The lower court reversed as to the MTA.

This opinion contains a lesson about the long term effects of failing to raise an argument in the motion court that not only affects the decision in the motion court, but also affects the appeal.  Thus, it is important to have counsel with the foresight to preserve arguments in anticipation of appeal.

Furthermore, the case also demonstrates the importance of early defense counsel oversite in investigating the facts and witnesses with knowledge in anticipation of motion practice.  Experienced counsel will be able to deal with gaps of knowledge from the witnesses provided by an insured.  Rather than rely on such ambiguous testimony regarding things that “may or may not” exist, experienced counsel should take steps to investigate further to find records or other witnesses  that may have actual knowledge of the circumstances of the accident that fill in those gaps to prevent a plaintiff being granted an early summary judgment.

Thanks to Jonathan Pincus for his contribution to this post.

Plaintiff Gets Second Bite at Defendant’s Dog (NY)

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In Lipinsky v Yarusso (2018 NY Slip Op 05925), two co-workers and friends ended up as adversaries when the defendant’s dog bit the plaintiff’s left thumb.

After the dog bit the plaintiff, he filed a lawsuit in Suffolk County Supreme Court.  The defendant then filed a motion for summary judgment, asking the Court to dismiss the lawsuit because his dog did not demonstrate vicious propensities, and even if the dog did, the plaintiff was not aware of such propensities.  The plaintiff’s opposition to the motion included an affidavit from the plaintiff’s neighbor stating that on two occasions prior to the incident, the defendant warned the neighbor to be careful near the dog because he bites.  Nonetheless, the Court granted the motion dismissing the lawsuit.

The plaintiff appealed the dismissal and the Appellate Division reversed the trial court’s findings.  The decision addressed the law and the facts, and reinstated the action because there were questions of fact regarding the defendant’s dog’s vicious propensities.

The appellate decision discussed the legal standard pertaining to liability for dog bites, holding that “to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” and vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.   The Court also held that “evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.”

Applying this law to the facts as stated in the affidavit from the plaintiff’s neighbor, the Appellate Division held that the Supreme Court erred in dismissing the lawsuit.  Specifically, the decision held that the affidavit from the plaintiff’s neighbor was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities.

Thanks to George Parpas for his contribution to this article.

Lack of Causation Finding Results in Defense Verdict (PA)

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The defendant in a rear-end collision case was recently found not liable for injuries suffered by the plaintiff.  In Firoud v. Carr, C.P. Philadelphia No. 160803547, the jury found that plaintiff was unable to prove that the defendant’s actions were causative of her injuries.

In September of 2014, plaintiff Hassania Firoud was driving in Northeast Philadelphia when her vehicle was rear-ended by an SUV while stopped in traffic.  The SUV had been rear-ended by a vehicle being driven by defendant Jean Carr.  Firoud sued Carr alleging that Carr was negligent and caused the SUV to be pushed into Firoud’s vehicle, which caused Firoud to suffer permanent neck and back injuries.  Carr stipulated to negligence and the matter was tried solely on the issues of causation and damages.

Firourd originally treated with her family doctor and underwent five sessions of physical therapy to address her neck and back pain.  Later, Firoud sought treatment with an orthopedic surgeon, who conducted an MRI and diagnosed Firoud with cervical and lumbar disc herniations as well as bilateral radiculopathy. She underwent physical therapy for ten months and completed the treatment in November 2015. Firoud also complained of headaches, anxiety, depression, and panic attacks.  Firoud sought treatment with a psychologist and was diagnosed with post-traumatic stress disorder for which she underwent psychological counseling.

At trial, Firoud’s expert report from her orthopedic surgeon opined that her back and neck injuries were causally related to the accident.  The orthopedic surgeon also determined that Firoud had suffered a serious impairment of functionality.  Firoud’s psychological expert opined that the trauma from the accident caused her to experience stress and anxiety, which ultimately resulted in post-traumatic stress disorder.  Firoud herself testified that she continued to experience back and neck pain, which caused difficulty lifting heavy objects at work as well as performing household chores.  She also testified that she suffered from anxiety, which was worse when driving, and also experienced moodiness and lethargy.  She sought compensation for her medical costs as well as past and future pain and suffering.

The defense countered with an expert report from a radiologist who opined that Firoud’s imaging studies showed no evidence of traumatic injury, but rather that only pre-existing degenerative changes were present.  The defense counsel also relied on Firoud’s medical records which indicated that Firoud’s cervical and lumbar herniations, radiculopathy, depression, and anxiety had all pre-existed the accident.  Furthermore, Firoud had been in several motor vehicle accidents in the 9 years prior to the accident at issue in the lawsuit, and had been previously diagnosed with permanent injuries from those prior accidents.  Ultimately, the jury determined that Carr was not liable for Firoud’s injuries.

The salient point here, from the defense perspective, is that despite the hole in plaintiff’s claim, the facts were nevertheless put to a jury.  Kudos to defense counsel for holding plaintiff to his burden.  But the risk was certainly present.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons any questions.

Special Benefit of Special Employees (NY)

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In James v Crystal Springs Water, the Appellate Division, Second Department unanimously affirmed a lower court ruling granting defendant’s motion for summary judgment.  In James, plaintiff was allegedly injured in an accident that occurred while working at the premises owned by defendant, Crystal Springs Water.  He was employed by nonparty Manpower Group US, Inc. and received workers’ compensation benefits pursuant to a Manpower insurance policy.  Plaintiff sued Crystal Springs to recover damages for personal injuries.

The Court affirmed that an employee who is entitled to receive workers’ compensation benefits may not sue his or her employer based on injuries sustained by the employee, and, for the purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer.  Citing Pena v. Automatic Data Processing, Inc., the Court stated, “The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer.”

While a person’s categorization as a special employee is usually a question of fact, a determination of special employee status may be made as a matter of law where undisputed critical facts compel that conclusion and present to triable issue of fact.  While no single factor is decisive, principal factors include who has the right to control the employee’s work, who is responsible for the payment of wages and furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business.  Citing to Munion v. Trustees of Columbia University, the Court found that the most significant factor is who controls and directs the manner, details, and ultimate result of the employee’s work.

Crystal Springs established that it controlled and directed the manner, details and ultimate result of plaintiff’s work.  Plaintiff submitted an affidavit asserting that he received no supervision from Crystal Springs which the Court found to be insufficient to raise an issue of fact as it contradicted his own deposition testimony.  The workers’ compensation law is a complete bar to a plaintiff’s ability to sue his or her employer and the special employee doctrine allows special employers to be cloaked under the same veil of immunity.  Thanks to Mehreen Hayat for her contribution to this post.  With an y questions, please email Brian Gibbons.

No Written Notice = No Dice for Plaintiffs in NYC (NY)

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It has long been held pursuant to the New York City Administrative Code that the City of New York cannot be found liable for accidents occurring within it due to dangerous conditions unless the City had prior written notice of the existence of the condition. The exceptions to this being where the City created a defect or the defect was caused by special use of that benefited the City.

On August 22, 2018, the Appellate Division, Second Department upheld this stringent standard to obtain a recovery from the City for potholes within the five boroughs. In Allen v. City, plaintiff was injured when he fell off of his bike after riding over a pothole in a City owned and operate street. Defendant City moved for summary judgment based on the fact that there was no prior written notice of the condition and none of the exceptions applied. The lower Court denied the City’s motion and found that a reference to a raised or elevated area on a “Big Apple Map,” constitutes prior written notice.

The Second Department unanimously reversed the lower Court’s decision and found that the City showed that it did not have prior written notice and that a “Big Apple Map” is insufficient to impose notice onto the City.

In Budoff v. City, plaintiff was injured when he fell off of his bike due to a pothole present in a designated bike lane on a City owned and operated street in Brooklyn. The lower Court granted the City’s motion and plaintiff moved to reargue. The lower Court granted reargument and upheld its decision, plaintiff appealed. The Court, which normally will not hear appeals on reargument, decided it was within its discretion to do so here as the underlying Order was upheld upon reargument.

The Court unanimously upheld the lower Court’s determination that there was no prior written notice of the condition. IT also found plaintiff’s argument that the City benefited from the special use of the bike lane as it “attracted tourism” to be unveiling and insufficient to impose liability onto the City.

The two decisions discussed above, while somewhat different, show how stringent the Second Department is about finding liability against the City. It is decisions like this that push plaintiffs to try to impose liability onto anyone but the City if possible as the burden in showing the City’s negligence is high, and often impossible to meet. In our practice, we see many cases involving defective sidewalk conditions and more often than not, plaintiffs go through great lengths to try to impose liability onto anyone they can find as to make their chances of recovery greater.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Expert’s Net Opinion Tangles Plaintiff’s Claim (NJ)

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Expert opinions can be crucial for establishing or defending against negligence claims. New Jersey evidence rules require trial courts to serve an important gatekeeping function when it comes to expert witness testimony at the time of trial. The New Jersey Rules of Evidence requires experts to base their opinions on facts or data. An expert may not offer an opinion at trial unless it is based on some facts or evidence in the record. The courts have described this as the “net opinion” rule, which bars expert opinions that are based solely on unsupported conclusions.

In Cabezas v. Spoleti, defendant was the owner of a residential property adjacent to plaintiff’s home. Defendant’s son, Vincent, lived nearby and helped his parents by maintaining their property including performing snow and ice removal during the winter seasons. Vincent did not receive compensation for his services. A few years before plaintiff’s accident, Vincent replaced the sidewalk abutting his parent’s home. He obtained a municipal permit for the work and did not receive any citations, warnings, or complaints with respect to the sidewalk replacement.

Seven years after the sidewalk replacement, plaintiff walked past defendant’s home and slipped and fell on ice that had accumulated on the sidewalk. He was hospitalized for two days and underwent surgery on his right ankle. Plaintiff filed suit against defendants alleging negligent inspection and maintenance of the sidewalk.  Plaintiff retained an engineering expert who prepared a report about the dangerous, hazardous conditions that existed due to the improper construction performed by defendants.

The report cited general construction and property maintenance regulations but did not identify any building code or industry standard that required construction of a sidewalk in the manner the expert described. Plaintiff’s expert opined that a properly constructed sidewalk should be covered with a specific type of sealant, but cited only to his “personal engineering opinion” based on his experience and research rather than any specific industry standard.

The appellate court found that plaintiff expert’s opinion lacked any foundation for admissibility. There was no authoritative materials that would support the expert’s opinions about accepted sidewalk construction practices or any basis on which to draw the conclusions offered. The appellate court affirmed the trial court’s dismissal of plaintiff’s claim, opining that plaintiff’s expert offered nothing more than a series of personal views which constituted a net opinion not worth of consideration.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Fourth Department Gives Buffalo Bills First Win of the Season

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As we are less than one month away from the kickoff to the first week of the new NFL season – we report on the case of Wrobel v. Doe where plaintiff, a Miami Dolphins fan, was allegedly assaulted by Buffalo Bills fans in the stands at Ralph Wilson Stadium. Plaintiff alleges that during a Dolphins-Bills game (Bills won 19-14), he was sitting in his seat when plaintiff felt a punch to the head and he was attacked by three men. Plaintiff suffered an injury to his knee and he brought suit against (among numerous parties) the Buffalo Bills and the security company hired to police the stadium. The lower court dismissed the case against the defendants and the plaintiff appealed.

The Appellate Division Fourth Department ruled that the conduct of the Bills and the County was not a proximate cause of his injuries and that an independent act far removed from the allegedly negligent conduct of the Bills and the County, the assailants’ unprovoked criminal assault broke the causal nexus between such allegedly negligent conduct and plaintiff’s injury. The attack was extraordinary and not foreseeable or preventable in the normal course of events.

The Fourth Department further stated ““[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever rival football fans were gathered, surely an unreasonable burden.”

The Fourth Department affirmed the lower Court’s decision because the plaintiff could not prove that the defendants were on notice of any negligent behavior of the fans and the assault was unprovoked and defendants were not liable for the independent acts of the fans that caused plaintiff’s injury.

Thanks to Paul W. Vitale for his contribution to this post.

Defect in an Interior Stairway in a Residential Building Was Trivial and Not Actionable

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Although a landowner has a duty to maintain its property in a reasonably safe condition, trivial defects are not actionable. There is no predetermined height differential that renders a defect trivial. Instead, courts must consider the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury. Thus, a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperils the safety of a pedestrian.

Stanley v. New York City Housing Authority, 2018 NY Slip Op 03726 (2nd Dep’t, May 23, 2018), demonstrates the rule in action. Plaintiff claims to have tripped on a raised nosing of a step on an interior staircase of a residential building causing a fall. During sworn testimony, plaintiff provided photographs of the alleged defective condition on the stairway. Defendants retained an expert to conduct an inspection of the accident location in light of the testimony. The expert concluded that the alleged defect was located three inches from the left stairway wall, directly underneath the handrail, and that the height differential between the nosing and the stair itself measured approximately one-half inch at its greatest depth.

The defect was deemed trivial based on the location of the defect, which was not on a walking surface of the stairway, along with the fact that the height differential was minimal and the danger posed to the safety of a pedestrian was marginal. Accordingly, the Appellate Division, Second Department, found that the lower court erred in denying defendant’s motion for summary and reversed the lower court’s decision thereby granting defendant’s motion for summary judgment dismissing the complaint.

Thanks to Margaret Adamczak for her contribution to this post.