Plaintiff’s Claim Against Movie Theater Flops at Box Office (NJ)

Anyone who has gone to the movie theater to catch the latest flick knows to tread carefully when exiting the theater. No matter how many ushers and cleaning crew are available, it’s a challenge to keep the floors completely free of any loose popcorn, snacks, or general debris in between movie showings.

In Frankel v. Edgewater Multiplex Cinemas, et. al., plaintiff filed a claim seeking damages for injuries sustained after a slip and fall in defendant’s movie theater. It was a crowded night at the theater, so plaintiff decided to sit in the dreaded first seat of the first row which was adjacent to an emergency exit door. When the movie ended, plaintiff attempted to exit towards the lobby, when he slipped and fell into the metal bar of the emergency exit door suffering a crush avulsion and laceration to his forehead.

Plaintiff testified that he had seen “litter” when he first sat down in the theater before the movie began, but “paid it no mind.” However, plaintiff was unable to identify what he had fallen on at the time of the accident. The defendant indicated that not only did the theater have ushers that would clean the theaters between movie showings, a “breach person” is responsible for inspecting auditoriums each hour to check sound levels, lighting levels, cell phones, talking patrons, or any items posing a tripping hazard. The theater showed evidence that the breach person had inspected the theater on an hourly basis, including two inspections which took place approximately half an hour before plaintiff’s accident.

The appellate court found that although there is a duty of care of business owners to eliminate dangerous conditions and keep the premises reasonably safe, plaintiff failed to show that defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Plaintiff could not identify what he had slipped on, and therefore could not establish that defendants were aware of the condition that caused plaintiff to fall. As such, the appellate court affirmed the trial court’s decision and affirmed defendant’s dismissal from the lawsuit.  Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.

No Driver’s License means No PIP Benefits for that Driver in New Jersey

In Blanco-Sanchez v. Personal Service Ins. Company, a New Jersey Appeals court ruled that unlicensed drivers are not entitled to personal injury protection (PIP) benefits for car crash injuries even if they have been given permission to drive a car by the owner.

Norma Blanco-Sanchez suffered injuries in a car crash while driving her mother’s car. Sanchez sought PIP benefits to cover her medical bills under her mother’s policy, which provided such coverage for up to $15,000 in covered medical expenses at the time of the crash. After the insurer denied the application, Sanchez filed suit. Personal Insurance immediately moved for summary judgment and the trial Court granted the motion, reasoning that “while the PIP portion of defendant’s policy did not contain a specific exclusion for unlicensed drivers, the argument is not whether it contains an exclusion…you can’t give permission to extend the coverage in a situation where they couldn’t have obtained coverage to begin with.”

Sanchez appealed and argued that the policy did not “expressly” exclude such coverage for situations such as this.  However, Sanchez’s mother knew that she was an unlicensed driver at the time the accident occurred.

The appellate panel affirmed the trial Courts decision stating that Sanchez cannot recover PIP benefits as a matter of public policy because an owner cannot give permission to a driver who is known to be unlicensed. Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

Winter is Coming…Game of Snows (NJ)

Business owners in New Jersey owe a duty of reasonable care to invitees on their property. The area to which the duty applies extends to the premises’ parking lot.  A New Jersey Appellate Court considered whether that duty of care extends to the removal of snow in the parking lot during an active snowstorm.

In Oyebola v. Wal-Mart and Tree Fellas, the plaintiff sued Wal-Mart and their snow removal contractor Tree Fellas, LLC, for injuries she sustained when slipping on snow and ice near her car in the parking lot.  It was undisputed between the parties that it was actively snowing at all times that the plaintiff was present at the store.   Additionally, it was undisputed that the snow removal contractor was actively removing snow at the time of the incident.

The trial court dismissed the plaintiff’s claim, finding that no rational jury could find the defendants negligent, because plaintiff fell during an ongoing snowstorm, and Tree Fellas was already engaged in snow removal efforts at the time of her fall.  The plaintiffs appealed, relying on a report prepared by their liability expert, stating that the snow removal contractor should have cleared the lot in a sequential manner.

The Appellate Court upheld the dismissal, noting that, even if we accept the opinion of the plaintiff’s expert, it was still snowing at all times that the plaintiff was present at Wal-Mart. Thus, even if the snow was removed sequentially, it still would have continued to fall next to the plaintiff’s car.  The Appellate Court confirmed that the defendants’ duty to remove the snow did not arise until a reasonable passage of time after the snowstorm.

This case is important because it highlights the importance of determining the timing of snowfall in any case involving a slip and fall on snow/ice, since a business owner does not have a duty to remove the snow during an active storm.

Thanks to Heather Aquino for her contribution to this post.

Don’t Judge A Book By Its Cover (NJ)

In Evanston Insurance Co. v. A&R Homes Development, LLC, et al., the New Jersey Superior Appellate Division held that a declarations page alone cannot create a reasonable expectation of coverage.

Evanston Insurance issued a CGL policy to A&R Homes, a development company hired to construct an apartment building in Jersey City.  The injured plaintiff in the underlying action was an employee of a subcontractor engaged by A&R.  The Plaintiff was allegedly injured at the job site when he fell more than twenty feet.

Evanston initially agreed to provide A&R a defense pursuant to a reservation of its rights.  However, once Evanston confirmed that the Plaintiff was a subcontractor employee, it initiated the instant declaratory judgment action seeking a ruling of no coverage based on the policy’s Employer’s Liability Exclusion.

On appeal, the Insured argued, inter alia, that the policy’s declarations page created a reasonable expectation of coverage for the Plaintiff’s injuries, which was sufficient to overcome any policy exclusions. Specifically, the Insured relied upon Lehroff v. Aetna, a 1994 App. Div. case that found UIM coverage based upon the policy declarations page, holding that “the average automobile policy holder” should not be held responsible to “undertake to attempt to analyze the entire policy in order to penetrate its layers of cross-referenced, qualified and re-qualified meanings.”  Ultimately, the Evanston Court did not find the holding in Lehroff to be analogous to the Evanston CGL policy, noting also that the Evanston declarations page did specifically state that all coverage would be subject to the “following forms and endorsement.”

Thus, this ruling is useful as it holds that prior case law regarding reasonable expectations of coverage in the UIM context are not always applicable to CGL policies.

Thanks to Vivian Turetsky for her contribution to this post.  Please email Colleen Hayes 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 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.

 

Insurer Off the Hook for Loss of Business Income Due to Clogged Toilet (NJ)

A New Jersey appellate court recently decided whether an insurer must provide additional coverage for damage caused to a restaurant by sewage backup in FOUZIA SALIH v. OHIO SECURITY INSURANCE.

After a dreadful toilet clog in a New Jersey restaurant, plaintiff sought coverage in excess of its policy’s $25,000 limit for heavy damage to the restaurant under a lost business income provision.  The clog destroyed the water heater, furnace, restaurant’s tiles, basement, first-floor bathroom, and kitchen, causing $162,933.63 in total damage.   The policy’s general provisions excluded coverage for water damage caused by backup or overflow but included a custom endorsement which provided a $25,000 sublimit for such events.

A public claims adjuster determined that the loss was caused by water discharge while the insurer determined that the cause of loss was raw sewage backup.  The insurer issued checks for $25,000 for the damage and plaintiff filed a lawsuit after finding that the damages far exceeded the endorsement limit.  In the lawsuit, plaintiff sought more coverage and alleged that the insurer breached its terms to provide benefits covered under the policy.

The insurer moved for summary judgment and plaintiff filed an opposition relying on the business income provision, which states that the insurer will cover the actual loss of income sustained due to damage.  The lower court ruled in favor of the insurer, finding that the custom endorsement put plaintiff on notice that the business income provision would not cover damages if the water damage coverage was only created as a result of the endorsement.  Finding that the policy terms were clear, unambiguous, and supported the insurer’s interpretation of the policy, the appellate court affirmed the lower court’s decision.

Thanks to Chelsea Rendelman for her contribution to this post.

GEICO Challenges Deemer Statute in New Jersey

Geico has challenged a New Jersey State Statute requiring auto policies issued out of state to provide a minimum amount of bodily injury liability coverage when the insured drivers are involved in accidents in New Jersey.  The case is Guerline v. Brian v. Richards, case number 081799, in the New Jersey Supreme Court.

As of December 7, 2018, the New Jersey Supreme Court justices had granted Geico’s petition for certification of a state Appellate Division panel’s August ruling directing the insurer to provide a minimum of $15,000 in bodily injury liability coverage for claims against its Florida-based policyholder who was involved in a motor vehicle accident in Newark, NJ in 2013.

Even though the Florida-based policyholder’s auto policy did not include any bodily injury coverage, the appellate panel found that, under a decades old New Jersey law dubbed the “Deemer statute,” Geico was still required to supply the minimum amounts of such coverage included in a standard auto policy issued in the Garden State ($15,000 per person or $30,000 for more than one person per accident).

The Supreme Court justices will decide the following question: Does the Deemer statute apply to an automobile insurance policy written in Florida for a Florida resident who had an accident in New Jersey, where the Florida policy did not include any bodily injury liability coverage?

The Supreme Court of New Jersey’s decision will have a major impact on motor vehicle litigation in New Jersey. Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

 

 

 

 

WCM Wins Summary Judgment on Melted Ice Slip and Fall

Recently, Mike Bono & Dana Purcaro of WCM obtained Summary Judgment for their client, in a decision issued by Judge Sherman in Supreme Court, Bronx County on the matter of Diplan v. Ergas, Index #605980/2014. Plaintiff was working at the defendant’s home as a housekeeper when she slipped and fell on water on the garage floor, which was a result of a bag of ice that was recently left in the garage and had begun to melt. The bag of ice was placed in the garage earlier that day by our clients’ daughter who did not permanently reside within the home.

Despite knowing that our clients’ daughter placed the ice in the garage prior to the accident, plaintiff never sought to depose her or amend their complaint to add her as a direct defendant in the action. At the close of discovery, we moved for SJ on the grounds that our clients did not create or have actual or constructive notice of the allegedly dangerous condition. We also pointed out to the court that the condition itself is not the type that would have been present for long enough to place constructive notice onto our clients.

Plaintiff opposed the motion stating that our clients were responsible for the placement of the ice in the garage as it is their home and they are responsible for the negligent conduct of anyone in their home. The Court rejected plaintiff’s argument, and found no triable issue of fact as to whether our clients caused the condition or had notice of the presence of melting ice in the garage. The Court also pointed out that the plaintiff failed to take testimony or amend the complaint to include the non-party daughter who put the ice in the garage despite having knowledge of her existence for several years prior to the submission of the motions.

Please email Dana Purcaro with any questions.

Workers’ Compensation Carriers can Subrogate against tortfeasor, even though Plaintiff Couldn’t (NJ)

On December 14, 2015, David Mercogliano, an NJ Transit employee, was driving a car owned by NJ Transit when he was struck by another motorist. As a result of the accident, Mr. Mercogliano only suffered minor injuries and therefore his injuries did not overcome the verbal threshold.  He was barred from suing the other driver. However, he was still able to receive workers’ compensation benefits through NJ Transit’s workers’ compensation carrier. They paid out a total of $33,625 as compensation for his medical bills and indemnity benefits.

In an effort to recoup the money that was paid out, the workers’ compensation carrier filed a subrogation action against the driver of the other vehicle. A Superior Court judge granted summary judgment against the workers’ compensation carrier, ruling that the Automobile Insurance Cost Reduction Act barred the subrogation claim. The workers’ compensation carrier appealed this decision and the Appellate Division overturned the lower court’s ruling.

Last week, the three-judge panel held that even though Mr. Mercogliano could not recover benefits from his own automobile insurance or sue the other driver for non-economic damages, the workers’ compensation carrier had the right to file a subrogation claim.

Their rationale was all about legislative intent. The court said that the Workers’ Compensation Act applies, not the Automobile Insurance Cost Reduction Act. And if the legislature wanted to bar these claims they would have included that language in the AICRA, which was drafted 87 years after the WCA, but they didn’t.

What does this ruling mean? Well, if it is determined that a plaintiff’s injuries do not meet the verbal threshold in NJ, that doesn’t mean the insurance carrier is in clear. Yes, the insurance carrier won’t need to pay out non-economic damages to the plaintiff, but if the plaintiff was in the scope of his employment at the time of the accident, the motor vehicle insurance carrier needs to be aware of a potential subrogation claim from his employer’s worker’s compensation carrier.

Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.