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.

NJ Court Dismisses Plaintiff’s Claim against Parent (NJ)

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.

 

Charitable Organizations in New Jersey Can Play Ball if the Sport is Supervised (NJ)

C.H. v. Rahway Board of Education, a recent decision from the New Jersey Appellate Division, involved a plaintiff-student who got injured while playing in a student-teacher fundraising basketball game.  Plaintiff collided with a teacher during the game when they both jumped up for a rebound.  She injured her knee as a result.

The trial court granted summary judgment to defendants since plaintiff presented no evidence of negligent supervision, nor was there any evidence that the teacher acted recklessly or intentionally.  On appeal, plaintiff argued that the teacher owed her a duty of supervisory care and that there were material fact issues as to whether the teacher acted recklessly.  The court disagreed since plaintiff’s description of the incident showed that the teacher did not act recklessly or intentionally and there was no showing of a breach of the duty to supervise.  Moreover, the game was officiated by a referee, additional supervision was provided by five teachers who did not participate in the game and there were no facts showing the game was being played in a reckless or out of control manner when plaintiff was injured.

This decision is yet another step in New Jersey toward virtually eliminating a host or sponsor’s potential liability for supervised recreational or sporting events involving voluntary participants.

Thanks to Michael Noblett for his contribution to this post.

 

 

 

Recreational Sports Participants Require Showing of Reckless or Intentional Conduct (NJ)

In C.H. v. Rahway Board of Education, a minor fourteen year old plaintiff (“C.H.”) was injured while participating in a student-teacher fundraising basketball game. Student participation was voluntary and the game was officiated by at least one referee. The minor plaintiff injured her knee retrieving a rebound after being boxed out by an adult teacher. The teacher was whistled for a foul; a few years later, the school district was served with a complaint.

The facts describe normal activity that occurs when players attempt to make rebounds during a basketball game. Plaintiff C.H. testified that she and the teacher both jumped to retrieve a rebound. The teacher, however, “shove[d] back,” which caused her to land off-balance after their upper bodies collided. This off-balance landing caused her to injure her knee. C.H. subsequently filed a claim seeking damages for negligent supervision and recklessness. After the discovery phase ended, the school district moved for summary judgment as a matter of law.

The trial court ruled for the school district. The court noted that C.H. failed to present any evidence that the district had engaged in negligent supervision, considering (1) the game was officiated by a referee, (2) five non-participating teachers supervised, and (3) C.H. failed to show how the injury could have been prevented by further supervision. The trial court also ruled that a participant in a recreational sport activity cannot assert a claim of mere negligence against a co-participant; instead, a plaintiff must show that the co-participant engaged in reckless or intentional conduct that caused the injury.

On appeal, a unanimous Appellate Division panel upheld the trial court’s grant of summary judgment.

Although school officials have a duty to supervise children in their care, that supervisory duty extends to “foreseeable dangers … [that] arise from the careless acts or intentional transgressions of others.” Frugis v. Bracigliano. 177 N.J. 250, 268 (2003). The undisputed facts in this case, based on deposition testimony and first-hand accounts, did not reveal a game being conducted in a reckless or out-of-control manner. C.H.’s injury therefore was not the result of lacking supervision, or a breach of a school official’s supervisory duty, but rather her participation in a recreational sport activity.

Participants in recreational sports that cause injuries to other participants in a recreational sporting activity cannot be found liable for simple negligence. “[T]he duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” Schick v. Ferolito, 167 N.J. 7, 12 (2001) quoting Crawn v. Campo, 136 N.J. 494, 497 (1994). Since C.H. conceded that the teacher was not trying to injure her intentionally, the court looked for genuine issues of material fact showing the teacher acted recklessly when he jumped for the rebound. It found none.

Finally, and perhaps most importantly, the court rejected C.H.’s argument to impose a negligence standard in connection with the parties’ teacher/school official-student relationship. Rather than conduct an analysis examining the interplay between a school official’s duties to his or her students, the court simply ruled the facts in the record did not demonstrate that the teacher used his position to conduct himself any differently than a normal basketball player. As a result, there is no basis to impose a greater duty on him than any other participant in a recreational sporting activity.

Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.

Court Puts Muzzle on Dog Bite Claim (NJ)

Plaintiff, a certified dog groomer, had been grooming defendant’s Golden Retriever for three years. When defendants first brought their dog to plaintiff to be groomed, they provided notice that the dog was “a little problematic.” As such, plaintiff would place a muzzle on defendant’s dog during each grooming session. On June 6, 2013, plaintiff prepared to groom defendant’s dog just as she had done six or seven times prior. She placed a muzzle on the dog, and began to bathe him. There was no indication that he was agitated or aggressive. Suddenly, as plaintiff began to trim the hair around the dog’s rear, he pulled the muzzle off with his paw, whipped his head around, and sank his teeth into plaintiff’s left arm, causing ten puncture wounds. Plaintiff was hospitalized for six days and was out from work for approximately six weeks.

Following the close of discovery, defendants moved for summary judgment. The court, applying the Reynolds case, held in favor of the defendants, ruling that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner unless the dog owner purposefully or negligently conceals a particular known hazard from the independent contractor.  Here, the court was satisfied that defendants provided notice to the plaintiff that the dog tended to be problematic. Additionally, the court noted that plaintiff chose to muzzle the dog each time he was groomed due to the warnings from the defendant.

Plaintiff appealed the ruling of the trial court, arguing that it erroneously held that the groomer assumed the risk of the dog bite and that the judge did not consider that defendants purposefully concealed the dog’s violent propensity from the plaintiff. Additionally, on appeal, plaintiff’s argued that there was no expert report likening dog groomers to veterinarians with regard to assumption of the risk of being bitten by a dog. Plaintiff noted that veterinarians must be licensed, while dog groomers do not need a license.

The appellate court held that the principles in Reynolds are not confined to veterinarians. Instead, the appellate court ruled that Reynolds applies to any independent contractor who agrees to care for a dog.  Further, the court cited plaintiff’s deposition testimony wherein she stated that she was in the commercial dog-grooming business, and being bitten by dogs “goes with the territory.” As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.