Serious Injury Threshold Favors Plaintiff with Documented Pre-Existing Condition (NY)

In New York, a person injured in a motor vehicle accident cannot maintain a lawsuit for personal injuries unless the injuries are “serious” as defined by the New York State Insurance Law.  Typically, the Court is lenient as to what constitutes a serious injury, assuming the plaintiff’s medical proof is sufficient to show prima facie evidence of a serious injury.

In Munoz v. Robinson, decided by the Appellate Division, First Department on March 5, 2019, the underlying Court had granted summary judgment in favor of the defendants on the plaintiff’s failure to meet the personal injury threshold. Plaintiff suffered a torn meniscus and had surgical repair following the accident. However, plaintiff had pre-existing degenerative issues with the knee confirmed by her own physicians.

Both the lower Court and the Appellate Division found that the defendants met their burden in showing that the injury which required surgical repair pre-existed the accident. However, the Appellate Division found that plaintiff raised a question of fact to overcome the defendant’s prima facie showing of entitlement to summary judgment by showing that the accident aggravated the prior injury to such a degree that surgery was necessary, wherein it would likely not have been necessary before.

This decision further shows how the high standard defendants face in obtaining summary judgment on the personal injury threshold issue in motor vehicle accident cases.  Even here, if we might paraphrase Michael Corleone, the defendants thought they were out, but the First Department pulled them back in!  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Untimley Expert Disclosure Stricken in Westchester County (NY)

At a time when many counties tend to blur the CPLR, it is nice to know the rule of law still applies in Westchester County.  The Second Department upheld a lower court decision to strike plaintiff’s untimely expert disclosure and deny plaintiff’s cross motion to amend her pleadings in Holder v. County of Westchester.  Downstate counties are increasingly permitting post-note of issue discovery, however, the Supreme Court in Westchester correctly struck plaintiff’s post-note of issue expert disclosure upon defendant’s motion.

Plaintiff was allegedly injured on December 13, 2009 while disembarking from a bus.  Her original notice of claim, complaint, and bill of particulars were premised on the theory that the bus driver failed to lower the front of bus, causing plaintiff to fall when she disembarked.  After the note of issue was filed, plaintiff served a supplemental response to defendants’ demand for expert disclosure wherein she added an additional theory of liability, namely, that the defendants allowed her to disembark from the bus in an area that contained ice which caused plaintiff to step on ice and fall.  The plaintiff had already testified that she did not know of anything else that caused her to fall other than the height of the bus.

The defendants moved to strike plaintiff’s supplemental responses and the plaintiff cross-moved to amend her pleadings.  While courts generally allow plaintiffs to freely amend their pleadings, the Appellate Division found “where, as here, leave to amend is belatedly sought, judicial discretion should be exercised sparingly.”  Changing a theory of liability so late in the game is extremely prejudicial and as such, the lower court correctly granted defendant’s motion and denied plaintiff’s cross-motion.

While part rules in Kings and Queens County give plaintiffs ample opportunity to engage in post-note of issue discovery, it is refreshing to see a plaintiff appropriately held accountable for a tardy disclosure, which would have been prejudicial to the defendant. Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

1st Dept. Gives Plaintiff’s Dismissed Claim 2nd Chance (NY)

In Michaluk v New York City Health Andamp Hosps Corp., plaintiff brought a medical malpractice action relating to treatment received by the decedent plaintiff, at Bellevue Hospital Center between August 2010 and January 2011. Plaintiff subsequently moved to amend the notice of claim to include a cause of action for wrongful death. Ultimately, defendant New York City Health and Hospitals Corporation moved for an order striking the action for plaintiff’s failure to comply with prior court orders, including discovery obligations.

The lower court found that plaintiff willfully failed to comply with numerous discovery orders pertaining to discovery deadlines, including setting dates for depositions. After plaintiff was granted leave to file an amended notice of claim, plaintiff waited over a year before providing defendant with a verified Bill of Particulars. Additionally, plaintiff’s deposition wasn’t completed for over a year, and deposition of non-party witness was not completed until over seven months lapsed. Ultimately, the defendant’s motion to dismiss was granted for plaintiff’s failure to comply with the Court’s directives.

Finding the lower court improvidently exercised its discretion in dismissing the action for failure to comply with discovery, the First Department noted that “warnings in prior court orders that the deposition was not to be adjourned is not notice to plaintiffs that dismissal of the complaint may result should it not go forward.” Defendants failed to show that plaintiff’s failure to go forward with deposition of one doctor was willful, contumacious, or in bad faith and plaintiff’s excuse that attorney was in a motor-vehicle accident 2-weeks before scheduled deposition was reasonable.

Skier’s Responsibility Act Bars Claim (PA)

A Pennsylvania court recently decided in Vu v. Ski Liberty Operating Corp., 2019 U.S. App. Lexis 4261 (3d Cir. Feb. 12, 2019) whether a ski resort was responsible for a skier’s injuries after they skied over the edge of a trail to avoid colliding with a snowboarder.

Plaintiff, Quan Vu, was skiing at Liberty Mountain when a snowboarder approached him and cut him off, causing Vu to veer toward the edge of he trail.  Vu skied over the edge and landed in a pile of rocks.  Vu suffered multiple injuries and sued the resort, alleging that his injuries were caused by his skiing over an unmarked artificial cliff at the slope’s edge created by the Defendants’ snowmaking and snow grooming practices.  In his complaint, Vu alleged that the defendants were negligent for failing to keep the slope free from unsafe conditions, warn plaintiff of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the rocks below.  Defendants moved for summary judgment arguing that plaintiff’s action was barred because skiing off trail is an inherent risk of downhill skiing.

The court decided that, under the Skier’s Responsibility Act, ski resorts have no duty to protect skiers from the inherent risks of the sport that are common, frequent, and expected.  Losing control and skiing off the side of a trail is an inherent risk of skiing and inherent risks need not be natural conditions.  Because plaintiff failed to identify any particular industry standard that defendant violated, defendants were properly granted summary judgment.

Employer not Liable for Employee’s Negligence When on Vacation (PA)

In Ludwig v. McDonald et al., the plaintiff  filed suit claiming that she was struck by the defendant’s vehicle when she was exiting into the street from her parked car in Forest City, Pennsylvania.  Plaintiff alleged that after she exited her vehicle, the defendant, who was traveling in the southbound lane, entered the northbound lane to avoid another vehicle and struck her as she was standing by her vehicle.  Plaintiff alleged that the defendant was operating his vehicle in the scope and course of his employment with LTC Associates, a company in the business of operating a nursing home in Forest City.  In the complaint, plaintiff alleged claims of negligence against the defendant and vicarious liability against his employer.

Following discovery, LTC Associates filed for summary judgment, alleging that the defendant personally owned the vehicle involved in the accident, and that the defendant was “on vacation” at the time the incident occurred, and therefore LTC was not vicariously liable.  In support of its motion, LTC cited to the defendant’s time off request form that he submitted to request off on the date of the incident.  LTC also cited to testimony by the defendant stating that he was on vacation on the date of the  accident; however, he did go to work earlier in the afternoon to drop some items off.  Further, the defendant’s written time card confirmed that he did take time off on the date of the accident, as he was fixing his porch.  Based on those facts, the trial  court found that the defendant was not working in the scope of his employment on that date, and granted summary judgment in favor of LTC.

In affirming the trial court’s order, the Superior Court stated that there was no dispute as to employee-employer relationship between the defendant  and LTC.  However, the Court found no genuine issue of material fact establishing whether the defendant was working on the date of the accident.  The Court found that defendant was using his vacation time and was not working, despite the fact that he did stop by his place of employment on that date to drop off something and pick up his tools.  The fact that he was driving home from his place of employment when the accident occurred did not place his actions within the scope of his employment, as he freely chose to travel to his place of employment in his personal vehicle to pick something up.  He was not exercising the business of LTC at the time, and there was no evidence to show that LTC had any actual or potential control over the defendant’s actions.

Therefore, the trial court’s granting of summary judgment in favor of LTC was affirmed by the Superior Court.

Thanks to Alexandra Perry for her contribution to this post.

Injured Snow Tuber Successfully Maneuvers through Summary Judgment Motions (NY)

In Jamjyan v. West Mountain Ski Club, Inc., the plaintiff was injured at a snow tubing park. She commenced this personal injury action against the defendants, the owners and operators of the tubing park, alleging that a park attendant caused the accident by prematurely unhooking the tow rope from the snow tube the plaintiff was sitting in while being towed to the top of the hill. The defendants moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of assumption of risk. The Supreme Court denied the motion, and the defendants appealed.

The Appellate Division, Second Department reviewed the facts and concurred with the lower court’s decision in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity.

Assumption of risk is not an absolute defense, but a measure of a defendant’s duty of care. Here, in opposition to the defendants’ prima facie showing, the plaintiff raised a triable issue of fact as to whether the allegedly unexpected action of the tubing park attendant, in prematurely unhooking the plaintiff’s snow tube from the tow line, created a dangerous condition over and above the usual dangers that are inherent in the sport of snow tubing.

Plaintiff also provided an affidavit from an expert stating that the defendants’ actions were not reasonable and would foresee a dangerous condition.

Thanks to Paul Vitale for his contribution to this post.

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.

Dear John Doe (PA)

Don’t forget about John Doe when appealing trial court orders holds Pennsylvania Superior Court.  In William Massaro v. Tincher Contracting, LLC, Kenneth E. Tincher II, & John Does 1-10, William Massaro (“Massaro”) sued Kenneth Tincher and his contracting company, Tincher Contracting, LLC (together, “Tincher”) for breach of contract, breach of implied warranties, and unfair trade practices relative to the build of Massaro’s home.  Tincher successfully moved for summary judgment on all counts at the close of discovery, and an order was entered dismissing Tincher, but not the John Doe defendants, from the case.  Massaro appealed the trial court’s order.

However, the Pennsylvania Superior Court quashed the appeal.  In reaching its conclusion, the Court held that Pennsylvania’s appellate courts have jurisdiction over only final orders.  It is established in the Commonwealth that final orders are those judgments that dispose of all claims and all parties.  If any claim remains unresolved even after a judgment, then the order is not final, and it cannot be appealed.  Here, the grant of summary judgment, the Court concluded, did not resolve the case as between Massaro and the John Doe defendants and, thus, was not final.

Thus, while John Doe defendants are easy to overlook, this case shows that they should not be whenever an attorney is assessing appellate court jurisdiction.

Thanks to Robert Turchick for his contribution to this post.  Please email ">Colleen Hayes with any questions.

It’s Not Your Fault (PA)

In Precision Underground Pipe Servs. v. Penn Nat’l Mut. Cas., Verizon entered into a contract with Parkside to install an underground conduit for Verizon’s fiber optic cable in Villanova, Pa. Under this agreement, Parkside was required to name Verizon as an additional insured and to indemnify Verizon. Parkside subsequently contracted with Precision to provide additional labor. Under this agreement, Precision was required indemnify Parkside and Verizon and name them as additional insureds on their Penn National policy.

The Penn National policy included an “Automatic Additional Insureds-Owners, Contractors, and Subcontractors” endorsement, which stated the following would constitute an additional insured under the policy: “[a]ny person(s) or organization (s) . . . with whom you are required in a written contract or agreement to name as an additional insured, . . . caused, in whole or in part, by: (1) your acts or omissions; or (2) the acts or omissions of those acting on your behalf in the performance of your ongoing operations”.

An employee of Precision suffered injury while working at the work-site and filed a complaint against Verizon and Parkside. Penn National refused to provide a defense and indemnity to Verizon and Parkside. In determining whether Verizon and Parkside were entitled to defense and indemnity, the court looked to the underlying complaint. The court reasoned the complaint lacked any indication that Precision committed any act or omission that lead to the plaintiff’s injury. Specifically, the plaintiff’s complaint alleged wrongdoing on the part of Verizon and Parkside but did attribute fault Precision.  Therefore, the court concluded no additional insured coverage was provided under the policy because there were no allegations that the plaintiff’s injuries were caused by Precision.

Thus, this opinion emphasizes the importance of scrutinizing the underlying complaint’s language when dealing with duty-to-defend matters.

Thanks to Rachel Thompson for her contribution to this post.  Please email ">Colleen Hayes with any questions.