Ski Shop Prevails in Battle of Meteorologists (NY)

In Griguts v. Alpin Haus Ski Shop, Inc. plaintiff fractured her left wrist after she slipped and fell on snow and ice while walking on the sidewalk in a strip mall owned by defendant Alpin Haus Ski Shop, Inc. and sued claiming that the defendant did not maintain the premises in a reasonably safe condition.

The lower court granted defendant summary judgment on the “storm in progress doctrine.”  Although a landowner has a duty to maintain their premises in a reasonably safe condition, a landowner “has no duty to remedy a dangerous condition resulting from a storm while [that] storm is in progress and has a reasonable amount of time after the storm has ended to take corrective action.”

On appeal, the ski shop relied on the affidavit and report of its expert meteorologist with weather data that concluded the snow accumulation, “combined with very cold ground and air temperatures, caused very slippery, dangerous and icy surfaces to develop when compacted down.” The Appellate Division, Third Department, held that this evidence was sufficient to satisfy defendant’s initial burden of establishing that plaintiff sustained her injury as a result of a dangerous condition created by the ongoing winter storm.

Plaintiff had her own expert meteorologist who had testified he observed untreated patches of black ice on the sidewalk where plaintiff fell and that he himself had slipped; however, the expert acknowledged that he did not know when or how the ice patches had formed. He opined that the untreated patches of black ice observed by the witness were the result of several days of melting and refreezing.

Ultimately, the Court held plaintiff’s own deposition testimony established that she had visited the plaza in the week before her fall — and after the earlier snow event — and had not observed any snow or ice conditions on the sidewalk or in the parking lot and her fall was due to the recently fallen snow. Thus, plaintiff’s submissions were insufficient to defeat defendant’s motion for summary judgment dismissing the complaint.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono if you would like more information

City of Philadelphia Responsible For Parking Lot Snow Removal (PA)

In Stuski v. Philadelphia Authority for Industry Development, the plaintiff worked for the City of Philadelphia police department’s traffic division, which leased offices in the Navy Yard in Philadelphia. The traffic division also leased an adjacent fenced parking lot for the exclusive use of traffic division employees. The property was owned by PAID and managed by CBRE.

On the morning of the accident, the plaintiff parked in the leased parking lot, stepped out of his car after arriving for work, and slipped and fell on snow or ice. The defendants moved for summary judgment, and argued that they did not owe the plaintiff a duty of care due to the language of the lease. The lease between PAID and the City of Philadelphia provided that it was the City’s responsibility, as tenant, to remove snow and ice from the parking lot leased for the traffic division’s exclusive use. Based on this language, the trial court granted the motion for summary judgment.

On appeal, the City argued that PAID and CBRE owed the plaintiff a duty of care. The Court noted that witnesses testified that although there was a sign in the parking lot instructing to call CBRE for snow and ice removal — and it was the City of Philadelphia’s administrative policy to call CBRE for snow and ice removal — the City of Philadelphia always ended up performing the snow and ice removal for the parking lot itself.

In affirming the trial court’s granting of summary judgment, the Court held that a landlord  generally has responsibility for snow and ice removal for premises leased to multiple tenants. However, where a tenant has exclusive possession and control over leased premises, the responsibility for snow and ice removal falls on the tenant. As such, the Court found that in addition to the language of the lease and the City of Philadelphia’s course of conduct in removing snow and ice, the City of Philadelphia had exclusive possession and control over the parking lot. Therefore, summary judgment was affirmed.

Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information.

Prior Accidents Admissible In School Gate Mishap (NY)

In Martin v Our Lady of Wisdom Regional Sch. New York’s  Appellate Division addressed the discretion of a trial court to allowing evidence of prior accidents to establish a party’s negligence.

In April 2009, when the plaintiff was an eighth-grade student at Our Lady of Wisdom Regional School, he and another student were assigned, without supervision, the task of closing a sliding gate to the school parking lot. When the plaintiff hung on the gate as it slid closed, a wheel mechanism at the top of the gate severed the tips of two fingers.

At a trial, the Suffolk County Supreme Court permitted testimony, over the school’s objection, from a retired school nurse detailing other accidents involving the gate, and the jury found the defendants 100% at fault in the happening of the accident. A $600,000 judgment was entered in favor of the plaintiff.

The defendant appealed, arguing that the trial court erred in allowing evidence of the prior accidents. The Appellate Division’s decision addresses situations when proof of prior accidents is admissible and affirmed the decision holding that proof of a prior accident “is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same.”

The Appellate Court noted that the plaintiff presented evidence that three other children had injured their hands in accidents involving the gate, which was not significantly altered between the occurrence of those accidents and the plaintiff’s accident. As such, the Court found that the evidence was shown to be reliable and probative on the issues of dangerousness and prior notice, and the Supreme Court did not improvidently exercise its discretion in admitting it.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

Security Company Not Liable For New Year’s Eve Elevator Attack (NY)

Excessive drinking by “amateurs” on New Year’s Eve often leads to trouble, and intoxication appeared to be an issue in Coons v. Hotel Gansevoort Group, LLC and Security Services, Inc.,  which involved a plaintiff hotel patron who had travelled to New York City to attend a ritzy New Year’s Eve party at the penthouse bar at the Hotel Gansevoort. He was in the elevator on his way to the lobby at about 1 a.m. after ringing in the New Year, along with two men being escorted by a security guard hired by Security Services Inc. (“SSI”).  The two men appeared intoxicated and looked like they had been in a fight as there was blood on their clothes. As the elevator door opened in the lobby and plaintiff walked out, he was struck from behind by one of the men and fell to the ground.

Plaintiff sued the Hotel Gansevoort, SSI and the security guard individually. SSI moved for summary judgment, arguing they did not owe plaintiff a duty of care as he was a stranger to their contract with the hotel to provide security. The trial court denied the motion, holding that the hotel was aware of the patrons’ dangerous propensities since they had been in a fight and were being escorted off the premises. The court also found that the danger of placing the men in an elevator cab with other hotel guests should have been obvious to security personnel, and therefore SSI could be found to have created or exacerbated a dangerous condition, giving rise to a tort duty of care.

SSI appealed the decision, and the First Department found that SSI, an independent security contractor for the defendant hotel, did not owe plaintiff a duty of care. The Court held that the oral contract for security services did not extend to plaintiff. Because SSI owed no duty to the plaintiff, SSI was entitled to summary judgment and the First Department reversed the lower court’s decision and dismissed the case against SSI.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono if you would like more information.

“Child’s Play”: Second Department Upholds Defendants’ SJ in After School Accident (NY)

There is an old adage that, “hard cases make bad law.”  But, the reverse is also true, bad law makes hard cases.  On occasion the Court is swayed, or at least influenced, by tertiary, extra-legal considerations.  One of the more prevalent considerations is undue sympathy towards a child claimant.  Whereas the law recognizes certain legal distinctions in regards to a child’s course of conduct and prosecution of a lawsuit, the sympathy-factor of an infant plaintiff can color the determination of fact.

In Grigorian v. City of NY, NY Slip Op 04102, the Second Department affirmed the lower court’s granting of summary judgment in favor of defendants despite injuries sustained by an infant plaintiff.

The infant plaintiff Robert Grigorian slipped and fell off a snow mound.  On the day of the accident, the infant plaintiff was released from school at 3:00 P.M., and went home.  He returned to the school at 5:00 p.m. to pick up his younger sister from an after-school program.  The two began to walk home and has they were walking, they passed a snow mound, located between the infant plaintiff’s school and sister’s school on a street that was closed to traffic and used as a parking lot for teacher.  The sister climbed up the snow mound and the infant plaintiff climbed up the mound to retrieve her.  He slipped and fell in so doing, injuring himself.

The Appellate Division held that the City defendants established their entitlement to summary judgment, because the infant plaintiff and his sister passed out of the “orbit of the authority” of their respective schools at the time of the incident and the schools no longer had control over them.   Further, the area where the incident occurred was maintained in a reasonably safe condition and the snow mound did not constitute a dangerous condition.

In the case, the Court was able to separate liability and sympathy in its analysis as to issues of fact and theories of liability.  Plaintiff attorneys will often attempt to use the fact that the plaintiff is a child as leverage in negotiations, confounding liability and potential damages.  There are times, when such extra-legal considerations should be factored into the defense of the matter — making SJ motion practice critical.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

MSJ Denied, Largely Due to (Missing) Easement Exhibit (NY)

A key factor in determining whether a party is liable in a trip and fall accident is the ownership, occupancy, control or special use of the subject property. Generally, the testimony of someone with personal knowledge  that the property is not under their control or used for any special purpose is sufficient to support a motion for summary judgment on a defendants’ behalf.

In Turano v. Two Hillside Avenue Realty Corp., 2017 NY Slip Op 04313 (2d Dept. 2017), plaintiff tripped and fell in the parking lot of a commercial building.  The building is comprised of eight apartments which are individually owned. Each owner also owns the parking spot nearest to their respective unit. Plaintiff commenced the action against all eight unit owners and the overall property owner who maintains the common areas of the premises.

One of the defendant unit owners moved for summary judgment stating that they did not have a duty to plaintiff due to the fact that the incident occurred on the common portions of the parking lot wherein they do not have a duty to maintain. The Court upheld the lower court’s decision which denied the property owners motion.

The Court held that despite the testimony and affidavit of the homeowner the deed referred to a “Declaration of Common Driveway Easement and Restrictive Covenant.” The Court held that without any information or testimony about the easement and covenant a question of fact remained as to whether the property owner made special use, through an easement or covenant of the portion of the property at issue.

This decision emphasizes how each potential factor for liability on the part of a defendant should be addressed in making a dispositive motion and that any stone left unturned could result in a denial of a motion, despite how strong the other evidence may be.  One assumes the defendant will opt to re-move, with the easement as an additional exhibit — unless the Court denies leave to re-move.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Garbage Can-not a Cause of Action (NY)

When an accident occurs and someone has an unfortunate injury, must someone else always be responsible? A creative lawyer can theorize a duty that has been breached in almost any scenario.  However, whether they can raise that theory beyond speculation is the issue.  At the end of the day, it depends on what facts can be proven to support the theory.

In Latuso v. Maresca, the plaintiff commenced a personal injury action arising out of a motorcycle accident allegedly caused by an errant garbage can that had blown into the roadway.  When he swerved to avoid it, his motorcycle contacted sand on the roadway causing him to lose control and hit a tree on the defendants’ property.  Seeking a culpable party, the plaintiff concluded that the defendants had to be negligent for placing their garbage can on a berm near the roadway in windy conditions.

The defendants countered that they had not created nor did they have notice of the condition of which the plaintiff complained.   While the defendants did not persuade the motion judge who denied summary judgment, the Second Department was swayed and reversed finding that there was no triable fact citing the principle that “mere conjecture, suspicion or speculation is insufficient to defeat a motion for summary judgment.”

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.

Damages Award for Meat Slicer Injury Modestly “Sliced” By Comparative Fault (PA)

A delivery person injured by the blade of a disassembled meat slicer recently received over $1.5 million from a Pennsylvania jury.  In Fuller v. Easton Healthcare Services Group, Plaintiff, a delivery person for a knife-sharpening and appliance service, was picking up a meat slicer that had been loaned to the Easton Health & Rehabilitation Center.  When Plaintiff arrived to retrieve the loaner slicer, an employee of Healthcare Services Group loaded the disassembled slicer onto a cart and wheeled the cart to Plaintiff’s delivery van.

As a result of the slicer’s disassembly, the blade guard to the slicer had been removed and placed on a lower shelf of the cart, underneath the slicer itself.  Subsequently, the employee lost his balance while attempting to load the slicer into Plaintiff’s delivery van, and in her effort to assist the employee, Plaintiff reached over top of the slicer and lacerated her right forearm, severing nine tendons, an artery, and two nerves.  She underwent emergency surgery to reattach the severed nerves and tendons, as well as re-establish blood flow to the severed artery.  Despite physical therapy, Plaintiff needed multiple surgeries to remove nerves from her ankle and implant them into her hand, an index finger amputation, and a fusion of her thumb.

Plaintiff sued Healthcare Services Group alleging that the removal of the blade guard from the slicer, the failure to reassemble the slicer, and the assumption that Plaintiff would notice that the slicer was not reassembled created an unsafe condition that could foreseeably cause harm.  Healthcare Services Group countered that, because it was Plaintiff’s job to retrieve the slicer, defendant was not responsible for placing the blade guard on the slicer, and that Plaintiff’s failure to notice that the blade guard was missing rendered her contributorily negligent.

Ultimately, the jury found that Plaintiff was 13% liable and Healthcare Services Group was 87% liable. Thus, Plaintiff’s damages, which included medical costs, lost earnings, pain and suffering, and a loss of consortium claim by her husband, were only reduced from $1,868,987.25 to $1,627,318.91.  As such, the jury obviously felt the defendant’s handling of the meat slicer was the issue, as opposed to plaintiff’s mishandling.  This case present the danger of a defense strategy of placing all the blame on a likely sympathetic plaintiff.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Clear and Unambiguous AI Endorsement Trumps Lease Language (NJ)

In Killeen v. J&M, plaintiff, a firefighter, was injured while responding to a fire after falling through a glass panel on the roof. He filed a complaint against defendant NSPC, Inc., the owner of the building, and Jenson & Mitchell, Inc. (J&M), the tenant of the property. The lease  required J&M to obtain general liability insurance, naming NSPC as an additional insured against liability on the premises. J&M procured insurance through Travelers Property Casualty Company of America (Travelers), and an additional insured endorsement provision provided coverage to NSPC for “liability arising out of the ownership, maintenance or use” of the premises leased by J&M, but Travelers disclaimed coverage as to NSPC because the lease itself required NPSC to maintain the roof.  NSPC to filed third-party complaint against Travelers seeking coverage.

NSPC moved for summary judgment, seeking an order declaring that Travelers owed coverage under the policy, or, in the alternative, a ruling that J&M breached the lease by failing to procure insurance coverage. Travelers filed a cross-motion for summary judgment, seeking an order that NSPC was not entitled to coverage under the insurance policy. The motion court  granted Travelers’ motion, dismissing the third-party complaint against Travelers, because the lease obligated NSPC to maintain the roof.  Therefore, no coverage for NSPC.

Pursuant to an assignment of NSPC’s rights, plaintiff appealed the finding of summary judgment in favor of Travelers.  The appellate court reversed, since the additional insured endorsement under the Travelers policy provided NSPC coverage “with respect to liability arising out of the ownership, maintenance or use of that part of any premises leased to J&M.” The appellate court opined that the roof was a vital part of the “premises” leased to J&M, and the insurance policy was clear and unambiguous.  As such, there was no need to look to the lease to determine coverage.

Had the AI endorsement been vague, then the Court may have looked to the lease provision, and ruled differently.  But the clear policy language rendered the lease moot. Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Snow Removal Contractor Unwittingly Alters the Terms of his Contract and Finds Himself Liable

A Pennsylvania judge’s denial of a snow removal contractor’s motion for summary judgment has interesting implications for premises liability cases in the Commonwealth.  In the case of Reilly v. Main Avenue Realty Development, LP, the court addressed the liability of a snow removal contractor in a premises liability action arising from an alleged fall on an isolated patch of ice on commercial property.  The ice was allegedly created by a dripping overhang near the entrance of a store.

The contract provided that the snow removal contractor was required to treat the premises whenever there was a snow accumulation of one-inch.  However, since the contract’s inception in 2010, the contractor, by admission of his deposition testimony, would treat the premises whenever there was a snowfall, even if it was just a dusting.  In light of this admission, the Court noted that a written agreement may always be modified by subsequent conduct of the parties indicating a new or different intent under the contract, and held that the snow removal contractor was obligated, by his own past behavior, to treat the premises whenever snow fell, regardless of the accumulation.  At the time of the plaintiff’s alleged fall, the snow removal contractor had not treated the premises despite a trace amount of snowfall.

With respect to liability for the plaintiff’s alleged fall on an ice patch caused by a dripping overhand, the Court found that the snow removal contractor was not liable under the contract to treat the dripping overhang.  However, in light of evidence on the record that trace amounts of snow had fallen on the premises, the Court concluded that a question of fact existed because a jury could find that the recent snow triggered a duty on the part of the snow removal contractor to treat the premises.

In this matter, the Court applied tried and true contract principles to deny a motion for summary judgment.  Unbeknownst to many of us, our conduct in the performance of a contract may actually alter the terms of the contract and, ultimately, shift liability.

Thanks to Hillary Ladov for her contribution to this post.