Natural Accumulation is Key to Application of “Hills and Ridges Doctrine” (PA)

On January 24, 2019, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of Turkey Hill Minit Markets, the Kroger Co., and D670 Kroger C Stres/Turkey Hill/Minit Mr’s (Collectively “Appellees”) in Brock v. Turkey Hill Minit Markets.  The case stems from a slip and fall, when plaintiff Rebecca Brock was walking toward the entrance of the Store when slipped and fell on ice in the parking lot.  However, whether the slipping hazard was man-made or made naturally became a point of contention.

The “Hills and Ridges Doctrine” precludes liability “where the accident occurred at a time when general slippery conditions prevailed in the community as a result of recent precipitation.”  However, the hills and ridges doctrine can only be applied in cases where the snow and ice complained of are the result of an entirely natural accumulation following a snowfall.  Therefore, on appeal, Appellant attempted to argue that the accumulation of ice in the parking lot was due to employees of the Appellees plowing and salting the parking lot.

The defendant-appellees produced an expert report, which cited that the snow/ice was the result of natural accumulation — and this report was unopposed by the plaintiff-appellant.  As such, the Court affirmed the lower court’s ruling.  Still, the underlying argument in this case is a reminder that a court reading the phrase “natural accumulation” very narrowly could pose problems for defense counsel. Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons 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.

When is a Win Not a Win? (NY)

In Mitchell v Quincy Amusements Inc. (2019 NY Slip Op 00430), plaintiff sought to recover for personal injuries sustained from a slip and fall on popcorn oil present on the floor of one of the auditoriums in defendant’s multiplex theatre. Plaintiff did not realize she was injured until the movie was over and she realized she was having difficulties rising from her seat.

After the trial was completed, the jury rendered a verdict finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries. The plaintiff then moved to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the motion and thereafter entered judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appealed from the judgment.

The Second Department Appellate Division found that the issues of negligence and proximate cause were so inextricably interwoven, that the jury’s finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries, could not have been reached on a fair interpretation of the evidence. The plaintiff, and her friend who accompanied her on the day of the accident, both consistently testified that the plaintiff slipped and fell on an oily substance on the floor of the auditorium, and the defendants failed to submit any evidence to refute this testimony. Accordingly, the plaintiff’s motion to set aside the jury verdict should have been granted.

The case illustrates that certain fact patters almost require appellate practice before either side can discuss resolution.

Thanks to Meg Adamczak for her contribution to this post.

General Notice of Frequent Occurrence Not Sufficient to Show Actual Notice of Current Transitory Spill (PA)

In Karten v. Shop Rite the plaintiff claimed that she slipped and fell on some debris that was dark, slippery and smelled of rotten banana on the main walkway of the parking lot as she was leaving a Shop Rite grocery store.  The plaintiff sustained injuries to her knee, ankle and lower back, and filed suit for negligent maintenance of the premises.  Defendants moved for summary judgment, arguing that the store had no actual or constructive notice of the spill.

In opposition to the motion, the plaintiff argued that the substance that caused her to fall constituted a dangerous condition of lasting duration.  Plaintiff further argued that Shop Rite had actual notice of a dangerous condition because it had received general complaints regarding debris near the parking lot garbage cans.  However, the Court found that general notice of a frequent occurrence was not sufficient to show actual notice of a current transitory spill.  The Court, in concluding that the substance amounted to a transitory spill, found no evidence of actual notice to the store of the banana’s presence, and concluded that a jury would have to resort to improper speculation.

In the alternative, plaintiff complained that Shop Rite failed to produce information regarding a store employee and the surveillance film of the incidence.  However, the Court found that the plaintiff manufactured these issues solely for the purpose of opposing summary judgment, as they were never pursued by the plaintiff within the discovery period.  Further, the Court found that the allegations in plaintiff’s opposition to summary judgment contradicted her prior pleadings and deposition testimony.

In granting summary judgment, the Court found that Pennsylvania law did not support the presumption that damaged debris served as sufficient circumstantial proof for the duration of a transitory spill, and concluded that the plaintiff failed to meet her burden of establishing constructive notice.  Therefore, summary judgment was granted in favor of Shop Rite.

Thanks to Alexandra Perry for her contribution to this post.

Plaintiff’s Death, before his Deposition, also Fatal to His Estate’s Cause of Action (NY)

The death of a plaintiff can be devastating to that decedent’s cause of action — especially where the decedent dies before being deposed, as in Thompson-Shepard v. Lido Hall Condominiums.  This 2019 First Department decision granted defendant’s motion for summary judgment because there was no way for the cause of plaintiff’s un-witnessed accident to be surmised.

Decedent was allegedly injured when he fell on the stairs at defendant’s premises.  His pre-deposition death, unrelated to the unwitnessed fall, precluded plaintiff’s estate from asserting a conclusive the cause of the accident.

Plaintiff attempted to remedy this defect by submitting an expert affidavit claiming that the irregular and excessive riser heights coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser showed that the defective riser heights caused decedent’s accident.  The court found that the expert failed to raise an issue of fact as there was no witness to link the claimed defect to decedent’s accident as there was no sworn statement or testimony by decedent claiming he fell due to riser height.

It is crucial to remember in trip and fall cases that a plaintiff’s cause of action hinges on the cause of the accident.  When plaintiffs are unable to conclusively determine what caused them to fall, there is no way for defendants to be on notice.  As a practice point, locking in inconclusive testimony as to proximate cause is fatal to a plaintiff’s negligence action.   Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Improper Service: No Harm, No Foul (PA)

A Pennsylvania Court determined that a plaintiff’s good faith attempts to effectuate service tolled the statute of limitations.

In Mandarano v Plink, the Pennsylvania Court of Common Pleas in Lackawanna County heard an interesting case regarding a failure to comply with the Pennsylvania service statute.  In Mandarano, the Plaintiff commenced a premises-liability action one day before the statute of limitations expired by serving the President of the Defendant company via a detective agency.  Under Pa.R.C.P. 400(a), original service in Pennsylvania is only to be effectuated by a Sheriff.  As a result, the Defendant filed preliminary objections seeking that the complaint be dismissed for failure to comply with Pa.R.C.P. 400(a).  The Defendant argued the statute of limitations is tolled only if the plaintiff makes a good faith effort to effectuate service of process on the opposing party, which he argued did not occur. Plaintiff countered, stating that Pa.R.C.P. 126 enables a court to “disregard any error or defect of procedure which does not affect the substantial rights of the parties.”

In analyzing the situation, the Court first relayed the standard for evaluating untimely service.  To warrant the dismissal of an action based upon the untimely service of original process, the record must reflect that either (1) plaintiff demonstrated an intent to stall the judicial machinery by delaying the proper service of process, or (2) the defendant was prejudiced by plaintiff’s failure to comply with the procedural rules governing service.  The type of prejudice required to warrant a dismissal based upon improper service of process involves a “substantial diminution of the defendant’s ability to present factual information in the event of trial which has been brought about by plaintiff’s delay” in the proper service of original process. The Court found no evidence of any prejudice nor that the plaintiff intentionally acted in a manner that was designed to stall the judicial process.  Moreover, since the Defendant’s officer was furnished with timely notice of the filing of this suit, the Court found that the purpose of the statute of limitations was satisfied.

This case poses an interesting situation, where the specific requirements of a statute were not met, but where the Plaintiff’s action complied with the spirit and purpose of the statute.  Most states contain statutes and regulations allowing Courts to disregard any defect of procedure that does not prejudice another party.  The Defendant could not provide any evidence that he was prejudiced, and the Plaintiff was allowed to proceed in his lawsuit.  There was no-harm, and, thus, the Court found no-foul.

Thanks to Malik Pickett for his contribution to this post. Please email Colleen  E. Hayes with any questions.

Howdya Like Them Apples? (NY)

What’s worse than finding a worm in your apple?  Finding half a worm in your apple.  (Wait for laughter.)

Speaking of apples, apple-picking has become a common autumn activity, when orchards convince people to pick their own apples while taking in the ambiance.  But legal principles still obviously apply to orchard-owners and invitees.

A landowner’s duty to maintain property does not include warning or protecting from “open and obvious” conditions that are not inherently dangerous. In the event that there is a concealed or dangerous condition, the landowner then is required to warn of that condition.

Recently, the First Department extended the scope of open and obvious and inherently dangerous in its decision on Mangiafridda v. Masker Fruit Farms, Inc., App. Division 1st Dept. (Jan. 3, 2019)(not yet reported). In Mangiafridda, plaintiff was apple picking at defendants apple orchard when she tripped and fell due to a sloped and rocky roadway on the premises. The defendant moved for summary judgment arguing that the condition of the roadway was open and obvious, inherent in the nature of an apple orchard and that plaintiff could have reasonably anticipated that the roadway would not be smooth.

The lower Court granted the defendants motion and the Appellate Division affirmed. The Court found that not only was the roadway open and obvious but the defendant also posted warning signs regarding the sloped and rocky roadway. The Court found that the defendants did not have a duty to warn or protect of the condition, but even if they did, they met that duty by posting warning signs.

This decision diverges from the typical caselaw on this topic in that the Court found that the condition was “inherent to an apple orchard” not that it was “not inherently dangerous” which the typical standard is when assessing a property owner’s duty as it pertains to an open and obvious condition. This distinction, while slight, opens the door for defendants to argue that a condition is not dangerous if it is one that is “inherent to the location” of the accident and could have been anticipated to be present by the plaintiff. This distinction could be helpful to defendants where accidents occur due to inherent conditions or in typically dangerous circumstances.

Thanks to Dana Purcaro for her 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.

 

Bar Fight Liability: Taking it Outside (NY)

In Covelli v Silver Fist Ltd., 2018 NY Slip Op 08914 (2nd Dep’t December 26, 2018), the plaintiff, an administrator of a decedent’s estate, commenced an action against an individual, Roll, and bar defendants to recover damages for negligence and wrongful death.  Plaintiff’s decedent died from injuries sustained as a result of an altercation with Roll in the public street outside the bar.

The Second Department ruled that it is uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, where defendants had the opportunity to supervise intoxicated guests and that a landowner, not being insurers of a visitor’s safety, have no duty to protect visitors against unforeseeable and unexpected assaults.

Here, as the altercation was outside the premises and control of the bar defendants and was a sudden and unforeseeable event, the lower Court’s order granting the bar defendants motions for summary judgment dismissing the complaint was affirmed. There was no comment regarding the irony of the bar’s name.

This case is of particular interest in that it allows the bar defendants off the hook for liability even when the altercation occurred right outside the bar.  However, although a beneficial opinion towards the defense bar, experienced defense attorneys will be cautious when using this case in similar bar fight scenarios as this opinion appears to show no evidence of the altercation brewing inside the bar before stepping outside.  In cases where evidence is present where the altercation starts developing in the bar it may be more difficult to as clearly differentiate when the bar’s duty to prevent the altercation starts.

Thanks to Jonathan Pincus for his contribution to this post.

Landowner Not Liable for Slip and Fall During Active Weather Event (PA)

In Beauford v. Second Nature Landscaping and Construction, Inc., the plaintiff claimed that he slipped and fell in March of 2015 outside an apartment building owned by Definitive Properties, LLC (“Definitive”).  At that time, Definitive had contracted with Second Nature Landscaping and Construction, Inc. (“Second Nature”) to provide snow removal services.  The contract required Second Nature to automatically respond within 24 hours when the snow reached a certain depth.  On the day of the accident, it began raining around 2:00 PM.  That day, the temperature remained above freezing and at 10:30 PM, the time of the plaintiff’s alleged fall, the temperature was between 44 and 46 degrees Fahrenheit.  According to the plaintiff, he slipped and fell on an ice puddle that formed sometime between 11 AM and 10:30 PM.  Plaintiff filed suit against both Second Nature and Definitive seeking damages for his personal injuries.

Both defendants filed for summary judgment, which was granted, and plaintiff appealed.  The court relied on the hills and ridges doctrine in Pennsylvania, which states that a plaintiff must show snow and ice accumulated on the sidewalk in ridges or elevations of such size and character so as to unreasonably obstruct travel and constitute a danger to pedestrians.  The Court further stated that the only duty of the property owner is to act within a reasonable time after notice to remove the snow and ice when it is in a dangerous condition.

The Court found that although there was no factual dispute that the plaintiff slipped and fell on a purported ice puddle during an active weather event, i.e. at a time when generally slippery conditions prevailed in the community.  Finding that under Pennsylvania law, a landowner has no obligation to correct conditions until a reasonable time after a winter storm has ended, there was no obligation at that time by either Definitive or Second Nature to remove snow and/or ice at that time.  Therefore, defendants’ summary judgment motions were granted.

Thanks to Alexandra Perry for her contribution to this post.