Obscured Open and Obvious Condition May Be a Trap for the Unwary (NY)

Plaintiff tripped and fell on a “hump” on a baseball field in the Town of Smithtown and injured himself as he was attempting to move through the entrance of the field. This “hump” was caused by the Town’s installation of a drain, which was covered with asphalt. This hump extended to the area between the players’ benches and the entrance to the field on the third base side.

Plaintiff sued the Town of Smithtown in Suffolk County Supreme Court. Smithtown moved for summary judgment, contending that the condition of the hump was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiff appealed.

In Dillon v Town of Smithtown, the Appellate Division confirmed the duty of landowner is to maintain its premises in a reasonably safe condition.  And the Appellate Division confirmed that an exception to this duty exists when there is an open and obvious, and not inherently dangerous condition.  Further expanding on the “open and obvious” principle, the Appellate Division held that a condition that is ordinarily apparent to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Applying that distinction to the facts of this case, the appellate court found that the Town failed to prove that the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident.  In reversing the Supreme Court’s summary judgment decision the court highlighted plaintiff’s testimony that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump.

The case highlights the reality that certain defenses, such as the open and obvious defense and other issues of fact need to be resolved by appellate courts, rather than the trial courts. Litigators presented with such issues should be prepared at an early stage to be mindful of the possibility of appellate practice.

Thanks to George Parpas for his contribution to this post.

ANSI Violation Constitutes Evidence of Negligence, According to NY’s Highest Court (NY)

In Bradley v HWA 1290 III LLC, plaintiff commenced an action against the building owners and elevator consultant, seeking to recover damages for wrongful death of an elevator mechanic who was electrocuted as a result of coming into contact with a transformer while servicing a malfunction in one of the building’s elevators.

Defendants moved for summary judgment dismissing the complaint, but said motion was denied by Hon. Lucy Billings, allowing plaintiffs to pursue their common law negligence and Labor Law § 200 claims based on the alleged inadequate lighting in the motor room and the alleged lack of a cover over the transformers. The lower court reasoned that defendants failed to demonstrate that the uncovered transformers and the lighting did not create dangerous conditions readily observable to defendants. The Appellate Court reversed the lower court’s decision, holding that: plaintiffs failed to establish liability based on inadequate lighting in the motor room; the building owner and consultant did not cause or create the hazardous condition; plaintiffs failed to establish that owner or consultant has actual or constructive notice of the hazardous condition; and, any failed to comply with American National Standards Institute (ANSI) requirements did not constitute negligence.

The Court of Appeals disagreed with the First Department’s ruling that ANSI standards cannot be used as evidence of negligence because they are not a statute, ordinance, or regulation with force of law, and held that “to the extent that a violation of ANSI constitutes evidence of negligence, plaintiffs’ reliance on those standards was proper.” Nevertheless, plaintiffs failed to raise a triable issue of fact as to whether defendants had either actual or constructive notice of the alleged dangerous condition, and the Court of Appeals upheld the reversal that granted summary judgment to the defendant.

This is a direct rejection of the rule that standards can only be used to show evidence of negligence if they have force of law required by statute, regulation, or ordinance, which has been a trend in the First and Second Departments.

Thanks to Margaret Adamczak for her contribution to this post.

Insufficient Evidence on Aisle 5 (PA)

On September 18, 2018, in Pace v. Wal-Mart Stores, District Judge Baylson for the Eastern District of Pennsylvania granted Wal-Mart’s motion for summary judgment against plaintiff’s slip and fall claim.

Plaintiff with his wife and two children was shopping as his local Wal-Mart store in Willow Grove, Pennsylvania when he slipped and fell on some grapes in the produce section. His injuries included lumbar spine sprain, lumbar radiculopathy, and a fracture of the right proximal fibula. plaintiff also had to undergo a total knee replacement, allegedly as a result of the incident.

Wal-Mart filed a motion for summary judgment, and Judge Baylson granted the motion because plaintiff presented no evidence that Wal-Mart had actual or constructive notice of the grape(s) on the floor of the produce aisle. Under Pennsylvania law, in order to recover in a slip and fall premises liability case, plaintiff must prove that either the defendant created the harmful condition or that defendant had actual or constructive notice of such condition. Judge Baylson held that plaintiff did not provide sufficient evidence to prove either causation or notice. Plaintiff argued that Wal-Mart may have created the hazardous condition because a video showed a Wal-Mart employee unloading boxes near the area where defendant fell. However, Judge Baylson stated that this was mere speculation and thus insufficient to prove that Wal-Mart created the dangerous condition. Furthermore, plaintiff did not offer any evidence showing that Wal-Mart had actual notice or that the grapes were present on the floor long enough that Wal-Mart should have known about their presence. However, plaintiff requested the court to find that his lack of evidence relating to notice was a result of Wal-Mart’s destruction of evidence and thus argued that Wal-Mart’s motion for summary judgment should be denied. Judge Baylson found that there was a lack of evidence of the existence of any footage and by extension lack of evidence of destruction of the footage; therefore, plaintiff’s mere claim of spoliation barred summary judgment in the case.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian GIbbons with any questions.

PA Court Dismisses Supermarket Slip & Fall Suit

The Pennsylvania Superior Court recently affirmed a trial court’s granting of summary judgment in favor of the defendant grocery store in a slip and fall case.  In Barrios v. Giant Food Stores, plaintiff Rocio Barrios appealed the December 14, 2017 order granting of Giant’s motion for summary judgment.

On June 8, 2011, Barrios claimed that she was shopping at a Giant grocery store when she slipped and fell on a transparent wet substance in the aisle.  Employees from Giant admitted that they saw an orange-sized pool of clear liquid on the floor immediately following Barrios’ fall, however they were not certain of the origin.  Barrios alleged that the liquid was the result of a meat refrigerator case that was leaking, as her fall occurred near the end of the meat aisle. Surveillance video confirmed that Barrios fell near the end of the meat aisle and that, after being alerted to her fall, Giant employees came to her assistance and cleaned the liquid with paper towels.

The Superior Court explained the standard in Pennsylvania that, in order to recover damages in a slip and fall case, the plaintiff must prove that the store owner deviated from his duty of reasonable care under the circumstances and that the store owner knew or should have known that the harmful condition existed.  Furthermore, the plaintiff must show that the store owner either helped to create the harmful condition or had actual or constructive notice of the condition.  In this case, Barrios alleged that liquid came from a leaky meat refrigerator, and also cited repair records produced by Giant which showed that the meat refrigerator had been serviced by a repair company on April 26, 2011; June 10, 2011; and June 24, 2011; as support for her assertion that Giant had actual notice of the dangerous condition.

The court reasoned that, even viewing the facts in the light most favorable to Barrios, the mere presence of water on the floor does not prove that it came from the meat refrigerator.  Furthermore, even if the water on the floor came from the meat refrigerator, Barrios did not show that Giant had notice of the dangerous condition with adequate time to correct it.  Barrios presented evidence of a repair order two months before her fall that was unrelated to any leaking issue, and also repair records for two dates after her fall.  As the court pointed out, the fact that the meat refrigerator was serviced after Barrios’ fall did not constitute evidence that Giant had notice of a leak before Barrios fell.  Thus, the court concluded that Barrios’ theory relied on conjecture and speculation, and affirmed the trial court’s granting of summary judgment in favor of Giant.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Hills and Ridges Doctrine Prompts Dismissal of Suit (PA)

On October 15, 2018, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of defendant Jeanne Coker in Seibert v. Coker.  The case stems from a patch of black ice on Coker’s property which allegedly caused plaintiff to slip-and-fall and injure herself.

On February 6, 2014, T. Seibert slipped on a patch of black ice as she was departing from her home visit to Coker.  In Pennsylvania, the “hills and ridges” doctrine protects landowners from liability for generally slippery conditions resulting from snow and ice where the owner has not permitted the ice and snow to unreasonably accumulate in ridges and elevations.  Thus, in order to recover for a fall on an ice or snow covered surface, a plaintiff must prove: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.  T. Seibert attempted to claim that Coker had constructive notice of the patch of ice, however, she produced no evidence to support this point.  As such, the trial court granted summary judgment in favor of Coker and the Plaintiffs’ subsequently appealed.

On appeal, Plaintiffs’ claimed they produced enough evidence to survive summary judgment, but the Superior Court held that no evidence had been produced to support Plaintiffs’ accusation that Coker had notice, actual or constructive. of the black ice.  As such, the Superior Court affirmed the dismissal.

This case highlights the high burden that the hills and ridges doctrine imposes on plaintiffs in Pennsylvania, and the difficulty of proving constructive notice in such cases.  As such, focusing on this particular element is crucial in determining whether a summary judgment motion is appropriate early on in a slip-and-fall case.  Thanks to Garrett Gitler for his contribution to this post.   Please contact Brian Gibbons with any questions.

WCM Wins “Battle of the Experts” in Slip and Fall

Recently, WCM obtained summary judgment and a full dismissal of all claims against our client in Moran v. Levin, NY County Supreme Court, Index No.: 0151444/2016.  Brian Gibbons and Dana Purcaro prepared the motion, which Dana Purcaro argued before J. Cohen in NY County.

Plaintiff, who was working at our clients’ home as a housekeeper, slipped and fell on an exterior stairwell, and the fall was captured on our clients’ home security camera. Plaintiff sustained a severe fracture in her leg which required surgery and implantation of hardware.

Plaintiff conceded that it was raining at the time of her accident and that she failed to utilize the handrail, despite having knowledge of its presence. All parties conducted a site inspection with experts wherein measurements were taken, including tests to determine the coefficient of friction of the stairs, as they were made of smooth concrete.

Following the site inspection plaintiff exchanged their expert’s report which conceded that the stairs had a high coefficient of friction and that the stairs complied with the Residential Building Code. The expert then opined that despite that fact, the Court should find that the premises did not comply with accepted standards of safety due to the width of the stairwell (approximately 11 feet) and the fact that there was only one handrail. Our expert confirmed that the stairs were compliant with all applicable codes and rejected plaintiff’s claims that any other code should apply to our clients’ single family dwelling.

At oral argument, the Court rejected plaintiff’s expert’s claims that this home should have complied with other building code regulations and any claim that the placement of the handrail was in any way a contributing factor to plaintiff’s accident. Judge  Cohen granted our motion in its entirety and found that there were no questions of fact as to the safety of the stairs, the code compliance of the stairs, or as to whether the stairs were adequately maintained. Judge Cohen pointed to the video of the accident and said that it bolstered our position as it not only showed the stairs to be well maintained but showed plaintiff running down the steps without using the handrail or accounting for the obvious rain on the exterior steps.

This is an exceptional victory as typically a video of an accident is detrimental to a defense and Judge’s often will find questions of fact when there are two conflicting expert reports.   “Battles of Experts” generally refer to testimony before juries.  Here we were able to avoid the expense and exposure of a trial. (To date, no Notice of Appeal has been served.).


New Jersey Homeowners May be Liable to Injured Contractors (NJ)

It is well settled law in New Jersey that a landowner has a duty to use reasonable care to protect an invitee on their property against known or discoverable dangers. However, a recent New Jersey court decision examined the duty owed when that invitee is an independent contractor performing work on the premises.

In the recent case of Gilvary v. Cerza, the plaintiff filed suit against the defendant homeowners when she was injured while working as a home health nurse on the defendants’ property. Specifically, the plaintiff allegedly injured her back while lifting a patient, and claimed that the defendants were responsible for failing to obtain the proper equipment necessary to lift the patient.

The Appellate Court noted that the duty to provide a reasonably safe working place for independent contractors does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform. However, that exception only applies when the landowner does not retain control over the means and methods of the work. In this case, the record revealed that the defendants retained a sufficient level of control and instruction over the nurse’s work, therefore precluding a dismissal of the plaintiff’s claim.

This case is important because it reveals that a homeowner may be responsible for injuries sustained to a contractor working on their premises if the homeowner is directing the work performed.

Thanks to Heather L. Aquino for her contribution to this post.

No Picnic for Plaintiff – Tree Roots are Open and Obvious (NY)

In Ibragimov v Town of N. Hempstead, the plaintiff, while at a picnic at Whitney Pond Park in Nassau County New York, tripped on an exposed tree root and fell after getting up from a picnic table.  He filed a lawsuit in Nassau County Supreme Court against the Town of North Hempstead claiming the Town was negligent in the maintenance of the picnic area and the tree root was dangerous.

The Town filed a motion for summary judgment, arguing that the lawsuit should be dismissed because exposed tree root was an open and obvious condition which was inherent or incidental to the nature of the property; and that the exposed tree root was not inherently dangerous.  The Supreme Court agreed with the Town of North Hempstead and granted the motion, dismissing the case.

The plaintiff appealed the dismissal, and the Appellate Division, Second Department, reviewed the case.  The Appellate Division affirmed that a landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property.  However a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.  The Court ruled that the tree root fell within this principle, known as the “open and obvious” rule.   The Appellate Division agreed with the Supreme Court’s decision and affirmed the dismissal of the lawsuit based upon the open and obvious nature of the tree root in the picnic area of the park.

Thanks to George Parpas for his contribution to this post.

Definition of “Premises” Defines Extent of Coverage (PA)

A Pennsylvania federal court recently decided whether a landlord’s insurer can shift a shopping center’s responsibility in a slip and fall case to a tenant’s insurer, in Liberty Mutual Insurance Co. v. Selective Insurance Co. of America, case number 2:16-cv-00759, U.S. District Court for the Eastern District of Pennsylvania.

In this case, the plaintiff was injured while tripping on an allegedly defective sidewalk outside of Business 21 Publishing LLC, a tenant of Stoney Creek Center.  The plaintiff, an employee of Business 21, ultimately sued Stoney Creek Center and received a confidential settlement.  Stoney Creek Center’s insurer sought reimbursement from Business 21’s insurer for costs associated with defense and settlement of the suit, believing it was an additional insured under its policy.

Business 21 held a liability policy that extended additional insured status to companies that owned and operated the shopping center for claims of bodily injury involving premises owned or used by Business 21.  Stoney Creek Center believed it was an additional insured under Business 21’s policy, taking the position that “premises” included both internal offices and outside common areas.

In deciding whether additional Stoney Creek Center is owed insured status, the court turned its focus on the meaning of the word “premises” as used in the additional insured endorsement of Business 21’s policy.  The judge decided that Business 21’s lease agreement with Stoney Creek Center defines the word “premises” and not the policy.  The judge ruled that the terms of the lease agreement make a clear distinction between Business 21’s internal office space and its right to use the outside common areas, demonstrating that Business 21 intended for “premises” to solely mean its internal offices and not outside common areas such as the walkways and parking lot, thus determining that there was no additional insured coverage owed.

Thanks to Chelsea Rendelman for her contribution to this post.

Attorney Client Privilege Under Siege in Philadelphia.

An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees.  The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions).

This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly).  In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg.  The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services.  In the regular course of discovery, the defense attorney identified 16 employee fact witnesses.  He then interviewed them and took their statements.  Privileged, right?

“No” said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege.  The Waste Services’ attorney was ordered to produce all of the interview notes and statements.

Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal.  Where the appellate court ultimately comes down remains to be seen.  But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent.  Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged.

For more information about this post, please e-mail Bob at