Category Archives: Premises Liability

WCM Wins Summary Judgment on Premises Case in Queens

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This past week, Wade Clark Mulcahy was victorious in its motion for summary judgment, absolving two homeowners of exposure in a sidewalk trip and fall case. Brian Gibbons and Chris Gioia prepared the motion, and Chris argued the motion before Hon. Ernest F. Hart of Queens County Supreme Court.

In, Calle-Gonzalez v. Borukhov, the Court ruled that our clients, homeowners in Queens, were entitled to summary judgment for a trip and fall which occurred on the sidewalk in front of their single family home.  Under New York City Administrative Code’s Section 7-210, liability for sidewalk defects is placed upon owners of the adjacent property.  However, Section 7-210 also provides for an exception of one-two or three family homes.

Judge Hart ruled that we demonstrated that unit was a single family, owner-occupied dwelling.  Additionally, the Court found that the owners had not made negligent repairs, nor had they utilized the sidewalk for a ‘special use’, two exceptions which would deny summary judgment.   Plaintiff’s claims will continue against the City of New York, and will focus on the issue of notice.  But, barring any appellate practice, our clients are out of this case permanently.

The tricky aspect of motions like this one involves plugging up any potential holes that could create a “triable issue of fact,” which could prompt SJ denial.  At argument, Chris Gioia left no doubt that our clients were not liable here, and the Court agreed.  Please email Brian Gibbons with any questions, or contact me on Twitter @bgibbons35.

Sole Proprietorship Companies: The Blurred Lines between Business Entity and Owner (NJ)

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Plaintiff Cesar Asijtuj-Jutzuy is a former construction worker and employee of Bossolina Construction, Inc., appealing from a summary judgment dismissal of his personal injury action alleging injuries he sustained when he fell eleven feet from a scaffolding plank.

In Asijtuj-jutzuy v. Werner Co., plaintiff sued Sikorski Construction, alleging that it was responsible for oversight of the entire project and that it breached its duty to plaintiff by failing to provide a reasonably safe place to work. Although plaintiff also brought product liability claims against the manufacturer, this article will focus on the negligence claims against Sikorski Construction.

The underlying facts pertaining to the accident were undisputed: plaintiff was standing on an aluminum work platform which was positioned at a height of approximately eleven to twelve feet. Plaintiff was in the process of removing stucco with a power grinder, when the grinder suddenly jammed and kicked plaintiff back off the platform causing him to fall and strike his head on the cement pavement below.

There was a dispute whether Sikorski worked on the project as an individual. Sikorski testified that he did not, but the owner of Bossolina Construction testified that Sikorski obtained permits for the project. Further, plaintiff alleged that Sikorski was responsible for running the job and implementing safety measures. Sikorski testified that he had undergone a lumbar fusion the month before plaintiff’s accident and was still recovering during plaintiff’s accident. Sikorski testified that he was unable to participate in the project in any capacity. The trial court had granted summary judgment to Sikorski Construction on the ground that there was no evidence of it having a contract with respect to this project and the lack of evidence that Sikorski was on the project site. In doing so, the trial court noted that Sikorski had not been named as an individual defendant.

The appellate court found that Bossolina did not distinguish between himself as an individual and Bossolina Construction. Sikorski, much in the same way, did not distinguish between himself and his company when providing testimony. For example, when Bossolina testified he subcontracted the job to Sikorski, he did not, individually, have a job to subcontract out.  Thus, when he testified he subcontracted the project to Sikorski, he likely meant Bossolina Construction subcontracted the job, and he may have meant – and a jury could have reasonably inferred – Bossolina Construction subcontracted the project to Sikorski Construction. As such, even if Sikorski himself was not physically at the project site, there was a question as to whether Sikorski Construction had agreements and duties arising from the agreements.

Citing the Burwell v. Hobby Lobby Stores case, in a sole proprietorship, the business and its owner are one and the same. Thus, Sikorski could not avoid liability by using a name for his business when his business was a sole proprietorship. The appellate court held that the trial court should have permitted plaintiff to amend his pleadings to name Sikorski as an individual defendant or in the alternative, should have amended the pleadings itself. The appellate court reversed and remanded the matter for trial, holding that Sikorski and Sikorski Construction were indistinguishable as legal entities. As such, the question of Sikorski’s involvement with the project was a question of fact that should have been determined by the jury.  Thanks to Steve Kim for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter (@bgibbons35) with any questions.

Under PA Premises Law, to be an Invitee Requires an Invitation

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The Pennsylvania Superior Court recently affirmed a trial court’s defense verdict after a resident in a townhome community brought an action against the homeowners association after she tripped and fell on branches located on the steps to a common area.

In Hackett v. Indian Kings Residents Association, 2018 PA Super 240, No. 3600 EDA 2017, Hackett appealed the jury verdict that declared IKRA was not negligent following a two-day trial.  Hackett claimed that, in January 2013, she fell on branches that were on the steps of a common area leading to her townhouse in the Indian King residential community, causing her to undergo three surgeries over the next two years.  The jury returned a verdict of “no negligence” on behalf of IKRA.  On appeal, Hackett raised the issue that the trial court erred in charging the jury that she was a licensee over her objection and assertion that she was an invitee with regard to the common area.

The Superior Court began its opinion by explaining the fundamental principle under tort law, that, in order for liability to be imposed upon a defendant, the plaintiff must first establish the presence of a duty incumbent on the defendant.  Pennsylvania, in adopting the Restatement (Second) of Tort’s approach, has established that a landowner’s duty toward a third party is dependent upon whether the third party is a trespasser, licensee or invitee.  Because Hackett was a resident of the residential community, neither party argued that she was a trespasser in this scenario.  Therefore, the court analyzed the difference between the designation as a “licensee” versus a “invitee.”

A licensee is a person who is privileged to enter or remain on the land by virtue of the landowner’s consent – the entrant is there for her own purposes and the landowner has no interest in the third party’s entrance onto the land.  Essentially, a licensee is present on the property by virtue of the permission of the landowner.  An invitee on the other hand, is basically divided into two sub-categories – a business invitee or a public invitee.  A business invitee in one who is invited to enter or remain on the land for a purpose directly or indirectly connected to the business dealings of the landowner.  A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public by the landowner.

Hackett argued that she was an invitee because IKRA’s is property manager who is responsible for keeping the common areas safely maintained.  Thus, her payment of maintenance fees to IKRA rendered her an invitee.

But the Superior Court concluded that Hackett was a licensee when she entered the common area.  First, the court noted that Hackett was not a business invitee who entered the common area for the purpose of conducting business with IKRA.  Second, the court determined that Hackett was not a public invitee and in so doing the court articulated the distinction between permission and invitation which helps to highlight the difference between licensee and invitee.  The court noted that permission is different (and lesser) than invitation in this context – an invitation is conduct which justifies others in believing that the landowner desires the entrant to enter the land, whereas permission is conduct justifying others in believing that the landowner is willing that the entrant may enter the land if the entrant desires to do so.

While the line between invitation and permission may seem like a fine one, the court explained that mere permission is sufficient to make a visitor a licensee, however it is not sufficient to make the visitor an invitee.  The court noted that IKRA granted all tenants permission to enter the common area as they pleased, however nothing in the tenants’ lease agreements could be interpreted as a specific invitation to use the common area.  Furthermore, the court stated that no particular fees or dues were paid by the residents in order to enable them to use the common area. Ultimately, when Hackett fell, she was in the common area because she had longstanding permission by IKRA to come and go as she pleased; but she was not present in the common area by virtue of any invitation or specific purpose connected to IKRA.  Therefore, she was properly designated as a licensee and the trial court verdict was affirmed. Thanks to Greg Herrold for his contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions.

Church is a 1-2 Family Dwelling Under the Labor Law’s Homeowner Exception (NY)

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In Bautista v Archdiocese of NY, Plaintiff was injured when he fell from a scaffold while repairing a detached garage associated with a church rectory used for both residential and church purposes. Against the Church, plaintiff asserted common-law negligence and claims under the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for construction workers, and the workplace safety statute applicable to owners and contractors.

Plaintiff initially moved for partial summary judgment on the Labor Law § 240(1), and the Archdiocese cross-moved for summary judgment dismissing the complaint. Both motions were denied. The Archdiocese appealed.

On appeal, the Appellate Division First Department  reversed, granting the Archdiocese’ motion for summary judgment on Labor Law §§ 240(1) and 241(6) under the 1-2 Family Dwelling exception for “owners of one and two-family dwellings who contract for, but do not direct or control the work”. The Court held that the certificate of occupancy indicated that the record constituted a dwelling and a private garage, and that Plaintiff’s assertions that the garage was exclusively restricted to use by teachers at an elementary school owned by the church were unsupported by the record, thereby failing to raise issues of fact as to the applicability of the homeowner’s exemption.

Moreover, the Archdiocese established that it did not have the authority to supervise or control the job and thus was not liable as an agent of the owner under Labor Law § 240(1) and Labor Law § 241(6). As such, the Court held that the Labor Law § 200 and common-law negligence claims should be dismissed because plaintiff’s fall from scaffolding involved the means and methods of his work, which were supervised and controlled solely by his employer.

Thanks to Margaret Adamczak for her contribution to this post.

Failing to Preserve Arguments for an Appeal and Facts that “May or May Not” Exist (NY)

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In Gordon v City of New York, the plaintiff sued the LIRR, the City of New York, and the Metropolitan Transportation Authority (“MTA”) for injuries that occurred while performing excavation of rock under Grand Central Terminal.  Plaintiff fell from a ladder that slipped out from plaintiff and he fell to the tunnel floor while fixing lights 15-20 feet above him.  The defendants moved for summary judgment dismissing the complaint, which included Labor Law §§ 240(1) and 241(6) claims while the plaintiff moved for summary judgment on the issue of liability on the Labor Law §240(1) claim.  The lower court entered an order granting the City of New York and the LIRR’s motions for summary judgment and denying plaintiff’s motions against all defendants.

On appeal, the First Department affirmed the order granting the City of New York and the LIRR’s motions because affidavits were submitted based on the affiant’s work and job duties for the City of New York and the LIRR and their knowledge of and familiarity of their business operations.  The affidavits established that they did not contract for plaintiff’s work, nor did these defendants perform, supervise, or control any construction work at the subject premises.  As plaintiff’s sole theory of the City’s ownership was that it owned land on which the project was located was not raised before the motion court, it was not properly before the Court.  The plaintiff did not raise any other evidence to dispute the claims and the order granting summary judgment for the City of New York and the LIRR were affirmed.

However, on appeal, plaintiff’s entitlement under Labor Law §240(1) against the MTA, however was successfully argued because the record established a failure to provide plaintiff with proper protection for him to perform the elevation-related task of re-positioning the stadium light.  The MTA’s opposition with an engineer’s testimony that there “may or may not have been” platforms available to tie the ladder to, was not enough to raise a triable issue of fact.  The lower court reversed as to the MTA.

This opinion contains a lesson about the long term effects of failing to raise an argument in the motion court that not only affects the decision in the motion court, but also affects the appeal.  Thus, it is important to have counsel with the foresight to preserve arguments in anticipation of appeal.

Furthermore, the case also demonstrates the importance of early defense counsel oversite in investigating the facts and witnesses with knowledge in anticipation of motion practice.  Experienced counsel will be able to deal with gaps of knowledge from the witnesses provided by an insured.  Rather than rely on such ambiguous testimony regarding things that “may or may not” exist, experienced counsel should take steps to investigate further to find records or other witnesses  that may have actual knowledge of the circumstances of the accident that fill in those gaps to prevent a plaintiff being granted an early summary judgment.

Thanks to Jonathan Pincus for his contribution to this post.

Can a Resident of a Homeowners’ Association Be Deemed an Invitee in the Common Areas of Their Own Community? (PA)

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In Hackett v. Indian King Residents Association, the plaintiff, a resident of the defendant homeowners’ association, brought suit to recover for injuries she sustained after she fell on a common area leading to her town home in a residential community managed by the defendant.  The residential community in which she lived is a mixed town home/single family residence community in West Chester, Pennsylvania.  The plaintiff claimed that she could not see branches in the dark as she climbed the steps that evening.  After two days of trial, the jury found that the defendant homeowners’ association was not negligent.

On appeal, the plaintiff argued that the trial court erred by charging the jury that the plaintiff was a licensee rather than an invitee.  Particularly, she argued that by paying maintenance fees, she became an invitee, and that the defendant’s business is that of property manager and thus it is responsible for keeping common areas safely maintained.  Pursuant to the declaration of the homeowners’ association, the plaintiff used the common areas with the defendant’s permission.

The duty of the defendant to a licensee versus that of an invitee is different; the duty to an invitee is more stringent.  The Court reviewed the definition of licensee, and also looked to the facts, determining that the plaintiff was a resident of the community, she used the common area with the defendant’s permission, not by invitation, and the declaration granted residents an easement of enjoyment regarding common areas.   The Court found that this essentially conferred permission to each resident to use the common areas.  The Superior Court found that the trial court properly instructed the jury that the plaintiff was a licensee, as there was no evidence offered that the plaintiff entered the property upon invitation or for a purpose for which land is held open to the public.  The court noted that the distinction between invitation and permission forms the basis for distinguishing an invitee from a licensee.  Thus, the trial court’s conclusion that the plaintiff was a licensee was affirmed on appeal.

Thanks to Alexandra M. Perry for her contribution to this post.

No Written Notice = No Dice for Plaintiffs in NYC (NY)

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It has long been held pursuant to the New York City Administrative Code that the City of New York cannot be found liable for accidents occurring within it due to dangerous conditions unless the City had prior written notice of the existence of the condition. The exceptions to this being where the City created a defect or the defect was caused by special use of that benefited the City.

On August 22, 2018, the Appellate Division, Second Department upheld this stringent standard to obtain a recovery from the City for potholes within the five boroughs. In Allen v. City, plaintiff was injured when he fell off of his bike after riding over a pothole in a City owned and operate street. Defendant City moved for summary judgment based on the fact that there was no prior written notice of the condition and none of the exceptions applied. The lower Court denied the City’s motion and found that a reference to a raised or elevated area on a “Big Apple Map,” constitutes prior written notice.

The Second Department unanimously reversed the lower Court’s decision and found that the City showed that it did not have prior written notice and that a “Big Apple Map” is insufficient to impose notice onto the City.

In Budoff v. City, plaintiff was injured when he fell off of his bike due to a pothole present in a designated bike lane on a City owned and operated street in Brooklyn. The lower Court granted the City’s motion and plaintiff moved to reargue. The lower Court granted reargument and upheld its decision, plaintiff appealed. The Court, which normally will not hear appeals on reargument, decided it was within its discretion to do so here as the underlying Order was upheld upon reargument.

The Court unanimously upheld the lower Court’s determination that there was no prior written notice of the condition. IT also found plaintiff’s argument that the City benefited from the special use of the bike lane as it “attracted tourism” to be unveiling and insufficient to impose liability onto the City.

The two decisions discussed above, while somewhat different, show how stringent the Second Department is about finding liability against the City. It is decisions like this that push plaintiffs to try to impose liability onto anyone but the City if possible as the burden in showing the City’s negligence is high, and often impossible to meet. In our practice, we see many cases involving defective sidewalk conditions and more often than not, plaintiffs go through great lengths to try to impose liability onto anyone they can find as to make their chances of recovery greater.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Fourth Department Gives Buffalo Bills First Win of the Season

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As we are less than one month away from the kickoff to the first week of the new NFL season – we report on the case of Wrobel v. Doe where plaintiff, a Miami Dolphins fan, was allegedly assaulted by Buffalo Bills fans in the stands at Ralph Wilson Stadium. Plaintiff alleges that during a Dolphins-Bills game (Bills won 19-14), he was sitting in his seat when plaintiff felt a punch to the head and he was attacked by three men. Plaintiff suffered an injury to his knee and he brought suit against (among numerous parties) the Buffalo Bills and the security company hired to police the stadium. The lower court dismissed the case against the defendants and the plaintiff appealed.

The Appellate Division Fourth Department ruled that the conduct of the Bills and the County was not a proximate cause of his injuries and that an independent act far removed from the allegedly negligent conduct of the Bills and the County, the assailants’ unprovoked criminal assault broke the causal nexus between such allegedly negligent conduct and plaintiff’s injury. The attack was extraordinary and not foreseeable or preventable in the normal course of events.

The Fourth Department further stated ““[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever rival football fans were gathered, surely an unreasonable burden.”

The Fourth Department affirmed the lower Court’s decision because the plaintiff could not prove that the defendants were on notice of any negligent behavior of the fans and the assault was unprovoked and defendants were not liable for the independent acts of the fans that caused plaintiff’s injury.

Thanks to Paul W. Vitale for his contribution to this post.

Defect in an Interior Stairway in a Residential Building Was Trivial and Not Actionable

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Although a landowner has a duty to maintain its property in a reasonably safe condition, trivial defects are not actionable. There is no predetermined height differential that renders a defect trivial. Instead, courts must consider the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury. Thus, a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperils the safety of a pedestrian.

Stanley v. New York City Housing Authority, 2018 NY Slip Op 03726 (2nd Dep’t, May 23, 2018), demonstrates the rule in action. Plaintiff claims to have tripped on a raised nosing of a step on an interior staircase of a residential building causing a fall. During sworn testimony, plaintiff provided photographs of the alleged defective condition on the stairway. Defendants retained an expert to conduct an inspection of the accident location in light of the testimony. The expert concluded that the alleged defect was located three inches from the left stairway wall, directly underneath the handrail, and that the height differential between the nosing and the stair itself measured approximately one-half inch at its greatest depth.

The defect was deemed trivial based on the location of the defect, which was not on a walking surface of the stairway, along with the fact that the height differential was minimal and the danger posed to the safety of a pedestrian was marginal. Accordingly, the Appellate Division, Second Department, found that the lower court erred in denying defendant’s motion for summary and reversed the lower court’s decision thereby granting defendant’s motion for summary judgment dismissing the complaint.

Thanks to Margaret Adamczak for her contribution to this post.

Fourth Department Gives Buffalo Bills First Win of the Season

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As we are less than one month away from the kickoff to the first week of the new NFL season – we report on the case of Wrobel v. Doe where plaintiff, a Miami Dolphins fan, was allegedly assaulted by Buffalo Bills fans in the stands at Ralph Wilson Stadium. Plaintiff alleges that during a Dolphins-Bills game (Bills won 19-14), he was sitting in his seat when plaintiff felt a punch to the head and he was attacked by three men. Plaintiff suffered an injury to his knee and he brought suit against (among numerous parties) the Buffalo Bills and the security company hired to police the stadium. The lower court dismissed the case against the defendants and the plaintiff appealed.

The Appellate Division Fourth Department ruled that the conduct of the Bills and the County was not a proximate cause of his injuries and that an independent act far removed from the allegedly negligent conduct of the Bills and the County, the assailants’ unprovoked criminal assault broke the causal nexus between such allegedly negligent conduct and plaintiff’s injury. The attack was extraordinary and not foreseeable or preventable in the normal course of events.

The Fourth Department further stated ““[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever rival football fans were gathered, surely an unreasonable burden.”

The Fourth Department affirmed the lower Court’s decision because the plaintiff could not prove that the defendants were on notice of any negligent behavior of the fans and the assault was unprovoked and defendants were not liable for the independent acts of the fans that caused plaintiff’s injury.

Thanks to Paul W. Vitale for her contribution to this post.