Category Archives: Premises Liability

Reliance Upon American Society of Testing Material and Consumer Product Safety Commission Not Enough to Overcome Prima Facie Showing of Entitlement to Summary Judgment

Posted on by

In Boland v. North Bellmore Union Free Sch. Dist., the Appellate Division, Second Department reversed a denial of summary judgment for defendant. The court found that plaintiff’s opposition, which contained an expert citing to the American Society of Testing Material and Consumer Product Safety Commission was improperly considered by the lower court.  The appellate decision held “these standards…are guidelines and not mandatory, and are insufficient to raise a triable issue of fact regarding negligent installation or maintenance.

The case involved a student that was injured when she fell from an apparatus in the defendant’s school playground during recess. The child and her mother filed a lawsuit in Nassau County Supreme Court against the school district, alleging negligent training and supervision and negligent maintenance of the playground.

Once the lawsuit was filed, the defendant school district filed a motion for summary judgment, asking the Court to dismiss the lawsuit.  In opposition to the motion, the plaintiffs  submitted an expert report that found that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet American Society of Testing Material standards or standards established by the Consumer Product Safety Commission.

The Supreme Court granted part of the motion, dismissing the allegations of negligent training and supervision, but the Court denied the motion to dismiss the allegation of negligent maintenance of the playground, based upon the expert report submitted by the plaintiffs.

On appeal, the Appellate Division, Second Department found that the Supreme Court’s ruling dismissing the negligent training and supervision claim was correct because school district demonstrated that it provided adequate training of its staff and playground supervision, and that the level of training or supervision was not a proximate cause of the accident.   However, the Appellate Division found that the Supreme Court incorrectly denied the motion to dismiss the negligent maintenance claim.  The Appellate Division reversed the Supreme Court’s findings, and held that the defendant established its prima facie entitlement to judgment as a matter of law.  The appellate decision notes that the defendant submitted evidence which demonstrated that it adequately maintained the playground and that it did not create an unsafe or defective condition.  Accordingly, Appellate Division found that the Supreme Court should have granted that branch of the defendant’s motion, which was for summary judgment dismissing so much of the complaint as alleged negligent maintenance of its premises, despite the plaintiff’s expert’s reliance on the guidelines.

Thanks to George Parpas for his contribution to this post.

Lessor Can’t Pass the Buck to the Lessee

Posted on by

In Bonnie Sanders v. Angela Dukes, Sanders was staying with her friend on the second story of a rooming house in Philadelphia.  As Sanders left the room her shoe got caught in a loose metal strip on top of the staircase.  Dukes’ husband was the property manager for the rooming house, and went there monthly.  He never made any repairs to the stairs or the metal strip.  At the close of plaintiff’s case at trial, Dukes moved to dismiss arguing that the tenant (plaintiff’s friend) was aware of the dangerous condition, therefore, alleviated Dukes’ own liability for the condition. The court rejected the argument, and found that the Dukes, as the lessor was liable for a dangerous condition in the common area that could have been discovered by exercising reasonable care.  Since Sanders was a lawful guest, Dukes owed her a duty of care.

This case reminds us that a lessor often owes a duty of care to those that enter the premises, regardless of any duty owed by the lessee.

Thanks to Robert Turchik for his contribution to this post.

Dismissal of Social Guest’s Personal Injury Action Upheld on Appeal

Posted on by

In Marroquin v. Espinoza, plaintiff slipped and fell on black ice on her cousins’ walkway.  Plaintiff and other family members had been staying at the house  to celebrate Thanksgiving.  On the Saturday after Thanksgiving, it had rained and snowed, but plaintiff did not go outside.

Plaintiff went out shopping with her mother the next day.  It was not raining, but it was cold.  She had no difficulty getting to her car  in the driveway.  Upon her return, plaintiff parked her car on the street in front of the house.  She went inside for a few hours and then proceeded to pack her car with luggage.  She had no difficulty walking out of the car with her luggage.  However, when she was approaching the car to go home t, she slipped on the walkway leading to the street.  She claimed to have slipped on black ice.

The trial court dismissed plaintiff’s complaint on summary judgment because, as a social guest, she had the burden of proving that her cousins, the defendants, knew or should have known about the black ice on the walkway.   Residential homeowners in NJ have a duty to render private walkways on the property reasonably safe, and to clear snow and ice that presents a danger to known or expected visitors.  The residential owner also has a duty to warn of any dangerous condition of which he or she has actual knowledge, and of which the social guest is unaware.

The record showed that plaintiff’s cousins were unaware of the icy condition on the front walkway.  Neither plaintiff nor defendants said that they knew of the ice prior to the fall.  The defendants testified that they cleared and salted the walkway the day before plaintiff’s fall, and one of the defendants testified that the walkway was clear the morning before plaintiff’s fall.  Finally, plaintiff proffered no evidence that defendants’ should have known that light rain would cause black ice.  This is because plaintiff had no expert to discuss the meteorological conditions or the nature of the walkway.

This case is a good illustration of how defense counsel can obtain a dismissal in the absence of an appropriate liability expert report from plaintiff.

Thanks to Michael Noblett for his contribution to this post.

 

 

 

 

Defendant Slips Away from Liability in Snow Case (NY)

Posted on by

In Williams v New York City Hous. Auth., the Appellate Division, First Department unanimously affirmed a lower court ruling that granted defendant’s motion for summary judgment.  In Williams, plaintiff allegedly slipped and fell on ice while walking on a concrete walkway in front of defendant’s building.  While the defendant was unable to use the storm-in-progress defense, plaintiff failed to prove notice, or that defendant created the condition.

The weather records showed that trace amounts of freezing rain had stopped several hours before plaintiff’s accident and as such, the storm in progress defense was inapplicable.  Plaintiff’s own evidence, however, belied her contention that defendant created the icy condition.

Plaintiff testified that she did not see ice the day before the accident when she walked through the area and her expert averred that weather records showed that ice was not present on untreated exposed surfaces for several days before plaintiff’s fall.  The expert speculated that the ice formed as a result of the melting and refreezing of snow that was piled along the fence in connection with a snowstorm the previous week.  However, the weather records showed that the temperature never went above freezing in the days before the accident and only rose to 34 degrees less than an hour before plaintiff fell.

Additionally, defendant was able to establish lack of notice.  The assistant superintendent testified that the area plaintiff fell was salted and sanded three times during her shift and she inspected the area an hour before the accident.  No complaints were received about the area nor were there any prior incidents.  Defendants have to be able to show reasonable measures taken during snow removal and proper inspections.  As such, record keeping is very important in order to win affirmative summary judgment motions.

In short, the plaintiff’s theory was that the snow had a “freeze and thaw” effect, which lead to the icy condition.  Except the weather records disproved the “thaw” half of plaintiff’s theory.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Throw Enough Mud at the Wall, Some Will Stick (NY)

Posted on by

In PDF Singletary v. Alhalal Rest., Inc., 2018 WL 3371313, at *1 (2nd Dept. 2018), the plaintiff appealed an order of the Supreme Court, Kings County, that granted the defendants’ motion for summary judgment.

Plaintiff alleges that on March 17, 2015, while walking on a sidewalk adjacent to the defendants’ premises in Brooklyn (hereinafter the premises), a “hanging awning, its steel supports and mounting infrastructure suddenly and unexpectedly fell” and injured the plaintiff.  The defendants moved for summary judgment, contending that the plaintiff was not struck by the awning. The defendants produced what they claim is photographic evidence of the plaintiff arriving at the premises after the awning fell, and alleged that the plaintiff falsely claimed that she had been struck by the awning. The plaintiff opposed the motion, submitting her own affidavit, photographic evidence of her and ambulance and hospital records.

The Second Department reversed and reinstated the complaint, reasoning that the photographic evidence submitted by the defendants did not establish that the plaintiff fabricated her claims. Summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.” See Ruggiero v DePalo, 153 AD3d 870, 872. Furthermore, the Supreme Court should not have granted summary judgment on an issue not raised by the defendants’ motion. The plaintiff had no opportunity to address the issue of whether the defendants had notice of the defective condition that allegedly caused the accident. The plaintiff’s “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. ” See Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54.. Apart from considerations of simple fairness, allowing a summary judgment motion by a defendant to bring up for review every possible defense that could be asserted by that defendant would be tantamount to shifting the well-accepted burden of proof on summary judgment motions.   Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

It is not uncommon for a judge to make a ruling based on his or her own interpretation of the law and facts as they were presented. However, the judge must make their ruling pursuant to the law and arguments presented in the motion papers. Therefore, when moving for summary judgment, it is imperative to make every argument possible as the judge is unable to fill in the gaps for you.    Some of the issues argued at the appellate level were not preserved for appeal.

So here, the defendants are left with a strong liability defense at trial, but are also left with litigation costs, expert costs, and the the risk of a potentially compelling plaintiff to a jury.  Thanks to Jonathan Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

 

 

 

 

Injuries Sustained During Police Officer’s Hot Pursuit Placed On Ice (NY)

Posted on by

In order to succeed on a premises liability claim for negligence based upon a defective or dangerous condition, a plaintiff must show that the dangerous condition either was created by the defendant or that the defendant had either actual or constructive notice of the defective condition. There is a large body of case law on what will constitute constructive notice and how it (or the lack of it) must be established.

Recently, the Second Department weighed in on this issue. In Palladino v Monadnock Construction, the plaintiff was a former police officer who claimed he was injured when he fell on the site of a construction project while pursuing robbery suspects. He claimed that he tripped on “construction debris” and sued the general contractor alleging causes of action for the negligence and violations of General Municipal Law § 205-e.

The defendant moved for summary judgment and the Supreme Court denied the motion, and the defendant appealed. The Appellate Division, Second Department, reversed the lower court’s decision denying summary judgment and found that the general contractor demonstrated its prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action by establishing that it did not create or have actual or constructive notice of any dangerous condition on the premises. The construction manager testified that inspections of the subject area performed prior to the accident did not reveal the existence of any dangerous conditions. Plaintiff testified that he did not see any debris, and at his deposition he could not identify the alleged debris or describe it. Based upon this testimony, the Appellate Division found that plaintiff had failed to come forward with sufficient evidence to raise a triable issue of fact as to the existence of a dangerous condition created by the defendant, or of which the defendant had actual or constructive notice.

As to the GML § 205-e claim, the Appellate Division found that defendant had established its entitlement to judgment as a matter of law dismissing those claims as well. The defendant established that the cited regulations pertaining to public streets and sidewalks cited by plaintiff did not apply, since the area in question was closed to the public during the construction, including at the time of the plaintiff’s accident, and also demonstrated that it did not violate any of the remaining statutes and regulations cited by the plaintiff. The plaintiff failed to raise a triable issue of fact in opposition.  Thanks to Jorgelina Foglietta for her contribution to this post.  Please email Vincent Terrasi with any questions.

No Notice, No Negligence (NY)

Posted on by

In Bombino-Munroe v Church of St. Bernard, the Appellate Division, Second Department reviewed a Supreme Court decision concerning notice in a slip and fall on ice case where the plaintiff alleged the defendant was negligent.

The plaintiff slipped and fell near the rear entrance of her child’s preschool.  Specifically, the plaintiff testified that she used the front entrance to enter the building and dropped off her son at his class.  She was attempting to leave the premises through the rear entrance when the slipped on ice.  A lawsuit was filed in Westchester County Supreme Court.  The preschool director testified that she entered the building through the rear entrance about 90 minutes prior to the incident, and she did not see any ice on the ground. The injured plaintiff testified that she did not see the ice before she fell.

The defendant preschool moved for summary judgment, arguing that the lawsuit should be dismissed because the preschool did not have the requisite notice of the icy condition to be held liable in this accident.  The Supreme Court denied this motion, finding that there was a triable issue of fact as to whether the defendant had constructive notice of the alleged ice condition.

On appeal, the Appellate Division, Second Department, discussed the law as to notice.  The law is that “a property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence.  In this case, the plaintiff did allege the defendant created the icy condition; so the only way the preschool could be liable is if it had notice.

After reviewing the evidence, the Appellate Division concluded that the Supreme Court erred in its decision and should have dismissed the lawsuit because the preschool did not have actual or constructive notice that there was an icy condition.  In addition, the Appellate Division reaffirmed the principle that general awareness that snow or ice may be present during winter months is legally insufficient to constitute notice of the particular condition that caused the injured plaintiff’s fall.   Thanks to George Parpas for his contribution to this post.  Please email Vincent Terrasi with any questions.

In Premises Liability Cases, First Step for Business Invitees Is Providing a Dangerous Condition

Posted on by

In Wasnetsky v. Quinn’s Market, plaintiff and her husband, the decedent, were in the supermarket when the decedent suddenly fell, struck his head on the linoleum floor, and lost consciousness.  Five days later he passed away. Plaintiff sued alleging the decedent slipped on liquid on the floor. At the end of discovery, the supermarket moved for summary judgment on the basis that plaintiff failed to produce any evidence of a dangerous condition at the time of the slip and fall.  In similar slip-and-fall cases, evidence of the condition is shown by eye-witness testimony that liquid or another substance was present on either the floor or the body and clothes of the injured person.  In this case, there were three eye witnesses, and all three testified there was no liquid or other substance.  As a result, the court determined there was no dispute that a dangerous condition did not exist at the time of the slip and fall.

Thanks to Robert Turchick for his contribution to this post.

 

 

 

No Property Damage for Negligent or Intentional Omissions in Home Sales (PA)

Posted on by

In, Foglia v. Metropolitan Property and Casualty Insurance Company, the Eastern District of Pennsylvania recently ruled that an insurer did not act in bad faith or breach of contract when it refused to defend and indemnify a policyholder in an underlying lawsuit in which the policyholder was accused of concealing water damage.  The Court determined that there was no “property damage” to trigger the insurer’s duty to defend.

Initially, a lawsuit was brought by Jason and Emily Konn (“Konn”) who had previously purchased a house from Merle Foglia (“Foglia”).  Foglia signed a seller’s disclosure that indicated that there was no water leakage, accumulation, dampness, or infiltration within the house or other structures.  At no point did Foglia indicate that the home had a history of water infiltration or damage.  After a few months, Konn discovered significant water damage within the lower level of the house.  As a result, Konn sued Folgia for fraud and intentional concealments, intentional misrepresentation, negligence, and consumer protection violations.

After Foglia was served, she sought defense and indemnification from her homeowner’s insurance policy from Metropolitan Property and Casualty Insurance Company (“Metropolitan”).  Within the policy, Metropolitan would pay “all sums for bodily injury, property damage and personal injury to others for which the law holds you responsible because of an occurrence to which this coverage applies.”  Metropolitan later denied coverage because an “occurrence” had not taken place and that, even if it had, policy exclusions, such as a “failure to disclose” exclusion, were in place that precluded coverage.

As a result of the coverage denial, Foglia sued Metropolitan under claims of breach of contract and bad faith.  In response, Metropolitan countersued for declaratory judgment absolving it of any coverage obligations.  The Court granted summary judgment in favor of Metropolitan as it determined that the Konn complaint did not allege an “occurrence” or the type of “property damage” that required Metropolitan to provide coverage.       The Court found that Metropolitan had no duty to defend Foglia against the Konn lawsuit.

Although the Pennsylvania Supreme Court had not ruled on the issue, the 3rd Circuit has repeatedly held that negligent omissions in home sales does not constitute property damage.  Specifically, in a similar case, the 3rd Circuit stated that the “acts at issue in the underlying lawsuit amounted to a misrepresentation of the status of the home, whether it be intentional or negligent.  At no point did [the insured’s] acts ever inflict damage on the home that was not already in existence prior to the acts in question.  See USAA Cas. Ins. Co. v. Bateman, 2008 WL 4761718, at *1 (E.D. Pa. Oct. 30, 2008).  Additionally, the Court determined that the Konn lawsuit did not allege an “occurrence” as the policy defines an occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the term of the policy.”

Thanks to Zhanna Dubinsky for her contribution to this post.  Please write to Tony Pinto for more information.

Non-Commercial Vacant Landowners Owe No Duty to Maintain Abutting Sidewalks (NJ)

Posted on by

Plaintiff, in Ellis v. Hilton Methodist Church, rolled the dice of life and sued the owner of a vacant church – the Hilton United Methodist Church and the Board of Trustees of the Greater New Jersey Annual Conference of the United Methodist Church – for damages arising from injuries he sustained when he slipped and fell on a sidewalk. He argued a recent decision imposing liability to maintain abutting sidewalks on the owner of a vacant, boarded-up commercial property should apply to vacant churches. His argument, however, was not infallible.

Generally, a landowner in New Jersey does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner’s property. Dupree v. City of Clifton, 351 N.J.Super. 237, 241 (App.Div. 2002). An exception applies to commercial landowners, who are responsible for maintaining, “in reasonably good condition,” the sidewalks abutting their property. Stewart v. 104 Wallace Street, 87 N.J. 146, 157 (1981). The Court expanded the commercial landowner exception in Gray v. Caldwell Wood Products, Inc., 425 N.J.Super. 496 (App.Div. 2012), which held that commercial landowners retain their duty to maintain abutting sidewalks, even if – as was the case in Gray – the commercial building was vacant and boarded-up.

The plaintiff, in Ellis, sought to expand this exception. The argument was simple: a commercial landowner has a duty in New Jersey to maintain abutting sidewalks; the Court recently extended this duty to maintain abutting sidewalks beyond the life of a commercial property; and since landowners now owe pedestrians a duty to maintain abutting sidewalks of vacant and boarded-up commercial properties, public policy warrants an extension to the owners of a vacant and boarded-up churches. The Court not only disagreed, but also affirmed the duties of commercial property owners do not extend to noncommercial and residential landowners.

The Court reaffirmed that the church at issue in this case is not a commercial building. Nothing in the record, the Court noted, indicated it was ever operated for commercial purposes. (9). Simply maintaining liability insurance, like a commercial property, does not convert the church to being one. Additionally, the mere fact that a vacant building could have been used to generate income, and therefore be classified as a commercial property, is irrelevant. Id. In rejecting that argument, the Court noted that liability would then attach to any vacant or abandoned noncommercial (or residential) building.

In rejecting the plaintiff’s attempt to expand the Gray sidewalk liability exception, the Court made it clear: “[w]e reject any reading of Gray that imposes liability on owners of vacant residential or noncommercial properties that have not been put to any commercial use.” (2). Noncommercial property owners of vacant buildings, and the Board of Trustees of the Greater New Jersey Annual Conference of the United Methodist Church, can now breathe a little easier.

Thanks to Brent Bouma for his contribution to this post. Please write to Tony Pinto for more information.