Category Archives: Premises Liability

Vacant Two-Family Home not “Commercial” for Purposes of NJ Sidewalk Liability

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In Vega v. Muthapandi, plaintiff alleged to have fallen due to snow on a sidewalk abutting a two-family house.  The defendant had recently purchased that two-family house which was vacant at the time of purchase.  The defendant was not residing in the house at the time of the fall, but neither was he renting out any portion of it.  The roof had also collapsed before plaintiff’s accident rendering the house uninhabitable.

The defendant moved for summary judgment, arguing that the house was not commercial.  In New Jersey, only “commercial” property owners are liable for failing to maintain an adjacent sidewalk.  The trial court agreed with the defendant and dismissed the complaint.

On appeal, plaintiff argued the property was commercial because the defendant did not actually intend to move into the property or, at the very least, there was a question of fact over what his intentions were.  Specifically, plaintiff argued that if defendant intended to rent out both units, then the house was commercial.

According to the Appellate Division, defendant was not liable because the property was vacant and uninhabitable.  Therefore, the reasons behind holding commercial property owners liable for sidewalk injuries were not present.  Those reasons include the ability to carry liability insurance and the implied invitation of the public to the commercial enterprise which requires the commercial owner to provide safe ingress and egress.

The problem for defendant in this case was that he did not reside in the house at the time of the accident.  The case law relative to residential v. commercial generally requires the owner to reside in the property to be deemed residential.  The Appellate Division crafted a simple explanation for finding that defendant had no liability.  Simply put, the property was vacant and no business was being conducted there.  Accordingly, it was not “commercial.”

Thanks to Michael Noblett for his contribution to this post.

 

 

 

 

Landlord Responsible for Burn from Uncovered Radiator (NJ)

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In J.H. v. R&M Tagliareni, LLC, the New Jersey Appellate Division analyzed whether a landlord owned a duty to protect a minor from a hot and uncovered radiator where it was part of the building’s entire heating system.

Plaintiff is a minor who sustained third-degree burns on his head, right cheek, and left arm while sleeping next to an uncovered radiator in defendant’s apartment building. The radiator was controlled by an on and off shut-off valve at its base inside the apartment unit. The heat flowing into the radiator could only be manually turned on or off at the shut-off valve and the unit did not possess a thermostat to regulate the amount of heat emitting from radiator. An investigation of the radiator revealed that it became unbearable to touch within two minutes of turning the shut-off valve to the on position. Plaintiff’s mother, on behalf of her minor son, subsequently filed suit against the landlord contending that the landlord was in control of the apartment’s heating system and failed to protect her son.

At the conclusion of discovery, the landlord moved for summary judgment arguing that it did not have notice of the allegedly dangerous condition. The trial court granted defendant’s motion holding that the landlord had no constructive or actual notice of the uncovered radiator and therefore violated no duty to plaintiff. In granting defendant’s motion, the trial court found that the tenants had exclusive control over the radiator’s shut-off valve. The trial court also reasoned that the landlord had not received any complaints of excessively hot radiators, was not aware that a young child was living in plaintiff’s unit, and did not violate any applicable codes.

On appeal, the Appellate Division reversed the trial court’s decision and held that the landlord owed a duty of care under a regulation requiring a building’s heating systems (i.e. the radiator) to be covered. The Appellate Division found that the shut-off valve was not sufficient to give the tenants control over the unit’s heating system because there was no control in actual temperature. The Appellate Division found the shut-off valve especially impractical when the tenants were sleeping. The Appellate Division also found that a simple radiator cover would have been enough to protect plaintiff from the burns that he sustained and that the landlord had notice of the dangerous condition because it delivered the unit to the tenants for rent.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono with any questions.

Court of Appeals Redefines Summary Judgment Landscape (NY)

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Earlier this week, the Court of Appeals, New York’s highest Court, issued a decision which is certain to change the landscape of personal injury litigation in New York.

In Rodriguez v. City of NY, decided on April 3, 2018, four of the seven Justices agreed that a plaintiff can obtain summary judgment against a negligent defendant even if there is evidence that the plaintiff bears comparative fault. (Yes, you read that correctly.)

In Rodriguez, plaintiff was at work, standing between a parked car and a tire rack, when a City of NY vehicle rolled into the parked car, causing plaintiff to get “sandwiched,” and sustain back and neck injuries.   Both parties moved for summary judgment on the issue of liability. Both motions were denied by the trial Court. The trial court denied plaintiff’s motion, in part, because issues of fact existed as plaintiff’s comparative negligence. The plaintiff appealed and the Appellate Division upheld the trial Court’s decision. Thereafter, plaintiff was granted leave to appeal to the Court of Appeals.

While the Court did not address the facts of this case specifically[1], they did decide that, contrary to precedent,  a plaintiff can obtain summary judgment against a defendant even if there are questions as to plaintiff’s comparative fault. It was found that it was against the intent of New York’s comparative fault statutes to permit a total bar of recovery (or here, summary judgment relief), due to comparative fault. The Court found that where a plaintiff has been awarded summary judgment on liability against a defendant, the liability trial will only ask a jury to determine how much of the total liability is attributed to plaintiff, after they are told that the defendant has already been found liable.

The Court based this decision on the supposed legislative intent of the comparative fault statutes in New York and found that it is only to be considered when calculating the percentage of damages attributable to both parties, not in assessing whether the defendant was in fact, negligent. Furthermore, the Court found that it is not a plaintiff’s burden to prove the absence of comparative fault to obtain summary judgment, but instead to prove only that the defendant was negligent or somehow responsible for the damages plaintiff sustained.

The Court goes so far as to say that “comparative fault is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action.” Because it is not a defense, issues of fact related to it are insufficient to raise triable issues of fact precluding summary judgment and as such, should not be considered when deciding a motion made under CPLR 3212.

As a result of this decision, every case, even where a plaintiff may be 99% liable, is a potential summary judgment win for plaintiffs, including slip and fall on ice cases, sidewalk defect cases, and likely pedestrian knockdown cases. This fact alone will embolden the plaintiff’s bar.

Now, if we may editorialize, this decision flies in the face of both precedent and of common sense.  Summary judgment is designed to confirm that there are no triable issues of fact for jury consideration.  Now defendants will be forced to litigate a plaintiff’s comparative fault at trial, with the jury already likely knowing the defendant has been found liable.  This scenario strikes us as prejudicial to defendants.  We also note that, while currently unclear, it is possible that interest may be running (at 9% per annum) from the date SJ is entered up to trial.  We’ll keep tabs on this issue.

If there is a silver lining, the Court of Appeals has redefined what summary judgment means.  Now, plaintiffs who are awarded summary judgment on liability have not truly been awarded summary judgment, since they must still litigate liability at trial, with their comparative fault at issue.  The silver lining is limited, however, and is certainly a huge win for the plaintiff’s bar.  The ramifications of Rodriguez will be felt for years to come, and the number of cases where plaintiffs move for SJ will increase immediately.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

[1] The Court remanded the ultimate decision on plaintiff’s motion for summary judgment back down to the Appellate Division and focused this decision only on whether a plaintiff can obtain partial summary judgment even where there may be comparative fault.

Cleaning Service Cannot Sue for Failure to Clean (NY)

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In Rojas v 1000 42nd St., LLC, the Appellate Division, Second Department unanimously reversed a lower court ruling that denied defendant’s motion for summary judgment.  In Rojas, plaintiff allegedly slipped and fell on a piece of cardboard in the basement of a residential building in Brooklyn.  She testified that at the time of the accident, she was employed to clean the subject building, including the weekly removal of garbage and recycling from the basement.  She was engaged in the performance of this task at the time of the accident and testified “there was a lot of garbage” in the basement, including “cardboard all around.”

The Court acknowledged that while a landowner has a duty to provide workers with a safe place to work, one “need not guard against hazards inherent in the worker’s work.”  The Court found defendants met their burden by showing the risk of slipping on cardboard was inherent in plaintiff’s work, relying on Wagner v Wody and Imtanios v Sachs.

This is the first time the Court has ruled unanimously as both Wagner and Imtanios had dissenting opinions.  In Wagner a sanitation worker was injured when a piece of glass in the garbage bag he was lifting pierced his leg.  The Court found that a worker “may not hold others responsible if he elects to perform his job so incautiously as to injure himself.”

In Imtanios, a porter was injured when he slipped on discarded computer parts.  The Court found that defendants owed no duty to plaintiff to keep the floor clean as that would lead to the absurd conclusion that one was to hire a cleaning service to clean the premises for the cleaning service.  It is refreshing to see courts using common sense in slip and fall cases brought by people hired to remedy the very condition that is the cause of their injury.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Stair Collapse Prompts SJ Against Owner in Premises Action (NY))

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In Conklin v 500 512 Seventh Ave, the Appellate Division, First Department unanimously granted plaintiff’s motion for summary judgment on the issue of liability.

The plaintiff, a handyman employed by the defendant’s managing agent, was injured when he fell about 20 feet to a cement floor after the metal landing of a metal staircase in the sub-basement of defendant’s building collapsed under him.  The court found that plaintiff established a prima facie case that defendant had constructive notice of the defective condition of the stairs. Plaintiff submitted photographs of the stairs covered in rust as well as evidence that the defendant had not inspected the staircase in the 27 years preceding the accident.

The court made a point to note that stairs “do not ordinarily collapse absent negligence, and plaintiff did not contribute to the happening of the accident.”  Because this accident could not have been caused by the plaintiff’s actions and in combination with the visible evidence of the defective condition over the course of several years, the court was persuaded to unanimously find for the plaintiff on the issue of liability. The Court does not opine on whether the “handyman” plaintiff was asked to repair the subject staircase, but we suspect not, since the Court likely would have address as much if defendant opposed on those grounds.

This case serves as a cautionary regarding obvious defects especially in the context of accidents where there is no reasonable argument of comparative fault.  Thanks to Alicia Massidas for her contribution to this post.  Please email Brian Gibbons with any questions.

No Liability for Failure to Prepare for Snowstorm (PA)

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In Pennsylvania, property owners’ duty to address ice and snow is delineated in the “hills and ridges” doctrine. The doctrine shields landowners from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. Typically, the doctrine provides a safe harbor after recent snow or ice accumulation. The doctrine’s principle is to preclude liability when general slippery conditions prevail in the community due to the weather as ice and snow is a reality of the climate.

The limits of the hills and ridges doctrine were explored in Collins v. Philadelphia Suburban Development Corporation (“PSDC”). Collins slipped while leaving work and fell on an ice/snow covered sidewalk owned by PSDC and leased to Collins’ employer. That day, a blizzard started at 7 am and continued until about 1 pm. Collins admitted that he walked outside during the blizzard. PSDC filed a motion for summary judgment based on the hills and ridges doctrine, which the trial court granted.

On appeal, Collins tried to convince the Superior Court that PSDC was liable because it did not take any steps before the forecasted storm to mitigate the icy effects. An exception to the hills and ridges doctrine is where the landowner’s neglect caused the icy/snowy condition. Collins argued that PSDC knew the blizzard was coming and failed to pretreat the sidewalk. Therefore, its neglect caused the icy/snowy condition.

The court was unconvinced and held that PSDC’s failure to pretreat the sidewalk did not trigger the exception to the hills and ridges doctrine. The court found that PSDC had no affirmative duty to ensure the removal after the storm, and if the caselaw finds no duty during or after the event, then it makes no sense to impose a duty before the event.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions.

Clean up on Aisle 9-The Retained Control Exception to Independent Contractor Rule

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In Pennsylvania, a property owner is usually not liable for the injuries of an independent contractor’s employee, but there is an important exception of which property owners need to be aware.

In Santiago v. Wegmans, Wegmans retained GCA, an independent contractor that sent Santiago to perform janitorial services at a Wegmans retail location.  The Plaintiff slipped and fell on ice while sweeping dock plates near the frozen foods warehouse.  Plaintiff sued Wegmans alleging it negligently maintained its property.  Wegman’s moved for summary judgment arguing it was not liable for the injuries sustained by an independent contractor’s employee.  Plaintiff opposed by invoking the “retained control” exception, where a property owner can be liable for the injuries an independent contractor if the property owner retains “control over the manner in which the work is done.”

The Court found that Wegman’s exerted significant control over GCA’s janitorial services, as evidenced by the service agreement that specified how each floor type was to be cleaned, and even specified the cleaning products to be used.  Accordingly, the Court denied the motion.

The retained control exception is important because it prevents property owners from controlling the services of an independent contractor, as they would with an employee, while also escaping the negligence liability that would usually accompany an employment relationship.  The Court looked to the Nertavich v. PPL Elec. Utilities decision in which the Court noted that engaging an independent contractor “implies that the contractor is independent in the manner of doing the work contracted for,” and “presumably knows more about doing it than the party who by contract authorized him to do it.”  There was clear evidence in the Wegmans case that the Defendant was trying to control the specific manner in which the janitorial work was completed.  Property owners must ensure that their independent contractors are being treated as “independent.” If not, the property owner may actually be responsible for any injuries resulting from “clean up on aisle 9.”

Thanks to Malik Pickett for his contribution to this post.

 

 

 

Blizzard Conditions Block Lawsuit (PA)

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On January 31, 2018, the Superior Court of Pennsylvania affirmed an entry of summary judgement in favor of Pennsylvania Suburban Development Corporation in Collins v. PSDC  The case stems from a slip-and-fall which occurred on an ice/snow covered sidewalk owned by PSDC and leased to the Pennsylvania Board of Probation and Parole (“PBPP”).  David Collins, an employee of PBPP, was walking on the ice/snow covered sidewalk when he slipped and fell.  As a result of the fall, Collins filed a complaint against PSDC and Ross’s Home Improvement (“Ross’s”) seeking damages for his injuries.  Collins’ wife also sought damages for loss of consortium.  Thereafter, Collins filed an amended complaint naming as additional defendants Earl Ross, Ecosystem Gardening, Goodman & Ross Trucking, Excavation Construction, LLC, and EVR Landscaping.

On August 2, 2016, PSDC moved for summary judgement, arguing no duty to remove ice/snow from its sidewalks during a blizzard, and therefore, no breach of any duty owed to Collins.  PSDC argued that Collins admitted that it had been a “blizzard occurring” as the snow had been falling since the early morning on the day of the accident.  PSDC presented further testimony as well as video evidence of the snow accumulation on the date of the accident.  The trial court granted PSDC motion for summary judgement based on the hills and ridges doctrine.  The remainder of the case proceeded to arbitration and Collins was awarded the maximum of $50,000 against all remaining defendants.  Collins’ wife was also awarded $50,000 for her loss of consortium claim.

Collins appealed the trial court’s grant of summary judgement in favor of PSDC alleging that there was a genuine issue of material fact as to whether they met an exception to the hills and ridges doctrine.  Collins argument is threefold: (1) there is no evidence that PSDC made any attempts to have the premises pretreated with a deicing product; (2) Collins’ expert testified that the standards for its snow removal agreement with Ross’s should have been in writing; and (3) a defective condition (a ramp) was hidden by the snow mounds and contributed to Collins’ fall.

The court quickly disposed of these arguments by Collins as they agreed with the trial court that the hills and ridges doctrine applied.  The court stated that there was no factual dispute that Collins slipped during an active blizzard and that, under prevailing law, a landowner has obligation to correct a condition under the hills and ridges doctrine until a reasonable time after a winter storm has ended.  Therefore, PSDC had no obligation to begin the process of snow removal at the time of Collins’ fall because the “blizzard” was still ongoing.  The court also briefly stated that a property owner is not required to pretreat a sidewalk under the hills and ridges doctrine and PSDC was not obligated to put its contract with Ross’s in writing.  Thus, the court affirmed the trial court ruling and concluded that PSDC was entitled to summary judgement.  Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

Defendant Inadvertently Creates Question of Fact by Producing Conflicting Witnesses (NY)

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In New York City, where a plaintiff is injured due to a slip and fall within a residential apartment building, a defendant must show through admissible evidence the last time the area was cleaned and inspected prior to the accident. However, it appears that in some instances, this alone is not enough.

In Hamilton v. Naica Housing Development, decided on February 6, 2018, the First Dept. upheld the lower court’s denial of the property owners’ motion for summary judgment. The property owner had produced two witnesses for a deposition. One witness, the building superintendent, testified that he personally cleaned and inspected the area prior to the accident and did not see any wet substances. The same witness stated that in the event of a wet condition, wet floor signs would be placed immediately, however that had not occurred in this case.

The second witness, a housekeeper for the building, who was present at the time of the accident, testified that he saw a wet floor sign in the area of plaintiff’s fall, but that he did not know who placed it there and did not do so himself. The defendant attempted to overcome the difference in testimony by arguing that even if the defendant owner did have notice of a condition between when it was cleaned and the accident, they adequately warned plaintiff by placing a wet floor sign.

It is evident in making the motion that the defendant thought both evidence of the last inspection and placement of a warning sign would be sufficient to show that they acted reasonably.  However, the Court found that this different testimony from the defendant’s witnesses created issues of fact, namely as to whether the defendant did have notice of a condition and failed to remedy it. Further, the Court found questions of fact as to whether placing a wet floor sign is sufficient to warn or protect from a known dangerous condition, where that condition had not been cleaned up.

This decision emphasizes the importance of having witnesses prepared, and their testimony in sync with each other, to eliminate holes in the defense case.  Now, not only does this plaintiff have a pathway to trial, but he has an added advantage of facing conflicting defense witnesses.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Affidavit of Restaurant Manager Insufficient to Thwart Constructive Notice Claim (NY)

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In Lewis v Carrols LLC, the Fourth Department recently discussed the practical obstacles faced by a defendant in showing that it neither created, nor had notice of, a defective condition.

The claim arose from injuries suffered by plaintiff when she allegedly slipped on water in the vestibule of a restaurant owned by defendant. In plaintiff’s complaint and bill of particulars, she alleged that defendants either created the dangerous condition or had actual or constructive notice of it. The Supreme Court denied defendant’s motion to dismiss to dismiss the complaint in its entirety, and defendant appealed.

On appeal, the Fourth Department noted that defendant submitted evidence that it was raining on the date of loss, and that any water accumulation in the vestibule was a “result of the weather conditions as opposed to an employee spoiling anything in the floor.” Accordingly, the Fourth Department held that defendant did not create the condition as a matter of law, and the Supreme Court erred in denying that part of defendant’s motion.  The defendant also provided an affidavit from the restaurant manager establishing that she did not personally observe any dangerous condition when she inspected the vestibule approximately thirty minutes before plaintiff’s accident. However, defendants failed to submit evidence that 1) other employees did not observe water on the floor or 2) that there were no complaints about the allegedly wet floor prior to plaintiff’s accident. Accordingly, the Fourth Department held that defendant failed to establish that lacked actual notice of the allegedly dangerous condition, as a matter of law.

In its discussion of constructive notice, the Court noted that defendant “cannot satisfy its burden merely by pointing out gaps in the plaintiff’s case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident.” In addition to submitting the restaurant manager’s testimony that she inspected the area approximately thirty minutes prior to plaintiff’s accident, defendant also submitted the testimony of plaintiff’s husband, another restaurant employee. In contrast to the manager’s testimony, plaintiff’s husband testified that the manager was not even present in the restaurant at the time of the accident. He also testified that the area had not been inspected for at least five hours prior to the plaintiff’s accident. While defendant tried to argue that the husband’s contrary testimony was not credible as a matter of law, the Fourth Department instead felt that this testimony created as issue of fact as to when the vestibule had last been inspected.

Overall, this decision is interesting because, while defendant proved that it did not create the hazardous condition as a matter of law, the defendant’s own motion showed the existence of issues of fact regarding notice. The restaurant manager’s affidavit indicated that she inspected the area just half an hour prior to the accident. However, defendants also submitted a contradictory affidavit from plaintiff’s husband. Accordingly the Fourth Department held that that defendants failed to prove it lacked actual and constructive notice of the dangerous condition as a matter of law.

This decision highlights the uphill battle defendants face in New York.  This defendant provided an affidavit a restaurant manager, who inspected the subject area 30 minutes before the accident — and this was not enough to avoid summary judgment.  Thanks for Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.