Substance of Pro Se Petition Rejected by Appellate Court (PA)

On November 02, 2018, the Superior Court of Pennsylvania affirmed a judgment entered in the Chester County Court of Common Pleas denying a petition to vacate an arbitration award in Jenn-Ching Luo v. Lowes Home Centers LLC  The case arises out of a minor construction project gone wrong which resulted in property damage.  Jenn-Ching Luo (“Luo”) contracted with Lowe’s Home Centers, LLC (“Lowe’s”) to install a new residential roof, skylights and gutters.  Lowe’s hired Kolb Roofing Company to perform the installation, however, Luo claimed the installation did not protect against a brief rainstorm which caused damage.  Attempting to rectify the problem, Lowe’s hired Charles S. Ernst to evaluate the property damage, but Luo didn’t agree with his assessment.

Luo then proceeded to file suit in the Chester County Court of Common Pleas.  However, the original installation contract contained an arbitration provision and thus the case proceeded to arbitration.  The arbitrator found in favor of Luo and against Lowe’s and Walters in the amount of $2,034.07.  Luo was unsatisfied with this award and filed a petition pro se to vacate the award.  In doing so, Luo raised an astonishing 23 issues in her appellate brief.

In dismissing the appeal, the court cited a litany of errors and violations of the Pennsylvania Rules of Appellate Procedure.  Luo had failed to cite to any relevant legal authority, failed to divide her brief “into as many parts as there are questions to be argued,” failed to cite to the record and made a number of other errors not referenced in the opinion.  This case, while extreme, highlights the importance understanding jurisdiction-specific procedural rules and strictly adhering to them.  Failing to do so can have grave consequences including the potential for the dismissal of your case.

As anyone who does appellate work, civil or criminal, will tell you, a skilled adversary presents a challenge.  But a pro se adversary presents a more time-consuming challenge, because the attorney has to address all arguments, even nonsensical ones.  Here, Lowe’s had to oppose a 23 point appeal, on a $2,000 arbitration award.   “Judicial economy” usually takes a backseat when pro se litigants are involved.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.

Spotlight on Broadway Theater’s Duty to Pedestrians (NY)

A theatergoer forced into the street due to a crowded lineup loses her bid to be compensated for her injuries that occurred not on that crowded sidewalk, rather in the street.

The First Department has upheld a Manhattan Supreme Court Justice’s grant of summary judgment to defendant landowner in Quigley v Nederlander Org., Inc, where plaintiff injured in front of a Broadway theatre. Plaintiff testified that upon arriving at the theatre, she and her group were directed to join the line to enter the building. As plaintiff followed her group to the back of the line, she stepped onto the street and her heel was caught in a crack between two metal plates causing her to fall. Plaintiff alleged that the theater was negligent because she forced to maneuver her way through a crowded sidewalk onto the street.

Defendant theatre owner, Nederlander Organizations, Inc. d/b/a The Lunt-Fontane Theatre, established entitlement to judgment as a matter of law. Defendant was not on notice of any dangerous crowding condition or of a hazardous condition on the street close to the area where patrons stood in line.

Notably, plaintiff did not identify that an overcrowding condition restricted her movement or that defendant directed her to walk on the street. Plaintiff acknowledged that the sidewalk traffic was made up of pedestrians and patrons and that the crowd was tame. The court noted that, even if the entire width of the sidewalk had been overtaken by the crowd, defendant owner still could not be liable for plaintiff’s injuries absent prior notice of a dangerous condition. Further, it was unforeseeable that directing plaintiff to join the line would have placed her in harm’s way.

Thus, since plaintiff was unable to raise a triable issue of fact as to defendant’s negligence, the First Department upheld summary judgment, based on evidence showing that plaintiff’s own culpable conduct in attempting to strategically maneuver her way through the crowd and ultimately caused her injuries.

We see an increasing number of cases involving pedestrians who claim injuries due to sidewalk configurations. This case clarifies the landowner’s duty for future litigation.

Thanks to Theresa Dinh for her contribution to this post.

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.

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.

Plaintiff Allowed To Take Swing against City For Fall at Citi Field (NY)

In Henn v. City of New York, Sterling Mets, et. al, plaintiff allegedly sustained injuries as a result of tripping and falling upon the sidewalk abutting Citi Field on July 6, 2014. Plaintiff alleges that defendants were responsible for the maintenance of the sidewalk and created the defective condition of the sidewalk. Defendants moved to dismiss under 3211(a)(7) – failure to state a cause of action. The lower Court denied defendants’ motion to dismiss and the defendants appealed.

The Appellate Division Second Department concurred with the lower court and ruled that defendants did not reach their burden to dismiss. The sole criterion on a 3211(a)(7) motion is whether the factual allegations articulated in the four corners of the complaint itself manifest any cognizable cause of action. “When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

The Second Department held that the documentary evidence submitted by the ballpark defendants in support of their motion failed to conclusively establish a defense as a matter of law. Further, the ballpark defendants failed to establish conclusively that the plaintiff had no cause of action. That the complaint alleged the ballpark defendants owned, operated, managed, maintained, or controlled the subject sidewalk upon which the plaintiff was injured was sufficient to go forward on a cause of action and the documentary evidence submitted by the ballpark defendants—a “Stadium Lease Agreement” and a “First Amendment to Stadium Lease Agreement” – was insufficient to show they did not own, operate, manage or control the subject sidewalk and therefore, was insufficient to provide a basis for dismissal under that subsection.

The case was allowed to move forward to discovery and depositions of all parties.

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

Plaintiff Gets Second Bite at Defendant’s Dog (NY)

In Lipinsky v Yarusso (2018 NY Slip Op 05925), two co-workers and friends ended up as adversaries when the defendant’s dog bit the plaintiff’s left thumb.

After the dog bit the plaintiff, he filed a lawsuit in Suffolk County Supreme Court.  The defendant then filed a motion for summary judgment, asking the Court to dismiss the lawsuit because his dog did not demonstrate vicious propensities, and even if the dog did, the plaintiff was not aware of such propensities.  The plaintiff’s opposition to the motion included an affidavit from the plaintiff’s neighbor stating that on two occasions prior to the incident, the defendant warned the neighbor to be careful near the dog because he bites.  Nonetheless, the Court granted the motion dismissing the lawsuit.

The plaintiff appealed the dismissal and the Appellate Division reversed the trial court’s findings.  The decision addressed the law and the facts, and reinstated the action because there were questions of fact regarding the defendant’s dog’s vicious propensities.

The appellate decision discussed the legal standard pertaining to liability for dog bites, holding that “to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” and vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.   The Court also held that “evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.”

Applying this law to the facts as stated in the affidavit from the plaintiff’s neighbor, the Appellate Division held that the Supreme Court erred in dismissing the lawsuit.  Specifically, the decision held that the affidavit from the plaintiff’s neighbor was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities.

Thanks to George Parpas for his contribution to this article.

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

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.

Delinquent Tenant Receives Comeuppance from Court of Appeals (NY)

In the case Multani v. Knight, plaintiff Multani, who operated a medical clinic in a space she leased from defendant Evelyn Knight, brought claims against Knight for conversion, breach of the covenant of quiet enjoyment, nuisance, negligent maintenance of property and other related claims. The claims arose due to a sewer backup that caused damage to the tenant’s clinic.  (We suspect the “negligence” cause of action may have triggered insurance coverage, but the Court does not focus on the insurance coverage aspects of the case.)

The primary question for the appeals court was: Can a landlord be held liable to a commercial tenant for damage to tenant’s property resulting from an alleged sewer backup when the tenant (who had a month-to-month tenancy in the premises after her lease expired) had stopped paying rent, had been served (but failed to comply) with a three-day notice to pay rent or quit, and had been named in an unlawful detainer action filed before the alleged sewer backup occurred.

The Court of Appeals held that the tenant (as described in the above paragraph) was a tenant at sufferance who had no lawful right to possession of the premises. The court held that the landlord was not liable for damage to the tenant’s property left on the premises when that damage was not caused by the landlord’s intentional act or negligence. The court affirmed the judgment of the trial court.  Thanks to Jonathan Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

We Didn’t Start the Fire: First Department Uphold Denial of Building Owner’s MSJ (NY)

Living in New York City offers unmatched opportunities and experiences.  There are, of course, trade-offs – high rents, small living spaces, and old infrastructures.  Residents do the calculus and decide that living in New York justifies these downsides.  Unfortunately, living in an older building can present additional considerations, including maintenance concerns and structural issues which, can lead to lawsuits.

In Daly v. 9 East 36th LLC, the Appellate Division, First Department affirmed the lower court’s denial of defendant’s summary judgment motion.  The apartment building was built in the 1930’s and there was no evidence that any interior electrical upgrade had ever been performed.  On June 19, 2013, plaintiff, a tenant in the building, sustained personal injuries from a fire in his rent-stabilized studio apartment.  The Fire Incident Report of the fire department’s Bureau of Fire Investigation found that the fire originated in an area of electrical wiring and noted multiple extension cords plugged in to one outlet with a power strip.

Before the fire plaintiff had on multiple occasions requested to the building superintendent that more outlets be installed and showed the existing outlets were in disrepair.  Plaintiff utilized extension cords for many of his appliances as a result.  Plaintiff purportedly also complained that the fuses in the apartment would blow and shut down the electric in his apartment and occasionally the building. The super testified that he had conversations with the plaintiff regarding updating the electrical system and that the defendant had repeatedly refused to make repairs due to costs.

The court denied the defendant’s motion for summary judgment finding that there was a triable issue of fact as to whether defendant had actual or constructive notice that a dangerous condition existed in plaintiff’s apartment that it failed to remedy, specifically that plaintiff’s expert opined that the building’s 1930’s electrical system constituted a dangerous condition and whether there was notice of the same.  The majority of found that the building owner had a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others and that it was an issue of fact whether defendant’s decision not to upgrade the electricity kept the apartment reasonably safe.  The majority was unwilling to conclude as a matter of law that plaintiff’s lifestyle and electrical consumption were above and beyond the reasonable needs of any modern tenant.

The dissent argued that the plaintiff should have adapted his electrical usage to the building’s limitations rather than seek any kind of upgrade.  Further, the dissent noted that the absence of any evidence that the building’s wiring did not meet code standards or was otherwise defective, no basis exists for imposing liability for declining to upgrade the building’s wiring to suit plaintiff’s electrical usage.

The dissent’s arguments appear reasonable and account for a common sense approach.  However, the majority, in allowing the matter to proceed, put considerable weight on the plaintiff’s expert testimony in spite of the fire marshal’s finding. Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

To Repair or Replace: Damages for Replacement Costs Upheld (PA)

The Pennsylvania Superior Court recently affirmed a damages award that came under appeal after defendants argued that it was not supported by competent evidence.  In 700 EBA v. Weaver’s Glass & Building, No. 1868 MDA 2016, defendants Weaver’s Glass & Building Specialties, Inc. appealed the amount of the damages awarded by the trial court in the underlying non-jury trial, which involved a dispute between Weaver and plaintiffs 700 EBA, LLC, after 700 EBA hired Weaver to furnish and install several windows in one of 700 EBA’s buildings.  After installation, 700 EBA discovered that a majority of windows contained “major window failure” and permitted water to penetrate into the building during periods of heavy rain.  Subsequently, 700 EBA sued Weaver for breach of contract for improperly installing the windows.

Following a bench trial, the trial court ruled in favor of 700 EBA and awarded $67,420.25 in damages, which included the cost of replacing the windows.  Weaver appealed the damages award on the grounds that replacement of the windows was not necessary, and that the problem could be resolved by simply repairing the existing windows, which would cost less than replacing the existing windows with brand new ones.  As evidence in support of their appeal, Weaver cited 700 EBA’s expert testimony that replacement of the windows was not necessary.

On appeal, the court articulated the standard of review applied to challenges of a non-jury verdict – whether the findings of fact of the trial court are supported by competent evidence and whether the trial court committed error in application of the law.  The trial judge’s findings of fact must be given the same weight as if they were found by a jury, however the appellate court has plenary review power to address questions of law.  As to the specific issue of damages, the appellate court stated that the evidence must be considered in the light most favorable to the trial verdict winner, and that appellate courts should defer to the trial court on decisions regarding damages.

In reviewing the award, the appellate court cited an expert report from the window manufacturer that stated that the existing window frames should be removed, as well as expert testimony from a building remediation company and a building consultant who testified that the windows should be replaced.  Additionally, the court cited expert testimony that opined that the plan to replace rather than repair the windows was reasonable, as was the quoted cost estimate.  Thus, the Superior Court ultimately ruled that the trial court did not err in its damages award based on the replacement costs of the windows, and affirmed the award.  This case offers aclear articulation of the standard of review applied by an appellate court when reviewing a damages award,  and illustrates the heightened burden that an appellant must carry.  THanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.