GC’s Right of Supervision Over Subcontractor Work is Key to Determination (PA)

On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against  Fairman’s Roof & Trusses, Inc. (“Fairman’s”).

Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor.  These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn.  The collapse left Brian Baird trapped beneath four trusses and seriously injured him.  Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses.

Fairman’s also filed a complaint to join Fisher as an additional defendant.  In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium.  Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties.

The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s.  In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit.  The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41.  Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants.  The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit.  Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense.  In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do.

The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work.  Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him.  Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work.  Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher.

As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor.  Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.


Mason Found to Fabricate Scaffolding Accident (NY)

The Queens County Supreme Court recently tried a case in which plaintiff alleged he fell off a scaffolding, injuring himself in Klimowicz v. Powell Cove Associates LLC et al.

The plaintiff in Klimowicz was a mason and allegedly injured his right shoulder when, while building a brick wall and standing on an elevated scaffold at a construction site, fell through an opening in the scaffold

Plaintiff sued the premises’ owner and two related entities alleging state labor law violations, believing he fell because two boards had been removed from the scaffold’s platform, and because he was not provided the proper safety equipment as required under the statute.

As a result of the accident plaintiff suffered injuries including two arthroscopic surgeries on his shoulder, several courses of physical therapy, residual arthritic pain in shoulder with weakness and diminished range of motion.   Plaintiff ultimately demanded $1,000,000 for both past and future pain and suffering.

The matter went before a bifurcated jury trial, with the issue of liability being first heard by the jury.  The defense attorneys argued that plaintiff completely fabricated the incident to recover for injuries suffered at an independent incident unrelated to the scaffolding.  Defense Counsel noted that during a workers compensation hearing, plaintiff stated his injuries occurred while he was moving building materials.  Defense counsel also noted that in plaintiff’s medical records, plaintiff indicated the injuries occurred while plaintiff was pulling up a heavy plank.   In addition, plaintiff did not immediately report the incident after it was alleged to have happened but waited over a month.

The underlying workers’ compensation file, and persistence by defense counsel and their claim representative, helped to uncover the inconsistencies in plaintiff’s account. Ultimately, the jury rendered a defense verdict, finding that the defendants were not liable for plaintiff’s accident.   Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions.

$38.5 Million Punitive Damage Award Barred By Statute of Limitations (PA)

The Pennsylvania Superior Court recently addressed the $38.5 million punitive damages jury verdict in Wilson v. U.S. Security Associates (2015) – the highest award in Philadelphia in 2015.  In 2010, two factory workers were fatally shot and a third seriously injured at the Kraft-Nabisco factory in North Philly. The defendant security firm was found negligent by a jury when two security guards abandoned their post in fear when they saw an armed woman – a suspended Kraft worker who returned to the company looking for revenge.

The issue on appeal was the trial court’s decision to allow the plaintiffs—mid-trial—to reinstate a claim for punitive damages which was withdrawn by stipulation in exchange for a withdrawal of preliminary objections two years earlier. And by the time plaintiffs sought to introduce the punitive damages claim, the statute of limitations had expired.

The plaintiffs argued that the claim was merely an amendment to the ad damnum clause—the section of the complaint outlining damages—not a new claim; and as such there was no statute of limitations issue. Unpersuaded, the court held that to prove punitive damages, the plaintiffs must prove “reckless, outrageous, intentional and/or wanton” conduct, which is an extra element and not merely an amendment to an existing claim.

After finding punitive damages to be a claim instead of an amendment, the court moved to its statute of limitations analysis. Plaintiffs’ stipulation in exchange for the defense withdrawing their preliminary objections removed the claim from the complaint. Accordingly, the complaint must be read without the punitive damages claim. If the claim is not in the original complaint, the statute of limitations was never tolled by filing the complaint and the statute ran from 2010. Therefore, when the plaintiffs sought to reintroduce the claim at trial in 2015, the statute of limitations had already expired. To support this conclusion, the court looked to the settled law of voluntary nonsuits—voluntarily withdrawing an entire lawsuit. In voluntary nonsuits, the original complaint is treated as if it never existed; the statute of limitations is not tolled. The court reasoned there is “no legal basis on which the strategic withdrawal of one significant cause of action, punitive damages, should be treated differently than our settled controlling authority treats the withdrawal of an entire lawsuit.”

And thus Wilson v. U.S. Security Associates was stripped of its accolade of Philadelphia Court of Common Pleas’ largest 2015 award.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono if you would like more information.

Late Notice to Defendant Prompts Denial of Plaintiff’s Spoliation Motion (NY)

The Suffolk County Supreme Court recently denied plaintiff’s motion seeking sanctions and an adverse inference against a defendant due to spoliation of a videotape of the subject incident in Fischetti v. Savnio’s Hideaway.

The claim arose in November 2014, from a slip and fall at defendant’s restaurant.  Plaintiff, a patron, fell down the front steps while leaving the restaurant and fractured her shin and wrist.  Plaintiff bought suit against defendant, restaurant, alleging that insufficient lighting and signage caused plaintiff falling down the steps.

At the time of plaintiff’s fall, the restaurant had 9 surveillance cameras situated around the premises, one of which captured the accident scene.  Approximately 90 days post incident, plaintiff sent defendant a “notice letter” of the suit, and requested all information be forwarded to defendant’s insurance carrier.

During the course of discovery, plaintiff demanded disclosure of the video footage.  Defendant was unable to provide the surveillance footage as their surveillance system, per its programming, automatically recorded over the incident after two weeks.  Plaintiff then sought sanctions alleging that defendant negligently allowed for the destruction of the video.

The Court found that although the surveillance footage is highly relevant to plaintiff’s case, a defendant who destroys documents in good faith and pursuant to normal business practice should not be sanctioned unless the defendant is on notice that the evidence might be needed for future litigation.  Here, there was insufficient notice, as by the time plaintiff put defendant on notice, the video had already been destroyed. The Court went on to state that the “notice letter” sent by plaintiff, was insufficient as it neither cites the subject video nor requests the video to be preserved.

The Court’s ruling demonstrates the necessity of not only being specific in your demand letters, but of moving as quickly as possible at the inception of a cause of action,  to locate and preserve save any surveillance footage that may exist.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Fixing a Hole – First Department Reverses Defense Verdict in Sinkhole Case (NY)

In Gonzalez v City of New York, (2017 NY Slip Op 05180), the First Department recently held that a Bronx trial court’s erroneous evidentiary decisions improperly resulted in a directed verdict for the defense.

Plaintiff alleges he was injured when he fell into a sinkhole while walking across a public street in the Bronx, and that the area immediately surrounding the sinkhole was mushy and wet. Further, there was evidence showing that two weeks prior to his accident, a nearby water main burst. The City repaired the water main and then third-party defendant Halcyon Construction Corp. back-filled the hole. At trial, plaintiff claimed the repair work by the City and Halcyon resulted in the sinkhole.

At trial, the court precluded plaintiff from introducing photographs of the sinkhole into evidence. As those photographs were taken two weeks after the plaintiff’s alleged accident, the court found that they did not fairly and accurately depict the actual site. Plaintiff also tried to introduce the City’s road and highway specifications, arguing that because the specifications were incorporated into the contract between the City and Halcyon, they were relevant to defendants’ negligence. Again, the court precluded the plaintiff’s evidence, finding that the plaintiff failed to demonstrate that the specifications were anything other than “inadmissible internal rules, which would improperly create a standard of care higher than the one imposed by the common law.”

At the end of plaintiff’s case-in-chief, both the City and Halcyon moved for a directed verdict. The court found that there was insufficient evidence to find that either entity created the sinkhole, so it granted both motions. The plaintiff then moved to set aside the directed verdict, arguing that the court erred in precluding admissible evidence.  Not surprisingly, the trial court denied the plaintiff’s motion.

On appeal, the First Department held that the trial court erred in precluding plaintiff’s photographs of the accident site, even though they were taken two weeks after the accident. Of note, the First Department found that the plaintiff authenticated the photographs at his deposition, and other testimony at trial could have explained whether and to what extent the photographs depicted the accident site. Essentially, by precluding the photographs, the plaintiff was unable to show the jury the hole that he allegedly fell into. Further, the First Department held that the trial court erred in precluding the plaintiff from introducing the City’s road and highway specifications that were incorporated into its contract with Halcyon. As they applied both to the direct defendant (the City) and the third-party defendant (Halcyon), the First Department found that the specifications were admissible as potential evidence of the defendants’ negligence. As the trial court precluded the very evidence that plaintiff needed to argue the defendants’ negligence – the basis upon which the trial court granted the directed verdict – the First Department reversed the directed verdict.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Supplemental Bill of Particulars Permitted Nine Years Later (NY)

Last minute supplemental bills of particulars are common in personal injury cases and often result in motion practice seeking to strike the new and additional injuries alleged or permit discovery related to them. Pursuant to the CPLR §3043(b), a party may supplement the bill of particulars up to 30 days prior to trial only as to “continuing special damages and disabilities,” they may not allege new and additional injuries. The crux of this issue is whether the new injuries are related to the original injuries as to survive the statutory standard.

In Khosrova v. Hampton Bays, 2017 Slip Op 05075 (2d Dept. 2017), plaintiff was assaulted by a fellow student while waiting for the bus outside of the school. Plaintiff initially alleged personal injuries including depression, insomnia, agitation, poor concentration, loneliness and tenseness with distress, stress, and psychological difficulties. Nine years later plaintiff served a supplemental bill of particulars alleging additional injuries and damages of post-traumatic stress disorder and long-term psychotherapy.

Defendant’s made a motion to strike the supplemental bill of particulars claiming that it alleges new injuries and as such is actually an amended bill of particulars done without leave of court. The lower court granted the defendant’s motion. On appeal the Appellate Division overturned the lower court’s decision.

The Court found that the supplemental bill of particulars alleged damages that were “continuing consequences of injuries suffered and described in the original bill of particulars rather than new, unrelated injuries.” This decision contributes to the uphill battle defendants face when presented with a supplemental bill of particulars with related, yet new, allegations on the eve of trial.  This decision represents another example of a frustrating pro-plaintiff trend in New York Courts, and should be heeded by attorneys and insurers alike.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Damages Award for Meat Slicer Injury Modestly “Sliced” By Comparative Fault (PA)

A delivery person injured by the blade of a disassembled meat slicer recently received over $1.5 million from a Pennsylvania jury.  In Fuller v. Easton Healthcare Services Group, Plaintiff, a delivery person for a knife-sharpening and appliance service, was picking up a meat slicer that had been loaned to the Easton Health & Rehabilitation Center.  When Plaintiff arrived to retrieve the loaner slicer, an employee of Healthcare Services Group loaded the disassembled slicer onto a cart and wheeled the cart to Plaintiff’s delivery van.

As a result of the slicer’s disassembly, the blade guard to the slicer had been removed and placed on a lower shelf of the cart, underneath the slicer itself.  Subsequently, the employee lost his balance while attempting to load the slicer into Plaintiff’s delivery van, and in her effort to assist the employee, Plaintiff reached over top of the slicer and lacerated her right forearm, severing nine tendons, an artery, and two nerves.  She underwent emergency surgery to reattach the severed nerves and tendons, as well as re-establish blood flow to the severed artery.  Despite physical therapy, Plaintiff needed multiple surgeries to remove nerves from her ankle and implant them into her hand, an index finger amputation, and a fusion of her thumb.

Plaintiff sued Healthcare Services Group alleging that the removal of the blade guard from the slicer, the failure to reassemble the slicer, and the assumption that Plaintiff would notice that the slicer was not reassembled created an unsafe condition that could foreseeably cause harm.  Healthcare Services Group countered that, because it was Plaintiff’s job to retrieve the slicer, defendant was not responsible for placing the blade guard on the slicer, and that Plaintiff’s failure to notice that the blade guard was missing rendered her contributorily negligent.

Ultimately, the jury found that Plaintiff was 13% liable and Healthcare Services Group was 87% liable. Thus, Plaintiff’s damages, which included medical costs, lost earnings, pain and suffering, and a loss of consortium claim by her husband, were only reduced from $1,868,987.25 to $1,627,318.91.  As such, the jury obviously felt the defendant’s handling of the meat slicer was the issue, as opposed to plaintiff’s mishandling.  This case present the danger of a defense strategy of placing all the blame on a likely sympathetic plaintiff.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


Pro-defense Damages Verdict Set Aside as a “shock one’s sense of justice” (PA)

A Plaintiff who was denied pain and suffering damages in a 2015 jury verdict was recently granted a new trial on non-economic (pain and suffering) damages by the Pennsylvania Superior Court.   In Zielke v. Mullen,  the appellate court reversed a Delaware County Court of Common Pleas’ order denying Plaintiff’s post-trial motion for a new trial relating to her non-economic damages.

The plaintiff suffered a fracture in her left foot when she fell while descending stairs at the defendants’ home.  Plaintiff’s injury required surgery and the removal of the fractured bone, followed by the use of a recuperative boot for several months after the surgery.  The defendants had removed the handrail on the staircase in order to paint, and had neglected to reinstall the handrail before plaintiff and her husband attended a wedding reception at their home.  The absence of a handrail contributed to the fall, and a jury determined that the defendants’negligence was a cause of plaintiff’s injuries.

The jury awarded plaintiff approximately $13,000 in damages for past and future medical expenses, as well as lost earnings.  However, the jury awarded zero damages for non-economic loss (pain and suffering, embarrassment/humiliation, loss of life’s pleasures, and disfigurement).

Following the verdict, Plaintiff’s motion for additur, or in the alternative, a new trial solely on the issue of non-economic loss, and the trial court denied the motion.  In reversing the trial court’s denial, the Superior Court of Pennsylvania determined that Plaintiff’s injuries were serious enough that they were “of the type that natural and normally cause pain and suffering.”  The Superior Court determined that the jury verdict should be set aside because it “clearly appear[ed] from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff [and] is so contrary to the evidence as to ‘shock one’s sense of justice,’” citing Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001).

This was certainly a frustrating decision for defendants and their attorneys, who appear to have done “too good” of a job defending the damages claimed against them.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

2nd Department Cautions against Over-reliance on… 2nd Department?

In New York, a motion for summary judgment is subject to stringent rules pertaining to support for the motion, timing, and the evidentiary burden of the parties. Pursuant to CPLR §3212 a motion must be supported by evidence in admissible form, and by someone with personal knowledge. An attorney affirmation alone will not suffice.

In Zhubrak v. Petro, 2017 NY Slip Op 01593 (2d Dept. 2017), a jury trial had found that the defendant did not negligently operate his vehicle, and as such, was not liable.  The plaintiff moved to set aside the verdict, and that motion was granted.  After the case was sent back to the Supreme Court for a new trial on liability, plaintiff moved for summary judgment based on the Second Department’s decision for a new trial, attached to an attorney affirmation. Plaintiff failed to provide an affidavit from someone with personal knowledge or any other admissible evidence.

The Appellate Division found that the Supreme Court erred in granting plaintiff’s motion for summary judgment partially due to the fact that plaintiff failed to submit any evidence in admissible form. Ironically, the 2nd Department chastised the plaintiff, due to plaintiff’s over-reliance on the 2nd Department’s prior decision.   That decision does not, on its own, constitute admissible proof. Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.


Appellate Division Reverses Trial Court’s decision to Set Aside Verdict in Asbestos Litigation (NY)

Asbestos litigation is a complex and, if you were friends with former Speaker of the New York State assembly and convicted felon Sheldon Silver, lucrative field.  Chances are that you have seen (in New York, at least) commercials for Weitz & Luxenberg “victims of mesothelioma, the lethal cancer linked to asbestos exposure, claiming the billions set aside” for liability.  Unfortunately, construction and demolition workers are exposed to an increased risk of asbestos exposure.  Plaintiff’s firms tout the high settlement or verdict numbers, often in the aforementioned commercials. Who bears liability for exposure is often a particularly fact sensitive matter.

In a recent decision the Matter of New York Asbestos Litigation – Phyllis Brown, as Administratrix of the Estate of Harry E. Brown v. Bell & Gossett Company and Consolidated Edison of New York, the Appellate Division, First Department, reversed the trial court’s order granting defendant Consolidated Edison’s post-trial motion to set aside the verdict against it and dismiss the complaint, reinstated the verdict and directed a new trial on damages for the loss of consortium.  The Appellate Division found that the trial court improperly set aside the plaintiff’s verdict on the Labor Law Section 200 claim against Con Edison.  The evidence at trial demonstrated that Con Edison had the “authority to control the activity bringing about the injury.”

In 1964-65 the decedent was employed as an asbestos insulation installer and his employer was subcontracted by the three major contractors at defendant Con Edison’s power plaint in Ravenswood, NY.  The contracts between Con Edison or its general contractor and the three contractors required that each contractor provide a foreman in charge of its specific work and that Con Ed would inspect all contractors’ work periodically to ensure compliance with contract specification as well as to enforce general safety at the site.  The contracts further provided that whenever work generated harmful dust, the contract was obligation to install and maintain equipment that protected the plant and workers against such dust.  Decedent was exposed to asbestos containing dust while working at the Ravenwood site, where ventilation was inadequate and the workers did not wear masks.  He further testified that he took his work instruction from his employer’s foreman, and never spoke with or received any direction from anyone from Con Ed while at the site.  Con Ed’s engineers and construction managers testified that they monitored the work to ensure that the contractors performed their work productively, safely and according to a preset schedule.   The employer’s foreman tested that the general contractor would coordinate the trades through a schedule and that job specification would have been approved by Con Ed.

The Appellate Division held that Con Edison had the ability to prevent the hazed ultimately causing the plaintiff’s injury, namely, the application of asbestos-containing material.  Con Edison’s specifications affirmatively requested the use of hazardous asbestos contain insulation materials and Con Edison monitored work for compliance with those specifications.   The presence of Con Ed personnel at the work site to monitor the progress of the work under a preset schedule, and to inspect the project to confirm the work was performed in accordance with the contract specifications, as well as Con Ed’s authority to enforce general safety standards was indicative of a general right of inspection, not supervision control.

The trial court’s overturning the jury verdict is unusual and drastic.  Based on that, perhaps it is not surprising that, in another unusual and drastic act, the Appellate Division ultimately reversed the trial court and reinstated the verdict.   To be sure, post-verdicts settlements arise because of situations just like this one.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.