Vicarious Liability Raised in Hospital Fall (PA)

In Hodge v. Aramark, LLC, the plaintiff, an operating room nurse at Holy Redeemer Hospital, was working after hours on an on-call basis when she entered sub-sterile scrub room to retrieve supplies for the next surgery. As she walked into the room, the plaintiff’s feet went out from under her, sending her head backward into a tiled wall. Just as she started to slip, the plaintiff heard a voice yell, “watch, the floor is wet.” It turned out that the voice belonged to a custodian who had just mopped the floor. Due to the fall, the plaintiff suffered head and back injuries that rendered her unable to return to work.

Plaintiff sued Aramark, alleging that it was contractually responsible to Holy Redeemer Hospital for housekeeping services, including the cleaning, mopping and maintenance of floor surfaces and the supervision of those activities. Aramark moved for summary judgment, arguing that plaintiff had failed to demonstrate that Aramark had breached its limited contractual consulting duty, that it had any actual or constructive notice of a dangerous condition that caused the accident, or that it was the proximate cause of damages to plaintiff. Aramark claimed that it did not contract to provide housekeeping services such as cleaning and mopping, which were duties and responsibilities performed by Holy Redeemer employees, and argued that it was the duty of the possessor of land, i.e. Holy Redeemer, to protect the plaintiff and others from dangerous conditions on the property.

In opposition to the motion for summary judgment, plaintiff argued that the it was the fault of the custodian, who worked for Aramark, for failing to place warning signs near the wet floor. Plaintiff further contended that Aramark had supervisory control over the custodian, determined what equipment and procedures he was to use, implemented safety procedures and reviewed his performance. The trial court granted summary judgment in favor of Aramark, finding that the custodian was not a “borrowed servant” of Aramark, and that plaintiff failed to proffer evidence that Aramark was negligent in its training of custodial employees regarding wet floor safety.

On appeal, the Superior Court reversed the trial court’s granting of summary judgment and remanded the case. The Court found that Holy Redeemer entered into a contract with Aramark that included regular maintenance of the floors in the area where the plaintiff slipped and fell. Aramark trained and managed the employees that Aramark deemed reasonably necessary to provide efficient management services. Although these employees were employees of Holy Redeemer, the right to control the manner of mopping the floors rested with the custodian’s supervisor, who was an Aramark employee. The Court, viewing the evidence in the light most favorable to the plaintiff, found that a reasonable juror could conclude that Aramark controlled the daily performance of the custodians’ duties. Thus, summary judgment was reversed, and the case was remanded back to the trial court for further proceedings.

Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono with any questions.

Surgery Not Necessarily A Permanent Injury Under Tort Claims Act (NJ)

In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery.  Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment.

In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome.

By all accounts, plaintiff enjoyed a good surgical outcome,  and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the  accident.  Although she complained of debilitating pain, plaintiff  had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief.

Plaintiff’s medical expert  found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased,  or how that resulted in the substantial loss of any bodily function.

The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, “a mere limitation on a bodily function” will not suffice. Similarly, “an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain,” is insufficient.

The court dismissed the plaintiff’s claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act.  Even surgery may vault the requirement of a substantial and permanent injury.  The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person’s function.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at


Jury Finds Against Building Owner in 5 Pointz VARA Case

5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals.  The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects.

But eventually Wolfkoff decided to sell the warehouse to housing developers.  The artists filed suit under Visual Artists Rights Act (VARA) in Cohen v. G&M Realty.  

VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes.  VARA grants two primary rights:

  • The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.
  • The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work.

The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti.  Judge Frederic Block, in federal court in Brooklyn, 5 Pointz TRO decision, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute.

Last month the case went to trial, and this week the jury returned its verdict, finding in favor of plaintiff.  The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.”  It seems they reached different decisions for different works, and awarded a variety of damages.  The entire verdict should be released shortly.

And there is an interesting quirk: the parties agreed the jury verdict will be “advisory” and that the Judge will render the final decision — so we will be certain to report in the future on the final outcome.

Please e-mail Mike Bono with any questions or for more information.

First to Strike? First to File? Court Allows Counterclaim After Statute Runs (NJ)

When a plaintiff files litigation on the last day of the statute of limitations, can a defendant file a counterclaim arising out of the same incident?

In Veronica Barley v. Arnell Barley, step sisters sought damages from one another for personal injuries after an altercation. The plaintiff sister, Veronica, alleged that her sister, Arnell, scratched her and tried to run her over with a car. She filed suit on the last day of the statute of limitations.

Along with Arnell’s answer, she counterclaimed that Veronica was the aggressor who had actually injured her. The problem was that her counterclaim was filed after the statute had run. She argued that her claim should be considered as related back to the time of the filing of the complaint.

Although the trial judge was unpersuaded, the appellate division found that since the case was pending and the counterclaim was promptly filed, it related back to the original complaint filing date. The court noted that the plaintiff had delayed filing until the last day of the statute (implying this was tactically done) leaving her sister no time to counterclaim. Under these circumstances, the court felt that justice could only be served by allowing the defendant’s counterclaim to be heard.

For more information, contact Denise Fontana Ricci at

Unlisted Driver on Policy is an Uninsured Driver (PA)

An auto insured has responsibility to disclose the identities of resident, non-family members who have access to the insured’s vehicle. If the insured fails to do so, it is at his own risk.

The question of whether a co-habitating  girlfriend was covered by her boyfriend’s insurer arose in the case of Safe Auto Insurance Company v. Rene Oriental-Guillermo.  The girlfriend, Rachel Dixon, and another driver were involved in a two-car accident in Allentown, Pennsylvania. A passenger in Dixon’s car, Priscilla Jimenez, filed a personal injury lawsuit against Dixon, Dixon’s boyfriend( the owner of the car that Dixon was driving), and the driver of the other car involved in the accident.

The car that Dixon was driving was insured by Safe Auto Insurance Company (“Safe Auto”). The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the Policyholder, but were not related to the Policyholder and whom the Policyholder did not specifically list on the Policy. Although Dixon and the owner lived together, the policy did not list Dixon as a driver. Safe Auto denied coverage to Dixon for the accident.

Jimenez challenged the Unlisted Resident Driver Exclusion’s applicability on a few grounds, but most notably, on the grounds that the exclusion itself violates the public policy of the Commonwealth of Pennsylvania set forth in the Motor Vehicle Financial Responsibility Law (“MVFRL”). Jimenez argued that the Unlisted Resident Driver Exclusion contravenes the MVFRL’s mandate that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance; for this reason, Safe Auto should cover the accident.

The Pennsylvania Superior Court rejected this argument, instead, ruling that the Unlisted Resident Driver Exclusion places the obligation solely on the owner of a vehicle, and not the insurance company, to ensure that anyone who drives the owner’s car has insurance.

While the MVFRL does aim to ensure that all drivers are covered, the court concluded that there was no indication in the MVFRL that the burden of ensuring coverage must fall on the insurance company. In fact, the insured is in the best position to monitor whether members of his household who intend to drive are listed on his policy. Summarily, the court stated that “there is no provision in the MVFRL that indicates that the Legislature, when it enacted the MVFRL, intended to shift the risk to insurance companies to insure individuals who live with the insured, but are not related to the insured.” It’s simply not the insurance company’s burden.

Thanks to Sathima Jones for her contribution.

For more information, contact Denise Fontana Ricci at

Biomechanics Opinion Of Low Speed Crash Sufficiently Scientific? (NY)

The biomechanics of vehicle occupants involved in low-speed collisions is a potential defense to personal injury claims.  However, any proffer of expert biomechanical testimony should be prepared to meet the test for admissibility, i.e. proof that the opinion is based upon generally accepted principles and methodologies.

In Dovberg v. Laubachthe plaintiff was involved in a low speed chain reaction motor vehicle accident.  After securing summary judgment against the defendants on the issue of liability, the parties proceeded to a damages-only trial.  Prior to trial, defendants served an expert disclosure notice advising that they were going to call a biomechanical engineer/board-certified surgeon to opine that the force generated by the accident could not have caused the plaintiff’s knee injuries.  The disclosure notice indicated that the proposed testimony was based on deposition testimony and on the plaintiff’s medical records.  It also noted that the doctor’s opinion was based on scholarly works that had gained general acceptance in the field.  Plaintiff’s counsel filed a motion in limine to preclude the testimony because it made no reference to any empirical data or peer-reviewed journals, studies, treatises, or texts.  The lower court denied the motion, the doctor testified at trial, and the jury concluded that the accident was not a substantial factor in causing the alleged injuries.

 On appeal, the Second Department reversed the lower court’s decision and found that the defendant’s expert failed to pass the Frye test.  Specifically, the defendants failed to establish that their expert’s opinion was based on generally accepted principles and methodologies.  They noted that the rule does not require the majority of the scientific community to agree with the expert’s conclusion but, rather, the scientific community must accept the principles and methods used in evaluating the clinical data used to come to his conclusions.  The court concluded that the defendants failed to describe the methods used by their expert in drawing his conclusions and failed to provide specifics for the publications relied on including the authors, years of publication, and contents of the works.  The court also faulted the proffer for failing to provide a description of the methodology used to determine the force of the accident and the biomechanical engineering principles applied in formulating his opinion that her knees could not have contacted the dashboard.

 Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at



Mode of Operation Rejected in Sandwich Shop Slip (NJ)

In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the “mode of operation” doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens).

In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival.

At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages.

Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

This and That by Dennis Wade

In coverage and defense fights, the contest sometimes becomes personal and the warring advocates, insurers and lawyers alike, trade verbal barbs, often later regretted. Trading snarky remarks rarely advances the cause of either side and often brings down the wrath of the judiciary.  This unfortunate practice has spawned countless articles and continuing education courses, typically styled “Civility in the Practice of Law.”

Perhaps the best example of civility under stress comes from Ulysses S. Grant who, at the courthouse in Appomattox, treated Robert E. Lee with respect. In fact, before discussing the terms of surrender, Grant and Lee chatted about old times at West Point.  Not only was Grant a model of civility, his Personal Memoirs, published posthumously, is one of America’s great non-fiction literary works.  Grant’s prose, honed by the countless orders he wrote to men in the field, is simple, direct and moving.  And it is a book I recommend to all aspiring writers.  Grant’s account of meeting Lee at Appomattox touches me each time I read it:

“I was without a sword, as I usually was when on horseback in the field, and wore a soldier’s blouse for a coat, with the shoulder straps of my rank to indicate to the army who I was. When I went into the house I found General Lee. I had my staff with me, a good portion of whom were in the room during the whole of the interview…

“What General Lee’s feelings were I do not know. As he was a man of much dignity, with an impassible face, it was impossible to say whether he felt inwardly glad that the end had finally come, or felt sad over the result, and was too manly to show it… General Lee was dressed in full uniform which was entirely new, and was wearing a sword of considerable value. In my rough travelling suit, the uniform of a private, I must have contrasted very strangely with a man so handsomely dressed, six feet high and of faultless form. But this was not a matter that I thought of until afterwards.”

And that’s it for this This and That. If you have any thoughts on civility in coverage and defense litigation, please call or email Dennis.