Hope or Speculation not Enough to Avoid Summary Judgment (NY)

In Brown v City of New York, the Appellate Division reserved a Supreme Court decision and corrected an often misapplied legal principle pertaining to summary judgment motion practice when discovery has not yet been completed. 

The plaintiff in Brown allegedly tripped and fell on a defective sidewalk abutting two homes in Brooklyn, NY, and sued the City of New York and both homeowners.  Defendants Julius Holley and Vanessa Holley owned one of the abutting properties and prior to the close of discovery, the Holleys moved for summary judgment dismissing all claims against them, contending that they did not create the alleged defect or cause it to occur through a special use of the sidewalk. They also argued that they were exempt from liability under the provisions of Administrative Code of the City of New York § 7-210(b), which shifts liability for maintenance of public sidewalks to the City of New York, if the adjacent property is a “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.”

In opposition, the City of New York and the plaintiff argued that the Holleys’ motion should be denied because it was premature due to outstanding discovery.  The Supreme Court agreed and denied the motion. 

On appeal, the Appellate Division found that the Holeys established their prima facie entitled to the protections of the NYC Administrative Code, and that they did not cause or create the condition.  As to whether the motion was premature, the Appellate Division cited its long standing principle that “the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.”  Applying this standard, the court found that the argument that the Holleys’ motion was premature because discovery had not taken place was without merit. Also, the decision noted that the plaintiff and the City failed to demonstrate that discovery might lead to relevant evidence as to the alleged liability of the Holleys or that facts essential to justify opposition to the subject motion were exclusively within the knowledge and control of the Holleys.

As such, the trial court decision was reversed and summary judgment was granted to the Holleys.   Thanks to George Parpas for his contribution to this post, and please write to Mike Bono with any questions.


Tree Harness Suit Survives Despite Plaintiff Wearing it Backwards (PA)

In Pennsylvania products liability law, a defendant may avoid liability by asserting that a plaintiff misused a product. However, the case of Zimmerman v. FallTech establishes just how difficult meeting that burden can be in the event a design defect is alleged.

In 2008, James Zimmerman came to help a friend cut down a dead tree and he used a FallTech safety harness. He skimmed the instructions and used the product relying on his common sense and intuition. However, he put it on backwards—the harness D-ring was facing his chest instead of his back—and suspended himself from the tree.  A gust of wind caused Zimmerman to change his position, causing his full weight to bear on the harness. The harness failed; he plunged thirty-five feet resulting in a collapsed lung and a leg fracture which ultimately needed amputation. 

FallTech argued it was entitled to summary judgment because Zimmerman misused the product. Specifically, he put the harness on backwards and tied it to a tree. This use was not foreseeable and therefore Zimmerman could establish the causation element of the claim.  The trial court agreed and granted the motion.

On appeal, Zimmerman argued that under Pennsylvania law, Zimmerman offered sufficient evidence to survive the motion.  The Superior Court agreed with Zimmerman. When a defendant asserts misuse as a defense, it must prove that the misuse “solely caused the accident.” Here, Zimmerman’s expert offered no less than sixteen design defects. Therefore, even if Zimmerman misused the product, FallTech was not entitled to summary judgement because there is sufficient evidence that the misuse was not solely the cause of the accident.  As such, the the Superior Court reversed the trial court and remanded for a trial.

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

Release Bars Suit Against Fitness Club (PA)

In Vinson v. LA Fitness, plaintiff Vinson signed a gym membership agreement with LA Fitness which contained an exculpatory clause releasing LA Fitness from LA’s “passive or active negligence” to the fullest extent permitted by law. During her deposition, Vinson claimed she had not read the entire agreement and did not notice the exculpatory clause. LA Fitness moved for summary judgment, relying on the exculpatory clause to bar any recovery for Vinson. The trial court granted summary judgment based upon the exculpatory clause.

On appeal, Vinson argued that the exculpatory clause in the contract violated public policy. Specifically, she contended that her cause of action involved maintenance of facilities, which impacts the health and safety of members of the public. LA Fitness countered by arguing that the exculpatory clause was a contract between two private parties, thus not implicating the public. Additionally, LA Fitness argued that a generalized consideration of public interest was insufficient to void a contract based upon public policy. Rather, public policy exceptions to exculpatory clauses include only a narrow subset of situations, predominately involving direct legal precedent and reference to existing laws. The appellate court agreed with LA Fitness, noting that “mere suppositions of public interest” are insufficient to invalidate contractual provisions, while specifically noting that the lack of supporting legal precedent or statute was also fatal to Vinson’s case.

Thanks to Matt Care for his contribution to this post and please write to Mike Bono for more information.

PA Court Vacates $35 Million Award due to Plaintiff’s Potential Negligence

Under the Pennsylvania’s Comparative Negligence Act, a plaintiff’s contributory negligence can be considered when compared to a defendant’s negligent conduct— but not to reckless conduct. Recently, the Superior Court established an interesting work-around in the context of multi-plaintiff actions, where one plaintiff can be held liable to the defendant for contribution and indemnity for the harm that plaintiff’s actions contributed to the other plaintiffs’ injuries.

In Straw v. Fair, Plaintiff John Straw was driving with three family members on the highway when the car’s failed hood mechanism caused the hood to open and obstruct his view. Mr. Straw stopped the car in the travelling lane and turned on his hazard flashers. Kirk Fair was driving a truck for Golon Masonry behind the Straws. Mr. Fair was under the influence of drugs, did not notice the stopped car, and crashed into the Straws at approximately 60 miles per hour. The accident seriously injured Mr. Straw and two of the passengers; the Straws’ six year-old-son died. Mr. Fair was convicted of several crimes, including DUI and Recklessly Endangering Another Person (REAP).

Golon Masonry filed a cross-claim against Mr. Straw for indemnity and contribution. The basis of the claim was that Mr. Straw was responsible for the passenger’s injuries because he did not need to leave the car in the running lane. The Straws filed a motion for summary judgment of Golon Masonry’s cross-claim, and the trial court ruled that because Mr. Fair’s conduct was reckless—as evidenced by his guilty plea to REAP—Mr. Straw’s comparative negligence could not be considered because the Act only applies to a defendant’s negligent conduct. The case went to trial and the jury returned a verdict of $35 million.

The Superior Court reversed the trial court’s finding because it “mistakenly confused [Golon Masonry’s] cross-claim against Mr. Straw with [Golon Masonry’s] affirmative defense that Mr. Straw was comparatively negligent for his own injuries.” The Superior Court reasoned that the trial court was correct in interpreting the Act as not applying to reckless conduct. However, in asserting a cross-claim for indemnity or contribution, defendants were not alleging that Mr. Straw’s negligence should not reduce or diminish his recovery. Rather, the cross-claim alleges that Mr. Straw’s negligence renders him directly liable to the passengers or to defendants for contribution. Thus, Mr. Straw was essentially just another defendant as to this cross-claim. The Superior Court clearly held that Pennsylvania law permits contribution between reckless and negligent co-defendants—and in this context can be applied to a plaintiff.

As a result, the Superior Court reversed the trial court’s motion for summary judgment and  vacated the $35 million verdict.

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

John Doe, with a Phantom Vehicle, on a Highway (NJ)

Wednesday, May 9, 2018 – The infamous phantom vehicle reared its ugly (cylinder) head a few weeks ago in Krzykalski v. Tindall, the facts of which otherwise are rather innocuous: plaintiff Krzykalski was attempting to make a left-hand turn when he was rear-ended by defendant Tindall. Both agreed, however, that a third driver – our phantom vehicle – unexpectedly made a left-hand turn from the right lane, cutting off both parties. Plaintiff was able to stop without striking the phantom vehicle; defendant struck the rear of plaintiff’s vehicle.

At trial, plaintiff made two requests: (1) to enter a directed verdict on liability against defendant Tindall for the rear-end impact and (2) to remove John Doe from the jury verdict sheet. The trial judge denied both requests. The jury, free to apportion liability between defendant Tindall and John Doe, found Doe to be 97% at fault for the accident. Since the jury awarded damages in the amount of $107,890, the trial judge entered judgment against defendant Tindall in the amount of $3,236.70 – 3% of the total award. Plaintiff, unhappy with the minor recovery against the only other named party, appealed.

In his appeal, plaintiff focused on the trial judge’s refusal to strike John Doe from the jury verdict sheet, thereby allowing the jury to apportion fault to an unknown party. Since “a fictitious party is not a party to a suit,” Bencivenga v. J.J.A.M.M., Inc., 258 N.J.Super. 399, 407 (App.Div.), certif. denied, 130 N.J. 598 (1992), the argument goes, and the trier of fact is to determine “each party’s negligence,” N.J.S.A. 2A:15-5.2(b), allowing the jury to apportion liability to a fictitious non-party was reversible error. The Appellate Division, in Krzykalski v. Tindall, 448 N.J.Super. 1 (App.Div. 2016), disagreed and affirmed the trial judge’s rulings. Plaintiff petitioned the New Jersey Supreme Court for certification.

To appreciate plaintiff’s argument, it is necessary to take a step back to examine the facts of Bencivenga, supra. In that case, a nightclub patron sued the club after he was punched in the face by an unknown patron. Id. at 402. Contrary to Krzykalski, the trial court refused to allow the jury to consider the John Doe defendant’s negligence. Ibid. The Appellate Division, on appeal, relied on policy grounds to affirm the trial court’s ruling: since the nightclub was more likely to know the assailant’s identity, it was forced to either identify him and mitigate its share of fault or bear the cost. Id. at 410. Plaintiff therefore argued the same policy considerations involving phantom patrons apply to phantom vehicles.

The New Jersey Supreme Court disagreed. In affirming the Appellate Division’s final judgment, the Supreme Court explicitly concluded that “’phantom vehicles’ driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault.” (19-20). Referring to Bencivenga as an exception to the general rule, the Court explained that a defendant driver is inherently in a different position than a commercial nightclub with patrons and invitees, and was not more likely than plaintiff to know John Doe’s identity in this case. (17, 20). As a result, the general rule applies, and the jury properly apportioned fault between defendant Tindall and John Doe. (21).

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

Courts in Pennsylvania Require Actual Evidence to Prove Bad Faith (PA)

The Superior Court of Pennsylvania recently affirmed a trial court opinion, which granted an insurance company’s motion for summary judgment to dismiss the appellant’s complaint alleging the insurance company acted in bad faith by initially denying coverage for water damage to the appellant’s building.

In the case of Reynolds v. Pennsylvania National Casualty Insurance Company, (“Penn National”) issued an all-risk business insurance policy to Reynolds, which provided coverage for water damage to Reynold’s building (the “Policy”).  The Policy, however, excluded coverage for damages to the interior of the structure caused by rain, except where the rain entered the building because of damage caused by a covered loss.  The Policy also included an endorsement which allowed coverage of up to $100,000 “for water damage caused by a backed up sewer, drain, or sump pump.”  After receiving notification of the initial water damage, Penn National sent a reservation of rights letter stating that Penn National would investigate the cause of loss and assign an expert to examine the damaged roof.   Based on Penn National’s investigation, which determined that the building’s roof was in “good condition,” Penn National sent Reynolds a denial letter.

Subsequently, one of Reynold’s employees reported that on the day of the water damage, he witnessed a blocked drain that forced the accumulation of 18 inches of water inside the building. Accordingly, Reynolds requested that Penn National reconsider its initial denial.  In doing so, Penn National agreed to rely on Reynold’s expert report, which indicated the “plugged drain caused a backup of rainwater on the roof.”  Accordingly, Penn National granted the limited coverage of $100,000 under the Policy’s Business owners endorsement, which was for damage caused by backed up sewers and drains.

While the Superior Court of Pennsylvania did consider the extenuating circumstances surrounding Penn National’s initial denial, ultimately the Court affirmed the trial court’s decision and analysis because Reynolds failed to provide any evidence that Penn National’s initial denial of coverage was done in bad faith.

Thanks to Lauren Berenbaum for her contribution for this post.  Please write to Vito A. Pinto for further information.

Deemer Statue Leads to Dismissal of Damages (NJ)

In Sulpizi v. LM General Insurance, plaintiff appealed from the trial court’s dismissal of his claim for PIP benefits under the Deemer Statute, and the appellate court reviewed the lower court’s decision on appeal. Plaintiff, a resident of Pennsylvania, owned a vehicle that has a Pennsylvania automobile insurance policy provided by defendant. Plaintiff also owned a vacation home in New Jersey.

The underlying action arose when plaintiff was at his NJ home when he decided to mail a letter. He drove his car from his home and parked across the street from a mailbox. Plaintiff exited his vehicle and began to walk across the street towards the mailbox. As he crossed the street, he saw a pickup truck approaching him and he rushed to the side of the road. He tripped and fell on the curb near the mailbox resulting in personal injuries.

Plaintiff’s Pennsylvania automobile policy issued by defendant provided $5,000 in PIP medical benefit coverage. Plaintiff submitted a PIP claim to defendant for benefits exceeding $5,000, claiming he was entitled to $250,000 in additional coverage under the Deemer Statute. NJ’s Deemer Statute applies to out-of-state driver who are injured in accidents in New Jersey. Under the Deemer Statute, if you are an out-of-state resident and you are hurt in an accident in New Jersey, you will be subject to New Jersey’s restrictive limitation on lawsuit or “verbal threshold” if your insurance company is licensed to transact business in New Jersey.  The verbal threshold places limitations on the right to recovery for injuries sustained in a motor vehicle accident.

The appellate court reviewed whether the Deemer Statute requires coverage for a claim involving a pedestrian injured after parking his car and while walking across the street. The court determined that the coverage under the Deemer statute demanded a substantial nexus between the out-of-state vehicle and the accident for which benefits were sought. The court opined that because plaintiff never came into contact with the oncoming vehicle and was injured as he moved out of the way, there was no nexus between his use of his vehicle and the resulting injuries. The appellate court thereby afirmed the trial courts ruling and maintained the dismissal against defendant.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Music School Denied Additional Insured Status For Negligent Mopping (NY)

Additional insured endorsements often require a causal connection between the named insured’s acts or omissions and the loss in order to trigger coverage to the additional insured. The intention is to provide coverage to additional insureds exposed to vicarious liability while avoiding coverage for the additional insured’s own negligence.

In Hanover Ins. Co. v Philadelphia Indem. Ins. Co., the First Department determined whether the Manhattan School of Music was entitled to coverage as an additional insured under a policy issued to Protection Plus. In the underlying personal injury action, a security guard employed by Protection Plus alleged that he slipped and fell on a recently mopped floor while working at the Manhattan School. The testimony revealed that the Manhattan School was responsible for having wet-mopped the hallway floor prior to the plaintiff’s fall. The trial court found that the security company who employed plaintiff was equally liable with the music school.

The insurance policy at issue provided that additional insured coverage applied to “any bodily injury caused, in whole or in part,” by the “acts or omissions” of the named insured. The court determined that the language in the endorsement was intended to provide coverage for an additional insured’s vicarious or contributory negligence, and to specifically exclude coverage for the sole negligence of any additional insured.

Accordingly, when coverage is limited to an injury “caused, in whole or part” by the “acts or omissions” of the named insured, an additional insured is entitled to coverage only when the damages are the result of the named insured’s negligence or some other act or omission by the named insured. Here, there was no negligence by the named insured and because the additional insured Manhattan School caused the wet floor condition which caused the plaintiff’s fall, the Manhattan School was not entitled to coverage as an additional insured under the policy.

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

Court Stops Short of Ruling in Favor of Shortstop (NY)

In Lerman v. Little League Council of New York City Inc., the 10 year old plaintiff was struck in the face by a baseball and injured during Little League practice. This was plaintiff’s very first practice and his mother told the coach that the child had no experience. The coach proceeded to place the plaintiff at shortstop, and the third batted ball struck plaintiff in the face. Plaintiff’s parents had signed the League’s waiver form.

In opposition to the Little League and the coach’s motion for summary judgment, the plaintiff’s mother claimed that the defendants breached their duty of reasonable care to the child and were negligent in their supervision and coaching by failing to test the child’s skill set before putting him on the field and by placing him at the “highly skilled” shortstop position despite being warned by his mother that he had never played baseball before.

While defendants claimed that plaintiff voluntarily assumed the inherent risks involved in playing baseball, his mother asserted that the defendants created a dangerous condition that caused his injuries by their indifference to his level of skill and experience.

In granting defendants’ motion dismissing the complaint, the New York Supreme Court cited the long line of cases holding that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” The court noted that the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport. In contrast, related risks which are commonly encountered or are inherent in a sport, such as being struck by a ball or bat in baseball, are “risks for which participants are legally deemed to have accepted personal responsibility.” The theory of negligent supervision is inapplicable where a plaintiff has assumed the risk.

The Court concluded that plaintiff consented, through his parents, to the possibility of being struck and injured by a baseball during practice, and the coach’s decision to place the plaintiff at shortstop was immaterial.

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

Another Day at the Beach

In Brian Reilly v. Patchogue Properties, LLC, plaintiff was attending an engagement party for his cousin, Matthew Hansen, at the Patchogue Shores Community Center, which is owned by the defendant.  The defendant is a community center, comprised of people in the community, and which owns a small beach customarily utilized by residents of the community. After consuming 6-7 beers throughout his time at the party, plaintiff decided to dive off of a dock into a beach with shallow water, sustaining injury.  The issue at play was whether plaintiff could hold the incorporated community liable for a violation of Health Code and a breach of defendant’s common law duty to plaintiff.

The Health Code is straightforward in its requirement that beaches must have “[c]learly visible depth markings” which state “No Diving” if the water is less than eight feet in depth. The subject dock in this case fit the criteria and was unmarked.  However, defendant moved for summary judgment under an exception of the Code which excludes beaches “owned and operated by a condominium…or an incorporated or unincorporated property association…”  The exception only applies when the beach is used exclusively by members of the subject entity claiming the exemption.

Plaintiff unsuccessfully argued that the testimony from the defendant’s president, who testified that the defendant entity pays an assessment just like a homeowner, is part of the community, and is accessible by pedestrians and used by family and friends, prevents the defendant from the benefit of the exception since the beach is not solely utilized by residents of the community. The Court rejected this argument, refusing to apply a strict reading of the Health Code.  Instead the Court found that nonresidents occasionally utilize a beach is insufficient to strip the defendant from the exemption. Similarly, the Court held that plaintiff’s reckless conduct constitutes a superseding event which absolves the defendant from liability.

The ruling is a relief for communities which operate a small, noncommercial beach for its residents. Even though warning signs are always advisable, the ruling shows the Court’s reluctance to apply the same standard to a community beach that it would to a public or for profit beach.  Perhaps more importantly to defendants everywhere, while New York does not have a direct bar from recovery for drunk defendants, this ruling is another example where Judges look unfavorably upon poor decisions of plaintiff, particularly when they are drunk.


Thanks to Chris Gioia for his contribution to this post.  Please write to Vito A. Pinto with any questions or for more information.