Eagles Win!

Some of you may have heard that the Philadelphia Eagles just won their first Super Bowl. It’s kind of a big deal down here in Philadelphia. So for those who have interest in such things, enjoy the pictures of the Eagles’ celebratory parade that our very own Clayton Thomas took from our office windows.

Headstone Slip Case Will R.I.P. (NY)

In Carriero v St. Charles/ Resurrection Cemetery, the Appellate Division reversed a Supreme Court decision and upheld the principle that notice is a mandatory element of a premises liability case.

The plaintiff alleged she was injured at the defendants’ cemetery in Nassau County. As she was visiting the graves of her family members, she took a step near one of the headstones and her left foot began to sink into the ground. The spot where her foot sank into the ground was covered with grass, and it appeared to be level. According to the plaintiff, her father had stepped in the exact spot seconds before her accident without incident.

The plaintiff sued in Kings County Supreme Court, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appealed.

The appellate court found that the defendants did not have notice of the alleged condition. A defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence. Further, to constitute constructive notice, a dangerous condition “must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.”

In reversing the Supreme Court’s decision the Appellate Division ruled that summary judgment was warranted because the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create or have actual or constructive notice of the dangerous condition before the incident occurred.

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

Philly Once Again a Judicial “Hellhole”

The American Tort Reform Foundation’s Judicial “Hellholes program” surveys the civil courts and identifies areas where “judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner.” Recently. Philadelphia ranked #5 in the country on the top hell hole list.

The reason for this dishonorable ranking is largely due to three large product liability actions, including Risperdal, Xarelto, and the Pelvic Mesh case, as well as an increase in asbestos litigation. The pending Risperdal suits (an antipsychotic drug which allegedly caused gynecomastia) tripled from the start of 2017 through November after four juries returned verdicts over $70 million. However, the ATFR noted that some cases resulted in summary judgment; two judges threw out Risperdal lawsuits mid-trial, and one judge found that punitive damages are not available for Risperdal suits. It seems Philly juries are the cause for concern and not the bench.

The Pelvic Mesh cases demonstrate that plaintiffs seek out Philadelphia as a venue, even if they are not from Pennsylvania, due to the large verdicts. In fact, ATFR determined that only 19% of the plaintiffs were actually from Philadelphia. In April 2017, Johnson and Johnson was hit with a $20 million verdict by an out-of-state plaintiff and another recent verdict was for $57.1 million.

The good news is that the judiciary appears to have taken a more active role in denying interlopers from seeking out Pennsylvania as a plaintiff friendly venue; the bad news (for civil defendants) is that juries continue to render outrageous awards.

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

Mother of Resident Who Set Fire Not Liable For Condo Fire (NJ)

In Franklin Mutual Insurance Co. v. K.N., the New Jersey Appellate Division grappled with the difficult decision whether the mother of a mentally ill adult was liable when her daughter set fire to her condominium unit.

Defendant was the mother of Katrin, a mentally ill adult. Over the last ten years, Katrina was admitted to several psychiatric hospitals including one instance, where she was admitted to Hagedorn Psychiatric Hospital and diagnosed with bipolar disorder and mania.

In June 2010, the defendant bought a condominium for Katrina, helped her move in, and furnished the unit, where Katrina lived alone. Over the next few months, the police were called to Katrina’s residence on several occasions for “welfare checks.” On some occasions, Katrina exhibited manic episodes and the police transported her to a hospital for psychological evaluations. Subsequently, a fire broke out in Katrina’s condominium and she stated to police that prior to the fire, she had a drink of vodka and then lit a cigarette, and speculate the fire started when she fell asleep. The fire marshal concluded that Katrina’s cigarettes were not completely extinguished and thereby ignited a fire that ultimately damaged 12 units.

Plaintiffs filed a subrogation claim, arguing that because the defendant rented her unit to her mentally ill daughter, defendant owed Katrina’s neighbor a duty to protect them from Katrina’s potentially destructive conduct. Plaintiffs also argued it was foreseeable that Katrina could cause property damage to adjoining condominium units based on her prior diagnosed mental illness. The trial court granted defendant’s motion for summary judgment on liability.

On appeal, the Appellate Division affirmed the trial court’s decision and found no basis to impose a duty of care upon defendant. The Appellate Division acknowledged that in limited circumstances, New Jersey courts have imposed a duty to take reasonable action to guard against the acts of a third party. However, this was not applicable here as plaintiffs failed to demonstrate that defendant had sufficient knowledge to impose such a duty. Although Katrina had a clear history of mental illness, several psychiatric hospitals released her without finding that she posed a danger to herself, others, or property. Furthermore, no qualified professionals told defendant that Katrina could not live alone. Although Katrina repeatedly damaged her own property, it was not foreseeable that she would cause damage to the property of others.

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

Gym Member Tries to Race Past Waiver (PA)

Recently, in Vinson v. Fitness International LLC., a Pennsylvania court evaluated whether release and waiver language found in a membership agreement shielded a fitness center from liability when a member slipped and fell at the fitness center.

Plaintiff fell over a wet and worn floor mat at was injured. Prior to joining, plaintiff signed a membership agreement that stated that a member acknowledges that they gave up any claim or demand due to injury, whether by active or passive negligence on the part of the fitness center. The notice introducing the release was in bold and capital print.

Defendant sought summary judgment arguing: (1) Plaintiff could not demonstrate that Defendants created or had notice of the condition; (2) Plaintiff identified no expert and expert testimony was required for Plaintiff to meet her burden; and (3) upon signing the membership agreement and joining the fitness center, Plaintiff executed a valid waiver of all future claims of negligence.

In response to this argument, Plaintiff alleged that the waiver was void as against public policy. The court turned to prior decisions addressing the validity of a waiver clauses, namely Evans v. Fitness & Sports Clubs, LLC. In that case, the court determined that a waiver of liability only violates public policy if it involves a matter of interest to the public or the state, including matters involving an employer-employee relationship, public service, public utilities, common carriers, and hospitals.

In the Evan case, the court determined that the agreement at issue in that case related solely to the private affairs of those parties and did not affect a matter of interest to the public or the state, and therefore did not contravene public policy. After reviewing the law and applying the facts at hand, the Vinson court decided the waiver clause was identical to clauses that the court previously ruled on, and found the waiver in this case to be valid and enforceable. The court granted summary judgment based solely upon Defendant’s claim that Plaintiff executed a valid waiver of all future claims of negligence when she signed the membership agreement and joined the club.

Thanks to Chelsea Rendelman for her contribution to this post and please write to Michael Bono with any questions.

Injured Rock Climber Scales Past Summary Judgment Motion (NY)

In Lee v. Brooklyn Boulders, LLC, the plaintiff alleged she was injured at defendant’s indoor rock climbing facility when her foot landed in a gap between two safety mats. Defendant moved for summary judgment under the theory of assumption of risk; however, the lower court denied the motion and defendant appealed.

The Appellate Division, Second Department considered defendant’s assumption of risk theory, namely that by engaging in a sport or recreational activity, participants consent to the commonly appreciates risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. For example, those who engage in rock climbing can expect to fall awkwardly and injure themselves.

But the Second Department rejected defendant’s argument and found a question of fact. The fact that there was a gap in the mats where plaintiff fell constituted a concealed risk and moreover, there was a question of fact whether plaintiff’s injury a result of the generally accepted assumption of the risk.

Defendant further argued plaintiff signed a waiver that would release the defendant from any liability. However, the Second Department cited to General Obligations Law 5-326 that exempts any agreement on liability with pools, gyms, and places of public amusement or recreation. The legislature enacted GOL 5-326 for public policy reasons as the state did not want businesses to avoid liability by having their customers sign waivers. A such, the waiver signed by the plaintiff in this action was ruled to be void and unenforceable.

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

Dance Like No One is Watching, Email Like it will be Read Aloud in Court (NY)

Technological advances often create issues previously undecided by the Courts.  The use of email to contact clients, adversaries and the Court has become increasingly popular, but also comes with a host of discovery and confidentiality issues.

Recently, in Siras Partners v. Activity Kuafu, (1st Dept. 2018), the First Department heard a case regarding the waiver of attorney-client privilege due to the content of emails sent to third-parties that were produced in discovery. The Court found that by emailing a third party about the advice of his attorney, the defendant waived attorney-client privilege not only as to that email, but as to any and all documents related to the content of the email.

While the email was sent before the commencement of the lawsuit itself, the simple fact that advice from the defendant’s attorney regarding the substance of the lawsuit was within the email was sufficient to be a waiver of attorney-client privilege.

The crux of this issue is the content of communication as well as the recipient of that information. The recipient of the email in the Siras case was a business partner and friend of the individually named defendant, which may have been why the defendant was so quick to email communication with his private counsel.

Nevertheless, this decision shows that now, more than ever, it is imperative that attorneys are diligent in monitoring their communication via email and are diligent in warning their clients about the potential pitfalls of sharing confidential and protected information even with their closest family and friends.  And frankly, the title of this post also pertains to emails and texts unrelated to litigation.

Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

PA Superior Court Applies Fair Share Act to Strict Liability Action

The Pennsylvania Fair Share Act, enacted in 2011, regulates the apportionment of jury verdict awards for liable parties. The Fair Share Act mandates that all defendants are responsible for the share of liability apportioned to them, with the exception that a defendant could be liable for the entire award if found more than 60% liable. In plain English, any defendant with 60% or less allocated liability in a case involving the Fair Share Act is only responsible for its own culpability and cannot be made to satisfy the entire judgement if a portion of the judgment is, for whatever reason, not collectable.

The Fair Share Act unquestionably includes negligence verdict awards but the Pennsylvania Supreme Court and Pennsylvania Appellate Courts , until recently, had yet to weigh in regarding the applicability of the Fair Share Act for strict liability cases sounding in tort actions.

In Roverano v. John Crane Inc, the Superior Court of Pennsylvania dealt with the Fair Share Act within the context of a strict liability asbestos action where plaintiff claimed he sustained lung cancer as a result of exposure to asbestos.  The trial court had decided that the jury could not apportion liability because the case involved strict liability for asbestos exposure.

The Superior Court held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors. The Court held that was mandated per the legislative intent underlying the enactment of the Fair Share Act. Additionally, the Court held that the clause in the applicable statute “including actions for strict liability” is revealing. Finally, the Court found legislative history instructive as older versions of the bill included “causal negligence” but were replaced in the enacted statute with “liability”, thus allowing an inference of greater inclusion of possible actions.

The Superior Court’s decision means that a “fact-finder [should allocate] liability among joint tortfeasors in all types of cases, including strict liability cases”. The Court specifically declined to weigh in how exactly to allocate liability, but that the liability allocation should not be done on a per capita basis, Revealingly, the Superior Court did note that the jury should consider evidence of any previous settlements with released defendants as part of its liability determination.

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

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.