Author Archives: Brian Gibbons

It’s Not Enough Just to Prove Negligence – Causation is Key (PA)

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On December 7, 2018, the Superior Court of Pennsylvania reversed a grant of post-trial relief in favor of plaintiff in Koziar v. Rayner.  

The case stems from a slip-and-fall which occurred on the property of Neal and Andrea Rayner.  Koziar worked as a house cleaner for the Universal Group, and was assigned to clean the Rayner’s home. She and her co-workers finished cleaning between 7:00 pm and 7:15 pm and proceeded through the laundry room of the house into the attached three-car garage.  She testified she was unfamiliar with the area and that she fell and injured her ankle on a lip while exiting the garage.  However, she provided conflicting stories of her accident to her treating physician all of which was documented in his reports.

At trial, the Rayner’s argued that the alleged “lip” between the garage apron and garage floor was in good condition and that they were not negligent. After hearing testimony from both parties, the jury returned a verdict that the Rayner’s were negligent, but their negligence was not a factual cause of the harm to Koziar. 

Following the verdict, Koziar filed a motion for post-trial relief which was granted as the trial court determined that once the Rayner’s were deemed negligent and only Koziar’s uncontested medical evidence was presented, the jury’s finding thatthe Rayner’s were not the factual cause of Koziar’s injuries defied logic.

As such, the Rayner’s appealed arguing that, while theyconceded that Koziar suffered an injury based on the medical evidencepresented, they did not concede that their negligence was the factual cause ofKoziar’s injury.  In reversing the trial court’s grant of post-trial relief, the court indicated that the fact that there was uncontroverted medical evidence does not relieve the plaintiff from proving that the negligence of the Rayner’s caused Koziar’s injuries.  The court noted that Koziar provided multiple accounts of how she fell and the jury could have found one or more of them credible.  Therefore, the jury’s verdict did not defy logic, but the trial court’s grant of post-trial relief in this matter certainly did.  Every element of negligence must be proven and there’s no short-cuts if there’s negligence and damages but no causal connection.

Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

 

The Customer is Always Right (NY)

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Retailers should be weary of holiday shoppers this season, particularly in light of the Second Department’s recent decision siding with a customer who tripped and fell on a low table in a Hollister Co. store.

Defendant moved for summary judgment on the basis that the placement of the table was open and obvious, and further that plaintiff walked in an area not meant for ingress/egress. In support of its motion, defendant submitted plaintiff’s deposition transcript, where plaintiff testified that he did not see the table before falling because the store was dark, and the low table was obscured by a taller, larger table placed near it.

The Second Department overruled the lower court’s dismissal, finding that defendant failed to establish, prima facie, that the condition created by the subject table was open and obvious in light of the surrounding circumstances despite defendants submitting evidence as to the lighting conditions and presence of other customers in that area.

The Court also noted that the testimony of defendant’s employees further demonstrated that the area traversed by plaintiff was an “egress,” which made a possible accident more foreseeable.  Thanks to Theresa Dinh for her contribution to this post.  Please email Brian Gibbons with any questions.

Self-Destructive Selfies (NY)

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Defense attorneys have increasingly turned to social media  to defend against exaggerated claims of personal injuries. In Smith v. Brown, 2018 NY Slip Op 28299, the plaintiff commenced an action in Supreme Court, Bronx County, to recover for personal injuries allegedly sustained in a motor vehicle accident.

At the discovery stage, one of the defendants served plaintiff with a notice to admit, seeking to admit: (1) whether plaintiff owns and maintains an Instagram account with a specific “handle”; (2) whether the account associated with that handle was changed from a public to private account setting after a specific date; (3) whether plaintiff was depicted in a number of specified photographs obtained from the Instagram account — and whether those photographs were taken after the accident. Defendant served copies of each of the 33 photographs for which admissions were sought along with the notice. The photographs appeared to depict a young woman (presumably the plaintiff), engaged in different activities, such as riding in a car, climbing a rock, and walking on a boardwalk.

Plaintiff filed a motion seeking a protective order to vacate or strike the notice to admit arguing that defendant was attempting, impermissibly, to use the notice to admit in lieu of other disclosure devices, such as a deposition. Plaintiff also argued that the notice to admit was improper because it sought admissions on material issues in the litigation. Defendant opposed the motion, arguing that the admissions sought in the notice to admit were relevant to the issue of the extent of plaintiff’s damages, and not to any ultimate questions of fact or any legal conclusions.

The Court agreed with defendant, and plaintiff’s motion was denied. The Court ultimately held that the notice did not seek admissions as to any ultimate conclusions (such as which driver or drivers were negligent) or information of a technical, detailed or scientific nature. Therefore, those matters on which defendant sought admissions could be explored at a deposition and were thus within the proper scope of a notice to admit.

Social Media is now, much like post-deposition surveillance, a valuable tool in gauging a plaintiff’s credibility, and also, mitigating a future pain and suffering claim.   Thanks to Tyler Rossworn for his contribution to this post.  Please email Brian Gibbons with any questions.

The Customer is Sometimes Wrong (PA)

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In Thomas v. Family Dollar, the plaintiff was shopping in the Family Dollar store when she slipped on a thick, yellow substance next to a broken glass bottle.  She filed a complaint in state court, but it was removed by the defendant to federal court.

Plaintiff alleged that the Family Dollar was negligent in breaching its duty to keep its premises clear of substances on the floor.  The Family Dollar moved for summary judgment, arguing that the substance was an open and obvious condition and it owed the plaintiff no duty of care.

In deciding on the motion for summary judgment, the court noted that it was uncontested that the plaintiff was a business invitee, and that Pennsylvania law limited the duty of care owed to business invitees.  Plaintiff acknowledged that there were no visual obstructions surrounding the liquid that would have concealed it from her view, but argued that she was otherwise focused on the products displayed on the shelves.  The Court, however, stated that it was Hornbook law in Pennsylvania that a person must look where she is going and further noted that other Pennsylvania courts have rejected plaintiff’s argument.  The Court observed that although a lesser degree of attention was required of customers in stores than those walking along sidewalks, the general rule still applies that where one is injured as a result of a failure on her part to observe and avoid an obvious condition, she would not be heard to complain.

The Court found that the substance that plaintiff slipped on posed an obvious condition and its danger should have been readily apparent to a person exercising normal perception and judgment.  Therefore, the Court found that the Family Dollar had no duty to plaintiff, and granted its summary judgment motion.  The Court further noted that the plaintiff failed to prove that the Family Dollar had adequate notice of the condition to breach a duty of care. Thanks to Alexandra Perry for her contribution to this post.  Please email Brian Gibbons with any questions.

Second Department Limits Assumption of Risk Doctrine in Football Injury (NY)

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In M.P. v. Mineola Union Free School District, the Second Department reversed a lower court decision granting summary judgment to the defendant. Plaintiff was a nine year old student who was playing touch football at recess and was injured when, going for a catch, he crashed into playground equipment.

The defendants argued that the infant plaintiff assumed the risk of playing football on a field adjacent to the playground equipment and that any negligent supervision was not the proximate cause of his injuries.  Defendant cited to plaintiff’s testimony that he plays in the area all the time at recess despite warnings to stay away from the school recess monitors.

The Second Department overturned the dismissal of the suit, because the school district failed to meet its burden in proving inherent risk, and failed to establish, prima facie, that its alleged negligent supervision in permitting the students to play football near the playground did not “create[ ] a dangerous condition over and above the usual dangers that are inherent in the sport.”

The Second Department ruled despite testimony from the plaintiff that he and his friends routinely disregarded the boundaries set by school employees for the playing area, and would play outside the designated boundaries on a portion of the field that was on the edge of an adjacent playground.

The Second Department also noted that plaintiff’s age (9 years old) was too young to “appreciate the risks involved” in playing  touch football.   We suspect there were recess monitors in the schoolyard — possibly volunteers — who “let it slide” when they saw the children playing football near the equipment.

If we might editorialize for a moment, this seems to us like a case where the “call on the field” was correct, and the appellate court opted to hold the school district to an unreasonably high standard.  Thanks to Paul Vitale for his contribution to this post.  Please email Brian Gibbons with any questions.

Decedent’s Statements to His Wife Admissible as Hearsay Exception, Defeating Estate’s MSJ (NY)

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In Caminiti v Extell West 57th Street LLC, 2018 WL 5914129, 2018 N.Y. Slip Op. 07667 (1st Dep’t 2018), the decedent in a wrongful death Labor Law suit made a statement to his wife in the ER after an accident that he “should have known better” than to use a ladder as he did.  He later died.  Plaintiff, the administratix of the deceased’s estate, sued under Labor Law §240(1) and Labor Law §241(6) against defendants, the owner, developer, and general contractor of the project.

Plaintiff made a motion for partial summary judgment on Labor Law §240(1) and the defendants made a motion for summary judgment to dismiss the complaint.  Judge Arlene Bluth in New York Supreme, granted plaintiff’s motion and denied the defendants.  Upon appeal, the First Department modified the order to also deny the plaintiff’s motion and granting defendants’ motions as to the Labor Law §241(6) claims based on several Industrial Code sections.

The First Department ruled that the lower court properly ruled that the now-deceased husband’s statement regarding his accident was admissible as a declaration against interest in order to establish his wife, as an adminstratix of the deceased husband’s estate’s, prima facie case under Labor Law §240(1).  The statements showed, as a matter of law ,that the ladder started to move while he was working on it, and when he tried to stabilize the ladder, it tipped and struck him in the chest.  The First Department ruled that plaintiff was not required to present further evidence that the ladder was defective.

However, the defendants raised triable issues of facts as accident reports showed that while he was on the ladder, he felt chest pains and his legs became “unsteady” or “wobbly.”  Furthermore, his co-workers saw the ladder in an upright position about 10 feet away from the decedent when he expressed that he was suffering chest pains.  As such, plaintiff’s partial motion for summary judgment on Labor Law §240(1) was dismissed.

Furthermore, the First Department ruled that since plaintiff failed to specifcy any particular subsection or subdivisions of the provisions Industrial Code sections, the Labor Law §241(6) claim as to those provisions were considered abandoned. As such, Defendant’s motions for summary judgment to dismiss the complaint was granted as to those provisions.

The fact that hearsay evidence from the deceased was admitted through the administratix’s testimony shows the value in a plaintiff administrator’s testimony, not just to damages, but potentially to liability.  Proactive defense counsel should be wary of such testimony while taking depositions and be ready to cross-examine the administrating witness attempting to bring in any hearsay evidence from the deceased.

Thanks to Jonathan Pincus for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Claim Dismissed After Counsel Ignores Court Order (NY)

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In Soto v Chelsea W26, LLC (2018 NY Slip Op 08170), the Appellate Division sent a message that cursory excuses for disregarding Court Orders or opposing motions will not be tolerated.

The plaintiff, Missael Soto, filed a lawsuit alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence. In April 2015, the defendants served an Answer and initial discovery demands.  In November 2015, a preliminary conference was held in Queens County Supreme Court, with an Order issued, directing the plaintiff to serve a Bill of Particulars within 30 days.  The plaintiff did not comply, and six months later, in May 2016, two separate Court Orders required the plaintiff to serve a Bill of Particulars and responses to the initial discovery demands on the defendants.

In June 2016, the defendants moved pursuant to CPLR 3126(3) to strike the complaint based upon the plaintiff’s failure to produce a Bill of Particulars and responses to the combined discovery demands. The plaintiff did not file any opposition to this motion.  As such, by Order entered November 7, 2016, the Supreme Court granted the defendants’ unopposed motion pursuant to CPLR 3126(3) to strike the Complaint.

Then, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the Order striking the Complaint, arguing that a law office failure resulted in the per diem attorney hired to cover the motion appearance, failing to appear in Court. But the Supreme Court denied this motion, resulting in the plaintiff appealing this decision to the Appellate Division, Second Department.

The Appellate Division affirmed the denial.  To vacate an order, the plaintiff must 1) demonstrate both a reasonable excuse for the default and 2) a potentially meritorious opposition to the motion. The Appellate Division took issue with the first prong of this standard, the reasonable excuse.   Regardless of whether the firm’s per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff’s attorney made a conscious decision to send a per diem attorney on the motion’s return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition.  Plaintiff’s attorney’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse.  The Appellate Division affirmed the Supreme Court’s denial of plaintiff’s motion to vacate the Order striking the Complaint.  Thanks to George Parpas for his contribution to this post.  Please email Brian Gibbons with any questions.

NJ Court Dismisses Plaintiff’s Claim against Parent (NJ)

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A motion for summary judgment should only be granted when the record reveals no genuine issue as to any material facts.  A recent New Jersey Appellate Court decision examined whether conflicting expert reports served to create a genuine issue of fact to overcome summary judgment.

In Platvoet v. Mancini, the plaintiff sued her own mother after she suffered an injury when she fell into the pool on her mother’s property.  Plaintiff’s engineering expert found that the pool’s deck was a “dangerous condition,” violated applicable codes, and that the defendant should have warned the plaintiff of the dangerous condition on the property. Defendant’s expert disagreed on the condition of the property, whether defendant should have warned the plaintiff, and the cause of the accident.

The plaintiff appealed the trial court’s dismissal of her claim, arguing that the conflicting expert opinions created genuine issues of fact that precluded summary judgment.  The Appellate Court upheld the dismissal of the plaintiff’s claim, noting that there was absolutely no evidence that the alleged dangerous condition of the pool had anything to do with the accident, and it was undisputed that the plaintiff was thoroughly familiar with the pool configuration.

This case is important because it reveals that the mere existence of an expert report may not be enough to create a genuine issue of material fact sufficient to overcome dismissal of a claim.  The plaintiff still needs to connect the expert’s findings to the cause of the accident.  Hopefully the lawsuit did not dominate conversation at this family’s Thanksgiving dinner!

Thanks to Heather Aquino for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Second Department Affirms Labor Law SJ Denial Due to Conflicting Accident Accounts (NY)

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In Giannas v 100 3rd Ave Corp, Plaintiff was repairing fencing on the fourth floor of a building when he noticed what appeared to be a metal stud nailed across an open window. Plaintiff crawled onto the scaffolding outside the building  to knock the stud into the building by hitting it with his hammer. However, the scaffolding moved toward the street, causing him to lose his balance and fall through the window, into the building.

Plaintiff alleged violations of Labor Law §§ 200, 240(1) and 241(6), and moved for summary judgment on Labor Law §240(1) cause of action but the Court denied the motion. In addition, the Court granted the construction manager’s motion for summary judgment dismissing the complaint as asserted against it. Finally, the Court granted the subcontractor scaffolding company’s motion for summary judgment dismissing the Labor Law §§ 200, 240(1), and 241(6) causes of action, and denied that branch of its motion which was for summary judgment dismissing the common-law negligence cause of action. Plaintiff and the scaffolding supply and installation company appealed the Court’s decision.

On appeal, the Second Department affirmed the lower court’s order granting the construction manager summary judgment on Labor Law §240(1) reasoning that the construction manager had no control of the means and methods of work under the contract and did not control the work or supervise safety.  The Appellate Court further affirmed the lower court’s denial of plaintiff’s motion for summary judgment on Labor Law §240(1)because there were conflicting accounts of how plaintiff fell, including whether he had ever mentioned that the scaffold moved causing him to fall.  Finally, the subcontractor’s motion for summary judgment on common-law negligence was denied because of question of subcontractor’s affirmative negligence for launching an instrumentality of harm under Espinal, which also required denial of subcontractor’s motion on contractual indemnity.

Thanks to Meg Adamczuk for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Appellants’ Failure to Object at Trial Costs Them Appeal (PA)

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The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the amount of damages awarded by the jury’s verdict.  In Showers v. Sam’s East, Inc., PA Superior Court No. 810 EDA 2018, appellants, who were plaintiffs in the underlying case, filed an appeal challenging the amount of damages awarded by the jury.

In the underlying case, Plaintiff Donyale Showers sued Sam’s East, Inc. after she slipped and fell on a wet floor at the Sam’s Club in Exton, PA.  Showers complained of right leg and knee pain, however she continued to shop.  A few days after the fall at Sam’s Club, Showers was walking with her husband when her right leg gave out causing her to fall and hit her right knee.  She underwent arthroscopic surgery for a torn meniscus.

At trial, her treating doctor testified that her torn meniscus was caused by both falls – the one at Sam’s Club and the subsequent fall following her walk.  Sam’s Club countered by putting forth defense expert testimony opining that Showers’ injuries were not causally related to her fall at Sam’s Club.  The jury found that both Sam’s Club and Showers were 50% negligent and awarded Showers $7,481.40 in damages; which equaled the total amount of medical costs claimed by Showers.

Showers appealed and argued that the court erred and abused its discretion by failing to submit to the jury a verdict slip that included separate damages categories for medical expenses, loss of consortium, and pain and suffering.  Showers argued that, at a charging conference prior to deliberation, they submitted a proposed verdict slip that delineated damages for both medical expenses and pain and suffering.  The court denied their request, and therefore Showers alleged that there was no way to determine whether the jury’s damage award is solely for medical expenses or also included an award for pain and suffering.

Upon review, the PA Superior court noted that Showers did not produce any record of the charging conference and therefore no evidence of any objection made regarding the final verdict sheet during the conference.  Additionally, Showers did not object to the final verdict sheet form during trial proceedings and also consented to the trial court’s jury instructions when they were given.  Thus, the first instance of Showers’ objection to the verdict sheet appeared in their post-trial motion.  Because there is no record of Showers objecting to the final verdict sheet either at the charging conference or during the trial proceedings, the PA Superior Court concluded that Showers had waived such objection.

It is often said that trial objections are like flags — they are either raised or “waived.”  Here, by failing to preserve her objection to the final verdict sheet, the plaintiff waived that objection, and the modest verdict stands.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.