Author Archives: Brian Gibbons

Skiers Assume Risks — But Not All Risks (NY)

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A lawsuit was brought on behalf of a girl who allegedly broke her leg in a skiing accident at Catamount Ski Resort, located in upstate New York on the Massachusetts border. Apparently, plaintiff ran into an unpadded pole that was located in an area where skiing was permitted.

After discovery, the ski resort moved for summary judgment arguing that the plaintiff assumed the risks associated with skiing. Justice Manuel Mendez, a judge sitting on the Supreme Court in New York County granted Catamount’s motion, because plaintiff “assumed the risks” associated with skiing. Plaintiff appealed to the Appellate Division, First Department.

On appeal, the Appellate Division, First Department heard all arguments in regards to the case. When both sides rested, the court decided that the plaintiff did not assume the risk of hitting an unpadded pole in a skiing area and that it was an increased risk, not contemplated by the General Obligations Law section that barred such suits.  The panel stated that because of the location of the unpadded pole, it could be determined that the defendant failed to keep their property in a reasonably safe condition.

Thanks to March Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

Hills and Ridges Doctrine Prompts Dismissal of Suit (PA)

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On October 15, 2018, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of defendant Jeanne Coker in Seibert v. Coker.  The case stems from a patch of black ice on Coker’s property which allegedly caused plaintiff to slip-and-fall and injure herself.

On February 6, 2014, T. Seibert slipped on a patch of black ice as she was departing from her home visit to Coker.  In Pennsylvania, the “hills and ridges” doctrine protects landowners from liability for generally slippery conditions resulting from snow and ice where the owner has not permitted the ice and snow to unreasonably accumulate in ridges and elevations.  Thus, in order to recover for a fall on an ice or snow covered surface, a plaintiff must prove: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.  T. Seibert attempted to claim that Coker had constructive notice of the patch of ice, however, she produced no evidence to support this point.  As such, the trial court granted summary judgment in favor of Coker and the Plaintiffs’ subsequently appealed.

On appeal, Plaintiffs’ claimed they produced enough evidence to survive summary judgment, but the Superior Court held that no evidence had been produced to support Plaintiffs’ accusation that Coker had notice, actual or constructive. of the black ice.  As such, the Superior Court affirmed the dismissal.

This case highlights the high burden that the hills and ridges doctrine imposes on plaintiffs in Pennsylvania, and the difficulty of proving constructive notice in such cases.  As such, focusing on this particular element is crucial in determining whether a summary judgment motion is appropriate early on in a slip-and-fall case.  Thanks to Garrett Gitler for his contribution to this post.   Please contact Brian Gibbons with any questions.

WCM Wins “Battle of the Experts” in Slip and Fall

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Recently, WCM obtained summary judgment and a full dismissal of all claims against our client in Moran v. Levin, NY County Supreme Court, Index No.: 0151444/2016.  Brian Gibbons and Dana Purcaro prepared the motion, which Dana Purcaro argued before J. Cohen in NY County.

Plaintiff, who was working at our clients’ home as a housekeeper, slipped and fell on an exterior stairwell, and the fall was captured on our clients’ home security camera. Plaintiff sustained a severe fracture in her leg which required surgery and implantation of hardware.

Plaintiff conceded that it was raining at the time of her accident and that she failed to utilize the handrail, despite having knowledge of its presence. All parties conducted a site inspection with experts wherein measurements were taken, including tests to determine the coefficient of friction of the stairs, as they were made of smooth concrete.

Following the site inspection plaintiff exchanged their expert’s report which conceded that the stairs had a high coefficient of friction and that the stairs complied with the Residential Building Code. The expert then opined that despite that fact, the Court should find that the premises did not comply with accepted standards of safety due to the width of the stairwell (approximately 11 feet) and the fact that there was only one handrail. Our expert confirmed that the stairs were compliant with all applicable codes and rejected plaintiff’s claims that any other code should apply to our clients’ single family dwelling.

At oral argument, the Court rejected plaintiff’s expert’s claims that this home should have complied with other building code regulations and any claim that the placement of the handrail was in any way a contributing factor to plaintiff’s accident. Judge  Cohen granted our motion in its entirety and found that there were no questions of fact as to the safety of the stairs, the code compliance of the stairs, or as to whether the stairs were adequately maintained. Judge Cohen pointed to the video of the accident and said that it bolstered our position as it not only showed the stairs to be well maintained but showed plaintiff running down the steps without using the handrail or accounting for the obvious rain on the exterior steps.

This is an exceptional victory as typically a video of an accident is detrimental to a defense and Judge’s often will find questions of fact when there are two conflicting expert reports.   “Battles of Experts” generally refer to testimony before juries.  Here we were able to avoid the expense and exposure of a trial. (To date, no Notice of Appeal has been served.).

 

WCM Wins Summary Judgment on Premises Case in Queens

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This past week, Wade Clark Mulcahy was victorious in its motion for summary judgment, absolving two homeowners of exposure in a sidewalk trip and fall case. Brian Gibbons and Chris Gioia prepared the motion, and Chris argued the motion before Hon. Ernest F. Hart of Queens County Supreme Court.

In, Calle-Gonzalez v. Borukhov, the Court ruled that our clients, homeowners in Queens, were entitled to summary judgment for a trip and fall which occurred on the sidewalk in front of their single family home.  Under New York City Administrative Code’s Section 7-210, liability for sidewalk defects is placed upon owners of the adjacent property.  However, Section 7-210 also provides for an exception of one-two or three family homes.

Judge Hart ruled that we demonstrated that unit was a single family, owner-occupied dwelling.  Additionally, the Court found that the owners had not made negligent repairs, nor had they utilized the sidewalk for a ‘special use’, two exceptions which would deny summary judgment.   Plaintiff’s claims will continue against the City of New York, and will focus on the issue of notice.  But, barring any appellate practice, our clients are out of this case permanently.

The tricky aspect of motions like this one involves plugging up any potential holes that could create a “triable issue of fact,” which could prompt SJ denial.  At argument, Chris Gioia left no doubt that our clients were not liable here, and the Court agreed.  Please email Brian Gibbons with any questions, or contact me on Twitter @bgibbons35.

Sole Proprietorship Companies: The Blurred Lines between Business Entity and Owner (NJ)

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Plaintiff Cesar Asijtuj-Jutzuy is a former construction worker and employee of Bossolina Construction, Inc., appealing from a summary judgment dismissal of his personal injury action alleging injuries he sustained when he fell eleven feet from a scaffolding plank.

In Asijtuj-jutzuy v. Werner Co., plaintiff sued Sikorski Construction, alleging that it was responsible for oversight of the entire project and that it breached its duty to plaintiff by failing to provide a reasonably safe place to work. Although plaintiff also brought product liability claims against the manufacturer, this article will focus on the negligence claims against Sikorski Construction.

The underlying facts pertaining to the accident were undisputed: plaintiff was standing on an aluminum work platform which was positioned at a height of approximately eleven to twelve feet. Plaintiff was in the process of removing stucco with a power grinder, when the grinder suddenly jammed and kicked plaintiff back off the platform causing him to fall and strike his head on the cement pavement below.

There was a dispute whether Sikorski worked on the project as an individual. Sikorski testified that he did not, but the owner of Bossolina Construction testified that Sikorski obtained permits for the project. Further, plaintiff alleged that Sikorski was responsible for running the job and implementing safety measures. Sikorski testified that he had undergone a lumbar fusion the month before plaintiff’s accident and was still recovering during plaintiff’s accident. Sikorski testified that he was unable to participate in the project in any capacity. The trial court had granted summary judgment to Sikorski Construction on the ground that there was no evidence of it having a contract with respect to this project and the lack of evidence that Sikorski was on the project site. In doing so, the trial court noted that Sikorski had not been named as an individual defendant.

The appellate court found that Bossolina did not distinguish between himself as an individual and Bossolina Construction. Sikorski, much in the same way, did not distinguish between himself and his company when providing testimony. For example, when Bossolina testified he subcontracted the job to Sikorski, he did not, individually, have a job to subcontract out.  Thus, when he testified he subcontracted the project to Sikorski, he likely meant Bossolina Construction subcontracted the job, and he may have meant – and a jury could have reasonably inferred – Bossolina Construction subcontracted the project to Sikorski Construction. As such, even if Sikorski himself was not physically at the project site, there was a question as to whether Sikorski Construction had agreements and duties arising from the agreements.

Citing the Burwell v. Hobby Lobby Stores case, in a sole proprietorship, the business and its owner are one and the same. Thus, Sikorski could not avoid liability by using a name for his business when his business was a sole proprietorship. The appellate court held that the trial court should have permitted plaintiff to amend his pleadings to name Sikorski as an individual defendant or in the alternative, should have amended the pleadings itself. The appellate court reversed and remanded the matter for trial, holding that Sikorski and Sikorski Construction were indistinguishable as legal entities. As such, the question of Sikorski’s involvement with the project was a question of fact that should have been determined by the jury.  Thanks to Steve Kim for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter (@bgibbons35) with any questions.

Who’s Gonna Ride Your (Domesticated) Horses (NY)

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In Brinkman v Marshall Field VI, the Appellate Division, Second Department affirmed a lower court ruling granting defendant’s motion for summary judgment.  In Brinkman, plaintiff was allegedly injured while grooming a stallion in the barn at Hidden Brook Farm.  She claimed that while she was grooming, three horses, who had escaped from their paddocks, galloped unaccompanied into the barn, startling the stallion who side-stepped and pinned her against the wall.  She commenced an action based on common-law negligence against the farm.

The Court found that the farm established its prima facie entitlement to judgment as a matter of law because the stallion and escaped horses were domesticated animals and plaintiff failed to allege that any of them had vicious propensities.  New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by domestic animals and an owner can only be held liable if they know or should have known of the animal’s vicious propensities.

The plaintiff tried to claim an exception set forth in Hastings v. Suave which dealt with a farm animal that strays from the place where it is kept onto a public road or other property.  In carving out that exception, the Court of Appeals recognized the unique peril that arises from allowing farm animals to wander off a farm unsupervised and unconfined.  People generally don’t expect a 1500lb cow or 400lb pig or unruly goat to wander freely into traffic or onto a neighbor’s yard mangling people and property.  That exception is inapplicable here as the presence of horses in a barn is not unexpected.

Without the exception, plaintiff was unable to prevail on her claim.  While the rule about domestic animals has been extended past dogs, it is extremely important that vicious propensity be pleaded and established, or the defendants may be able to obtain summary judgment.  Thanks to Mehreen Hayat for her contribution to this post.  Please contact Brian Gibbons by email or on Twitter (bgibbons@35) with any questions.

A “Threshold” Motion and Doctor Affidavit Needs Specifics, even for a De Minimis Injury (NY)

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If you are a Defendant in a motor vehicle injury case, and move for summary judgement on the “threshold”  grounds (that plaintiff did not sustain a “serious injury” under the New York Insurance Law) a proper expert report is critical to make a prima facie showing that the Plaintiff did not sustain a serious injury. Sometimes, defendants learn the hard way.

In Cabrera-Verduzo v. Shortis, a case concerning a chain-reaction, rear-end motor vehicle accident, all the defendants moved for summary judgement claiming that both Plaintiffs did not sustain serious injuries. The courts in New York have been clear that when filing summary judgement motions the defendants bear the burden of showing that the Plaintiff did not sustain a “serious injury” under New York Insurance Law §5120(d). In the case at bar, the court concluded that the defendants failed to make a prima facie showing that both of the Plaintiffs did not sustain a serious injury.

First up was the Plaintiff, Maria Cabrea Verduzo. Specifically, this Plaintiff claimed to have injured her right knee. She claimed in her bill of particulars that she was confined to her home for approximately four months and that during that time period she was totally incapacitated. Cabrera-Verduzo also testified at her deposition that she missed approximately four and a half to five months of work. Dr. David Weissberg, defendants’ examining orthopedist, examined this Plaintiff approximately five years after the accident and did not say that any of his findings were related to the time period immediately after the subject accident.  The court said that the defendants failed to meet their initial burden by failing to negate the issue of fact as to the 90/180 claim. Therefore, the motion was denied.

As for the second Plaintiff, Mr. Montenegro, the court came to the same conclusion. Mr. Montenegro claimed to have injured his right knee and that he suffered appendicitis as a result of the motor vehicle accident. The defendants had two medical experts examine this Plaintiff. Dr. Raymond Shebairo, an orthopedist, did many tests regarding Mr. Montenegro’s right knee, but failed to effectively discuss Plaintiff’s claim of appendicitis. Dr. Ilan Weisberg, a gastroenterologist, concluded that it is “more likely to be coincidental to, rather than caused by the subject accident.” However, he does not back that claim up with any actual evidence. The court stated that this conclusion was extremely speculative. Therefore, they denied this part of the motion as well.

This case illustrates that defendants and their clients should take a second look at their expert medical reports, particularly before moving for SJ on “threshold” grounds. If the reports cannot meet the initial burden, the motion may not be worth the paper its written on.  Thanks to Marc Schauer for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter @bgibbons35 with any questions.

 

 

 

Stop Signs are Self-Explanatory, Unless They Disappear (PA)

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On September 7, 2018, the Superior Court of Pennsylvania reversed an entry of summary judgment in favor of Jeff and Jolie Hine in Estate of Jeff S. Hine v. Pennsy Supply Inc.  The case stems from an automobile accident involving Mr. Hine and Michelle Dulay, in which Dulay drove her vehicle through the intersection of Parkview Circle and North Empire Court in Wilkes-Barre, PA and crashed into Mr. Hine’s car.  Following the accident, the Hine’s filed suit against Dulay and Pennsy Supply Inc. (“Pennsy”) who the Hines claimed had removed a stop sign at the intersection.

Prior to trial, the Hines and Dulay came to an out-of-court settlement and all claims against Dulay were withdrawn.  Subsequently, Pennsy filed a motion for summary judgment claiming that the record was devoid of evidence that it had removed the stop sign which would have potentially prevented Dulay from entering the intersection without stopping.  On June 5, 2017, the trial court granted Pennsy’s motion for summary judgment as it claimed the record was devoid of evidence that Pennsy had removed the stop sign.

The Hines then filed this appeal arguing that there is a genuine issue of material fact that Pennsy was negligent when it removed and then failed to replace the stop sign at the intersection.  First, the court noted that Pennsy was the prime contract for the construction work going on around the intersection and therefore if a stop sign was removed it would be responsible.  Furthermore, part of the project involved installing an ADA compliant ramp at the very spot where the stop sign was located.  This fact was backed up by testimony from Mr. Hine as well as Wilkes-Barre Police Sergeant Thomas Harding.  Finally, Attilio “Butch” Fratti, the Director of Operations for the City of Wilkes-Barre had reviewed a construction “punch list” which was prepared by PennDOT three months after the accident indicated that Pennsy had removed the stop sign.  Fratti indicated that Pennsy had never contacted the City to request removal of the stop sign per City requirements.

The Court noted that regardless of whether a stop sign existed at the intersection, Dulay still had a legal duty to yield the right-of-way to Mr. Hine under Pennsylvania law.  However, the Court felt that the record indicated that Dulay was not aware of her legal obligation to yield the right-of-way to Mr. Hine.  The stop sign at the intersection existed to ensure that drivers, who might not know all Pennsylvania traffic rules, stop at intersections and prevent accidents.  As such, the Court reversed the trial court’s entry of summary judgment.  Thanks ti Garrett Gittler for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter @bgibbons35 with any questions.

Under PA Premises Law, to be an Invitee Requires an Invitation

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The Pennsylvania Superior Court recently affirmed a trial court’s defense verdict after a resident in a townhome community brought an action against the homeowners association after she tripped and fell on branches located on the steps to a common area.

In Hackett v. Indian Kings Residents Association, 2018 PA Super 240, No. 3600 EDA 2017, Hackett appealed the jury verdict that declared IKRA was not negligent following a two-day trial.  Hackett claimed that, in January 2013, she fell on branches that were on the steps of a common area leading to her townhouse in the Indian King residential community, causing her to undergo three surgeries over the next two years.  The jury returned a verdict of “no negligence” on behalf of IKRA.  On appeal, Hackett raised the issue that the trial court erred in charging the jury that she was a licensee over her objection and assertion that she was an invitee with regard to the common area.

The Superior Court began its opinion by explaining the fundamental principle under tort law, that, in order for liability to be imposed upon a defendant, the plaintiff must first establish the presence of a duty incumbent on the defendant.  Pennsylvania, in adopting the Restatement (Second) of Tort’s approach, has established that a landowner’s duty toward a third party is dependent upon whether the third party is a trespasser, licensee or invitee.  Because Hackett was a resident of the residential community, neither party argued that she was a trespasser in this scenario.  Therefore, the court analyzed the difference between the designation as a “licensee” versus a “invitee.”

A licensee is a person who is privileged to enter or remain on the land by virtue of the landowner’s consent – the entrant is there for her own purposes and the landowner has no interest in the third party’s entrance onto the land.  Essentially, a licensee is present on the property by virtue of the permission of the landowner.  An invitee on the other hand, is basically divided into two sub-categories – a business invitee or a public invitee.  A business invitee in one who is invited to enter or remain on the land for a purpose directly or indirectly connected to the business dealings of the landowner.  A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public by the landowner.

Hackett argued that she was an invitee because IKRA’s is property manager who is responsible for keeping the common areas safely maintained.  Thus, her payment of maintenance fees to IKRA rendered her an invitee.

But the Superior Court concluded that Hackett was a licensee when she entered the common area.  First, the court noted that Hackett was not a business invitee who entered the common area for the purpose of conducting business with IKRA.  Second, the court determined that Hackett was not a public invitee and in so doing the court articulated the distinction between permission and invitation which helps to highlight the difference between licensee and invitee.  The court noted that permission is different (and lesser) than invitation in this context – an invitation is conduct which justifies others in believing that the landowner desires the entrant to enter the land, whereas permission is conduct justifying others in believing that the landowner is willing that the entrant may enter the land if the entrant desires to do so.

While the line between invitation and permission may seem like a fine one, the court explained that mere permission is sufficient to make a visitor a licensee, however it is not sufficient to make the visitor an invitee.  The court noted that IKRA granted all tenants permission to enter the common area as they pleased, however nothing in the tenants’ lease agreements could be interpreted as a specific invitation to use the common area.  Furthermore, the court stated that no particular fees or dues were paid by the residents in order to enable them to use the common area. Ultimately, when Hackett fell, she was in the common area because she had longstanding permission by IKRA to come and go as she pleased; but she was not present in the common area by virtue of any invitation or specific purpose connected to IKRA.  Therefore, she was properly designated as a licensee and the trial court verdict was affirmed. Thanks to Greg Herrold for his contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions.

Uber Dodges Lawsuit, For Now (PA)

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In Fusco v. Uber, three days before Christmas, Cabrini College director of public safety Joseph Fusco attended a holiday party in University City. Around 11:00pm he requested an Uber to take him to his home in Cherry Hill, New Jersey. Uber drivers do not know the destination until they pick up the passenger; therefore, it was not until Fusco got inside the vehicle that the driver learned that Fusco’s destination was in New Jersey. The driver refused to take Fusco to the destination and after an exchange of words, the driver physically removed him from the car, assaulted him, and left him unconscious on the sidewalk with multiple broken bones and teeth.

Fusco filed a Complaint against Uber Technologies in the Eastern District of Pennsylvania that included claims for negligent hiring, retention, and supervision related to the assault.  Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania dismissed Fusco’s suit stating that Fusco’s factual pleadings could not raise the inference that Uber Technologies was liable for those claims. Under the theories of negligent hiring, retention, and supervision, a plaintiff must show that the employee’s prior bad acts would have put a reasonable employer on notice of the employee’s propensity to injure others. However, Plaintiff’s Complaint did not allege any instances of past misconduct by the driver, and only generally alleged that the driver was unqualified and dangerous. These allegations were not sufficient to find that the driver was unusually prone to violence, such that an employer would have been dissuaded from hiring him.

However, Judge Goldberg did give Fusco a chance to amend his claims. Judge Goldberg also noted that at oral argument, counsel for both parties advised that, after Fusco filed his Complaint, news outlets reported that the driver had a prior criminal conviction.  But, because Fusco did not allege this in his Complaint, Judge Goldberg deferred his consideration of the driver’s past conviction until Fusco amends his Complaint.  Then, assuming discovery commences, Uber will find itself in a dubious position:  what did Uber know (about the driver) and when did Uber know it?   Thanks to Melisa Buchowiec for her contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions.