Oh Those Summer Nights (NY)

On these cold winter days that melt into darkness in the afternoon, we can only dream of playing a game of catch with a friend in an open grassy area in a park on a summer night. Yet, in that idyllic thought lurks the risks that come with sport.

In Genefar v Great Neck Park District,the plaintiff complained he was injured on such a night.  While playing a game of catch, the plaintiff jumped up and backward for the ball and struck his arm on a corner of a metal sign attached to a light pole that was approximately six feet and seven inches above ground level. Plaintiff subsequently commenced suit for personal injuries against defendant property owner, who moved for summary judgment.

The lower court dismissed the complaint based on the doctrine of primary assumption of risk. While the Appellate Division affirmed the court’s decision, it relied on different grounds. The Court ruled that a landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property. However, an owner has no duty to protect against an open and obvious condition provided that the condition is not inherently dangerous.

The defendant established that the sign on which plaintiff struck his arm was open and obvious, readily observable by plaintiff, known to the plaintiff prior to the accident and, as a matter of law, was not inherently dangerous. Based on those grounds, the appellate court did not address the application of the doctrine of primary assumption of risk.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at .


No Christmas Miracle for Plaintiff, Falling Garland is Not a Foreseeable Risk (NY)

Bah humbug… Christmas shopping is fraught with danger or so alleged a plaintiff who claimed to have been snared by holiday garland.

In Parke v. Dollar Tree, Inc.,  the plaintiff testified that while taking down garland from a display, she felt a snag on the garland and, sensed additional “stuff” starting to fall.  When she started to move her feet to avoid the decorative avalanche, she fell. Plaintiff further testified that she did not trip over anything and was not struck by anything before she fell, nor did she strike anything on the way down as she fell. In opposition to defendant’s motion, plaintiff submitted defendant’s Holiday Sales Planner and Stocking Procedural Manual. She also submitted an affidavit of an expert witness — a retail sales merchandising specialist, consultant and planner — who attested to the proper, correct and safe way to install, stock and display consumer products and merchandise for sale to the public in retail stores.

Nevertheless, the Third Department ultimately reasoned that “foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated”. The Court found that Dollar Tree met its burden in establishing, as a matter of law, that it was not reasonably foreseeable for plaintiff to be injured while taking down garland. As such, the burden shifted to plaintiff to raise a triable issue of fact.

Ultimately, the Court found that plaintiff’s testimony and expert affidavit failed to demonstrate how the location and stocking of the garland presented a foreseeable risk. Therefore, plaintiff failed to raise a triable issue of fact that plaintiff’s injury was reasonably foreseeable. The Supreme Court found that there was “nothing about the nature of packages of garland falling from above that would lead a reasonable person to foresee said garland knocking a person to the ground and/or breaking a person’s wrist.” Finally, the doctrine of res ipsa loquitur did not apply because “the doctrine cannot be used where, as here, the defendant against whom the doctrine is asserted owes no duty in connection with the mechanism that caused the injury”

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at .


UIM Denial Triggers Statute of Limitations (PA)

The Pennsylvania Supreme Court has recently decided that, when it comes to an uninsured motorist claim, the statute of limitations only begins to run upon an alleged breach of a contractual duty.  In Erie Insurance Exchange v. Bristol, a commercial automobile insurer brought declaratory judgment action seeking determination that an uninsured motorist claim filed by an injured employee of the insured was barred by the statute of limitations.

This lawsuit was initiated when Michael Bristol  reported a hit-and-run accident that occurred within the scope of his employment on July 22, 2005.  Bristol was employed by RCC, Inc. as a lineman, and RCC, Inc. was insured through Erie Insurance Exchange.  This policy contained an Uninsured/Underinsured Motorist Coverage Endorsement, which provided coverage of $500,000.00 per accident.  The Endorsement also included an arbitration clause which provided for binding resolution of liability disputes and the amount of damages under the Endorsement, reserving other disputes, including the applicability of any statute of limitations, to the courts.

On June 19, 2007, Bristol sent a letter to Erie regarding his claim.  On July 9, 2007, Erie reserved its rights.  Each party selected arbitrators and Erie obtained a statement under oath from Bristol.  Mire than seven years post accident, in September 2012, the parties exchanged correspondence surrounding Bristol’s unrelated incarceration and the qualified delay this would cause.  On May 29, 2013, Erie filed an action for declaratory judgment stating that Bristol’s claim was now barred by the statute of limitations.  Specifically, Erie claimed that the statute of limitations began to run on the date of the accident when Bristol was unable to identify the vehicle involved in the hit-in-run, thereby qualifying it as an uninsured motorist claim.  Bristol’s position was that Erie’s reservation of rights and agreement to arbitrate precluded application of the statute of limitations because there was no contractual requirement to file a court action.

The Pennsylvania Superior Court held that, for purposes of uninsured motorist claims, the statute of limitation begins to run when a claimant injured in an automobile accident initially learns that the other driver is uninsured.  The Pennsylvania Supreme Court disagreed and found that this conclusion was not based in the pertinent statutory text, prevailing statute of limitations doctrine, or significant public policy concerns.

The Pennsylvania Supreme Court relied on the general rule for computing periods of limitation under Section 5502 of the Judicial Code.  That rule states that “the statute of limitations begins to run at the time when a complete cause or right of action accrues or arises, and only at such a time, that is, as soon as the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement.”  Therefore, the statute of limitations would begin to run when the insurer is alleged to have breached its duty under the insurance contract.

Additionally, the Pennsylvania Supreme Court looked to public policy issues to determine if this circumstance required a special rule for determining when the statute of limitations begins in uninsured motorist cases.  The Court concluded that although uninsured motorist coverage serves the purpose of protecting innocent victims from uninsured motorists, that purpose does not rise to the level of a public policy overriding every other consideration of statutory construction.  Additionally, the Court noted that any concerns about an insured delaying submission of a claim or an insurer delaying action on a claim do not justify departing from breach of contract principles attendant to triggering the statute of limitations.    The Court concluded that the proper circumstance to begin the running of the limitation period is an alleged breach of the insurance contract, which will be occasioned by a denial of a claim or the refusal to arbitrate.

Thanks to Zhanna Dubinsky for her contribution.

For more information, contact Denise Fontana Ricci at .


Hot Soup Was Not Surprisingly Hot (NY)

Most like it hot … soup that is.  To this end, the  New York City Health Code prescribes the range of temperature required for hot soup served at restaurants, i.e. 140 to 165ºF.  But what if someone gets burned on that soup?

In Sekkat v. Huitres NYC, Inc., an infant-plaintiff was burned when her younger brother pushed a toy train into a bowl of soup and caused it to fall from the table at the defendant’s restaurant.  The child’s mother had warned that the soup was hot when it was initially set on the table. They had, admittedly,  left the soup to cool down when the incident occurred.

Both the plaintiffs and defendants’ motions for summary judgment  were denied by the lower court. However, the Appellate Division reversed  in favor of the defendant-restaurant.  The Second Department noted that liability for injuries resulting from hot soup required a showing that the soup was excessively hot in temperature and that, as a result, it was unreasonably dangerous and presented a danger that was not reasonably contemplated.  The Court held that, in the instant matter, the restaurant had presented sufficient proof that its cooks had checked the temperature before serving it and that it was within the temperature required by the NYC Department of Health.  The Court further held that the infant-plaintiff was aware of the possible danger and that the restaurant’s failure to warn the plaintiff of the possible danger was not the proximate cause of this accident.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at .


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

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

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

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

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

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

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

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at .


Note of Issue Received Unless Proven Otherwise (NY)

A note of issue date is one of the most important dates for defendants to monitor in litigation in New York.  In Meisels v Raptis, the Supreme Court, Kings County, denied medical malpractice defendants’ motion to strike plaintiff’s note of issue and extend time for filing summary judgment despite their claim that they had never received it.

The plaintiffs alleged that the defendants failed to timely diagnose a two year old child’s Herpes Encephalitis that caused developmental delays.  Although the court extended the date for filing a note of issue to February 3, 2017, the plaintiff filed on August 22, 2016, along with a certificate of trial readiness.

The defendants disputed receipt of the note of issue and sought to strike it well beyond the twenty days allowed for such a motion.  Significantly, the failure to timely move to strike prohibited the defendants from filing for summary judgment.  Curiously, the defendants did not question the affidavit of service that had been filed with the note.  Instead, they argued that fact discovery had continued and was outstanding even after the filing of the note of issue.  This, they said, proved that there was an incorrect material fact in the certificate of readiness.

The court ruled that the defendants’ motion to strike the note of issue was untimely and found defendants failed to show “unusual or unanticipated circumstances.”  This ruling effectively ended defendants’ right to receive outstanding discovery, placed the matter on the trial calendar, and precluded defendants from moving for summary judgment.

The court set precedent that, if defendants truly believe they did not receive the note of issue, they must attack the affidavit of service.

Thanks to Christopher Gioia for his contribution.

For more information, contact Denise Fontana Ricci at .


Beware: Basketball Is A Contact Sport (NY)

A high school student who opted to play basketball in gym class voluntarily engaged in an activity with awareness of the risks inherent to playing, including the possibility of collision or contact with another participant.  This voluntary assumption of the risk barred a suit for negligence against his high school.

In Hanson v Sewanhaka Central High School District, the plaintiff alleged that he was injured during a basketball game in gym class after he was kicked in the leg by a fellow student. The defendant school district and defendant student both moved for summary judgment, arguing the doctrine of primary assumption of risk, and both motions were granted by the lower court. The plaintiff appealed.

Under the doctrine of primary assumption of risk, 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”. By freely assuming these risks, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from them, if the risks are fully comprehended or perfectly obvious. However, a plaintiff cannot assume the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

The Appellate Division, Second Department, found that the plaintiff opted to play basketball from a number of options. He was aware of the risks inherent to playing, including potential physical contact with other students. Although the plaintiff testified at a hearing on the motion that the other student purposely kicked him, this was neither pled in his complaint nor mentioned in his bill of particulars.  The court disregarded this testimony as a plaintiff cannot raise a new or materially different theory of recovery for the first time in opposition to a motion for summary judgment.

The plaintiff also sought to defeat summary judgment by application of the inherent compulsion doctrine.  However, this doctrine precludes an assumption of the risk defense where the plaintiff’s conduct is not voluntary due to the compulsion of a superior. In essence, plaintiff alleged that the School forced him to participate in basketball. However, plaintiff’s own testimony demonstrated that he elected to play basketball over a variety of other gym activities. The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the moving defendants.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at .


Worker Entitled to Compensation If Pre-Existing Condition Aggravated at Work (PA)

A work related injury is compensable under Pennsylvania workers compensation laws even if it is an aggravation of a pre-existing condition such as osteoarthritis.  In Brand Energy Services, LLC v. Worker’s Compensation Appeal Board , an employer appealed an award by a workers compensation judge arguing that causation had not been established for aggravation of bi-lateral carpal tunnel syndrome, osteoarthritis and other conditions.

The employee, a union carpenter, was employed to build, modify and dismantle scaffolding for the employer’s clients.  His employer was paid by the foot for the scaffolding erected.  The employee had been working days.  When he was transferred to a night shift, his work assignment increased from eight hour shifts to ten to twelve hour shifts.  He worked thirteen days in a row and had only one day off.  Not only was he expected to work longer hours, but to meet the needs of the plant where he was working, they had to erect more scaffolding per shift.  He testified that in an eight hour shift, the workers would assemble 300 leg feet of scaffolding.  In the night shift, he was building between 1000 and 1200 leg feet.

The worker’s hands became swollen under this new work regimen.  He sought treatment for his hands, as they continued to be numb, swollen, and tingly.  His doctor diagnosed work-related bilateral carpal tunnel syndrome, osteoarthritis, and left scapholunate advanced collapse (SLAC) wrist.   When the worker submitted a note from his family practice to his supervisor outlining his diagnoses, he was laid off.

On appeal from the workers compensation tribunal, the Court faced two issues: (1) whether the doctor’s testimony was equivocal as to the causal connection between the work and the work-related aggravation of underlying conditions; and (2) whether the doctor had a sufficient understanding of the work, and consequently, a proper factual foundation for a medical opinion such that his opinion was competent.

In terms of the former question, the court held the causal connection was a question of law and worker’s burden to present unequivocal medical testimony.  At issue was whether the doctor’s use of “probable” with respect to causation of one of three diagnoses rendered the entire opinion insufficient to support any award.  The court disagreed with the employer’s argument in this regard.  It found that the doctor’s testimony as to the aggravation of carpal tunnel syndrome and osteoarthritis was sufficiently supported.  However, because the doctor testified that there was a “probable SLAC wrist,” that diagnosis was insufficiently proven.

In terms of the latter question, the Court considered Pennsylvania case law that held proffered medical opinion can be rendered incompetent if the medical professional does not have a complete grasp of the patient’s work, such as if the medical profession demonstrates a lack of knowledge as to his or her patient’s tasks.  While the Employer argued the doctor did not have a complete grasp of the job duties, the Court rejected its argument because the doctor reviewed his patient’s testimony and took a history from him.  Given this testimony, the Court considered the doctor competent to render an opinion.

Thanks to Lauren Berenbaum for her contribution.

For more information, contact Denise Fontana Ricci at .

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

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

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

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

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

For more information, contact Denise Fontana Ricci at .

When Wrongful Death, Survival, and Sovereign Immunity Acts Collide (PA)

When a claim arises from the death of an individual, wrongful death and survival actions provide complementary damages.  The wrongful death action compensates for losses sustained by living individuals as a result of the decedent’s death.  A survival action allows for compensation as if the decedent had survived.  Wrongful death damages include compensation for the amounts the decedent’s earnings would have contributed to his spouse, parents or child who are entitled to bring suit.   A survival action allows the estate to recover the decedent’s loss of earnings during his life-span less the decedent’s personal expenses.  In addition to these pecuniary losses, survival actions allow for pain and suffering, while wrongful death damages include loss of consortium  such as loss of counseling and household services.

These claims become more complex when the claim is against a public entity.  Pennsylvania has legislation, the Sovereign Immunity Act, that defines when a public body may be sued. Although the sovereign may be sued for wrongful death and survival benefits, the type of recovery that is allowed is limited.  In particular, the statute bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support.

In Ewing v. Commonwealth of Pennsylvania Department of Transportation, the decedent was killed after an automobile accident in which another vehicle lost control on an icy road and collided with decedent’s automobile.  The decedent’s estate brought wrongful death and survival actions against the Department of Transportation, alleging that the death was caused by the Department’s negligence in allowing water to accumulate and freeze on the road.

The Court noted that the Sovereign Immunity Act applied to the wrongful death and survival actions against the Department of Transportation.  Specifically, the Court stated that the damages sought must be authorized by both the Wrongful Death Act and by Section 8528(c) of the Sovereign Immunity Act.  The same holds true for damages sought based upon the Survival Act.  Significantly, the Sovereign Immunity Act more narrowly defines recoverable damages, in particular loss of consortium damages are not allowed.

In analyzing whether the loss of services and support could be recovered from the sovereign , the Court looked to the Pennsylvania Supreme Court’s decision in Department of Public Welfare v. Schultz for guidance.  In Schultz, the Pennsylvania Supreme Court held that loss of consortium damages could not be recovered by a parent or child of the decedent.  The issue presented in Ewing, however, was whether the loss of a decedent’s services and financial contributions can be recovered as another “type of damages recoverable” under Section 8528(c) of the Sovereign Immunity Act.  The analysis turned on the definition of “past and future earnings and earning capacity” as authorized by Section 8528(c) of the Sovereign Immunity Act.

In agreeing with the Department of Transportation, the Court held that the services and financial support a decedent provided a child or parent did not constitute as “earnings” or “earning capacity” of the recipient.  More appropriately, that loss would be characterized as a “loss of support,” which was not listed as one of the types of damages recoverable from a commonwealth agency.  The Court emphasized that the Legislature could have listed “loss of support” as one of the types of damages recoverable from a commonwealth agency, but intentionally omitted such a recovery.  Therefore, the Sovereign Immunity Act bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support.

Thanks to Zhanna Dubinsky for this contribution.

For more information, contact Denise Fontana Ricci at .