WCM Wins Rare Defense Verdict in Hit in the Rear Accident Trial

After a three day trial in Supreme Court, New York County, Wade Clark Mulcahy’s Michael Bono and Dana Purcaro obtain a rare defense verdict on liability in a hit in the rear accident case in Smyth v. Murphy, Index number 157795/2013.

Plaintiff testified to being involved in at least ten on the job accidents spanning over two decades. In each accident, plaintiff injured his cervical and lumbar spine and received medical treatment for those injuries, often filing related lawsuits.

Defendant Murphy testified that on the date of the accident, she tapped Smyth’s sanitation vehicle in the rear while he was stopped at a yellow light on the West Side highway during light snowfall. There was one scratch on Mrs. Murphy’s vehicle and no evidence of any damage to plaintiff’s vehicle. Despite the light impact, plaintiff called an ambulance and was taken to the hospital for treatment of his long standing cervical and lumbar spine injuries.  Sometime later, plaintiff underwent cervical and lumbar surgeries by Dr. Lattuga.

During the trial, the defense raised a number of credibility issues, including the apparent failure of plaintiff to inform his physicians about the number of prior accidents he had been involved in, including multiple accidents close in time to the 2013 accident at issue.  In addition, the defense presented proof that a prior MRI scan was the same as a scan taken shortly after this accident.  After brief deliberations, the jury returned a  verdict in favor of the defendants.  Please write to Mike Bono if you have any questions or wish to discuss this case further.

Frozen Pizza Quest no Excuse of PA Fall

Recently, a Pennsylvania court evaluated a grocery store’s liability for injuries caused by known or obvious conditions. 

In Walker v. Save-a-Lot. Plaintiff was shopping in a grocery store when she tripped and fell on a pallet displaying cases of water in the middle of the frozen food aisle.  Plaintiff walked toward the pallet on her way to the freezer and situated her cart adjacent to the pallet.  After grabbing a frozen pizza, plaintiff stepped away from the freezer and tripped over the pallet.  

Defendant sought summary judgment on the ground that the pallet created a known or obvious condition.  Plaintiff claimed she did not see the pallet as she was focused on finding a frozen pizza.  Surveillance footage showed that the plaintiff walked by one pallet displaying cases of water before she approached a second pallet displaying the same.  

The court turned to prior decisions addressing the duty of care owed to invitees and concluded that it is established Pennsylvania law that a person must look where he is going, further explaining that customers are not relieved of this responsibility even if they are distracted by sales displays.  

The court concluded that the fact that the plaintiff claims she did not see the pallet because she was focused on finding her frozen pizza does not excuse the fact that the pallet was a known or obvious condition that she failed to avoid by the exercise of ordinary care.  

Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information.

In PA, a Conditional Offer Same as a Rejection

In Discover Bank v. Ryan, the defendant filed an emergency motion to enforce a post-trial settlement agreement, claiming that the parties had entered into an agreement to resolve the case for if the defendant withdrew her appeal.

Upon receipt of the settlement agreement, which had been prepared by the plaintiff, the defendant requested three modifications, which included changing her name designation, adding two account numbers and making certain paragraphs of the agreement apply to both plaintiff and defendant.  The plaintiff agreed to one of the requested changes, but refused to comply with the other two requested modifications.  Plaintiff informed defendant that if they did not receive the signed settlement agreement by a certain date, the plaintiff would withdraw the offer of settlement.  Defendant argued in her emergency motion that the plaintiff did not have the right to withdraw the settlement offer that the defendant had previously accepted, because the requested modifications did not prejudice the plaintiff.

The court denied the motion, finding that the defendant never accepted the plaintiff’s initial offer.  The court found that a reply to an offer which purports to accept the offer but instead changes the terms is not an acceptance, but rather, a counteroffer, which had the effect of terminating the original offer.  Under Pennsylvania law, an acceptance must be unconditional and absolute.  As the defendant never unconditionally accepted the plaintiff’s offer, it was terminated, and therefore the  defendant’s emergency motion was denied.

Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information.

Plaintiff Stuffed on Missed Slam Dunk (NY)

In Osmond v. Hofstra University, et. al, plaintiff was part of a slam dunk contest held at the summer basketball camp. She attempted a dunk and came down awkwardly and suffered a serious injury. Plaintiff sued for negligent supervision and defendants moved to dismiss under a theory of assumption of risk. The lower court denied the defendants’ motions and defendants appealed.

The Second Department Appellate Court reversed and found that plaintiff assumed the risk by voluntarily participating in the dunk contest and an injury is possible when attempting to dunk a basketball. Under the doctrine of primary assumption of risk, “[i]f the risks[of a sporting activity are known by or perfectly obvious to a voluntary participant, he or she has consented to them and the defendant has discharged its duty of care by making the conditions as safe as they appear to be.” The decision was reversed and the defendants were granted summary judgment. 

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information.

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

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

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

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

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

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


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

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

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

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

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

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

Release Bars Suit Against Fitness Club (PA)

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

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

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

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

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

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

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

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

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

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

No Additional Insurance Coverage Without Privity Now the NY Standard

When determining an insurer’s obligations to provide insurance coverage to a purported additional insured, courts will scrutinize the precise language of an additional insured endorsement very closely. In insurance disputes involving construction contractors, the insurance policy and not an underlying agreement between the parties will ultimately control.

In the recent decision of Gilbane Building Co./TDX Constr. Corp. v. St. Paul Fire and Marine Ins. Co., which we discussed in Of Interest, the New York Court of Appeals held that where an additional insured endorsement requires a direct contract between the named insured and the party seeking coverage, additional insured coverage will not be afforded to any party not in direct contractual privity with the named insured. We are now seeing the first few cases interpreting Gilbane making their way through the lower courts.

In Turner Constr. Co. v Endurance Am. Specialty Ins. Co.,  the Appellate Division, First Department was faced with interpreting language very similar to the policy in Gilbane. DASNY, the owner of the project, retained Skidmore Owings & Merrill, LLP to provide architectural services. Skidmore contracted with Turner Construction Company for Turner to provide construction management services. DASNY also hired KJC Waterproofing, Inc. for the roofing and exterior waterproofing work. KJC subcontracted the installation of the garden roofing to Plant Fantasies, the underlying plaintiff’s employer. Pursuant to the DASNY-KJC contract, KJC obtained insurance coverage from Endurance along with an excess liability policy from Everest National Insurance Company. Turner and Skidmore commenced a declaratory judgment action against Endurance and Everest, seeking a declaration that Endurance was obligated to defend and indemnify them as additional insureds under the Endurance policy.

The additional insured endorsement in the Endurance policy defined insured as “any person or organization with whom you agreed, because of a written contract or written agreement or permit to provide insurance such as is afforded under this policy, but only with respect to your operations, your work or facilities owned or used by you.”

The First Department relied upon its decision in Gilbane, upheld by the Court of Appeals, in its interpretation of the Endurance additional insured endorsement. In order to obtain additional insured status, Turner and Skidmore were required to have a direct contract with Endurance’s named insured, KJC. Because neither Turner nor Skidmore had such an agreement with KJC, they could not qualify for coverage under the additional insured endorsement. Thus, Endurance was not obligated to defend or indemnify them in the underlying action.

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

No Foul Called Against City for Cracked Basketball Court (NY)

In Philius v. City of New York, plaintiff alleged he was injured while playing basketball on an outdoor basketball court owned by the defendants New York City Housing Authority and the City of New York. Plaintiff tripped on a crack in the surface of the court. NYCHA moved for summary judgment arguing, among other points, that the plaintiff’s action was barred by the doctrine of primary assumption of risk. The Supreme Court denied NYCHA’s motion, and NYCHA appealed.

The Appellate Division, Second Department found that pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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.’ Although cracks on the court are not necessarily commonly appreciated risks, in support of its motion, NYCHA submitted, among other things, a transcript of the plaintiff’s testimony, as well as photographs of the subject court. The plaintiff, who was 19 years old at the time of the accident and an experienced basketball player, testified that he “grew [up] playing on [the subject] court,” and that he was aware of the presence of cracks in the surface of the court prior to his accident. The plaintiff also indicated that he was previously aware of the particular crack over which he tripped.

The Court held NYCHA demonstrated that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from concealed, or unreasonably increased risks, and that the plaintiff assumed the risk of injury by voluntarily participating in a basketball game on the outdoor court despite his knowledge that doing so could bring him into contact with an open and obvious crack in the playing surface.

In opposition, the plaintiff argued that he did not assume the risk of having his foot stuck in a crack when playing basketball.” The plaintiff submitted the affidavit of a licensed professional engineer, who opined that the cracked pavement constituted a longstanding defective condition in a very advanced state of disrepair. In reply, NYCHA argued that the prominent and visible nature of the cracked surface of the basketball court only supports its contention that the plaintiff voluntarily assumed any risk of injury arising from the game. The Second Department found NYCHA’s argument persuasive and overturned the lower court’s decision and granted summary judgment for NYCHA.

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