Author Archives: Michael A. Bono

Speculative Cause of Accident Falls Flat (NY)

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In Gani v Avenue R Sephardic Congregation, the plaintiff allegedly fell down an interior staircase in the defendant’s synagogue. The plaintiff filed a lawsuit in Kings County Supreme Court claiming the defendant’s negligence caused the accident and his personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff was unable to identify the cause of his fall. The Supreme Court granted the motion and the plaintiff appealed.

The Appellate Division’s decision recapped the law as it applies to real property landowners: “In a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.”

However, the Court noted that there is another way to establish summary judgment: “a defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident.” This inability to identify the cause of the fall is fatal because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation.

The Appellate Division’s decision relied upon the plaintiff’s deposition testimony, which established that the plaintiff was unable to identify the cause of his fall. As such, the Appellate Division upheld the summary judgment finding of the trial court.

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

No Liability for Failure to Prepare for Snowstorm (PA)

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In Pennsylvania, property owners’ duty to address ice and snow is delineated in the “hills and ridges” doctrine. The doctrine shields landowners from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. Typically, the doctrine provides a safe harbor after recent snow or ice accumulation. The doctrine’s principle is to preclude liability when general slippery conditions prevail in the community due to the weather as ice and snow is a reality of the climate.

The limits of the hills and ridges doctrine were explored in Collins v. Philadelphia Suburban Development Corporation (“PSDC”). Collins slipped while leaving work and fell on an ice/snow covered sidewalk owned by PSDC and leased to Collins’ employer. That day, a blizzard started at 7 am and continued until about 1 pm. Collins admitted that he walked outside during the blizzard. PSDC filed a motion for summary judgment based on the hills and ridges doctrine, which the trial court granted.

On appeal, Collins tried to convince the Superior Court that PSDC was liable because it did not take any steps before the forecasted storm to mitigate the icy effects. An exception to the hills and ridges doctrine is where the landowner’s neglect caused the icy/snowy condition. Collins argued that PSDC knew the blizzard was coming and failed to pretreat the sidewalk. Therefore, its neglect caused the icy/snowy condition.

The court was unconvinced and held that PSDC’s failure to pretreat the sidewalk did not trigger the exception to the hills and ridges doctrine. The court found that PSDC had no affirmative duty to ensure the removal after the storm, and if the caselaw finds no duty during or after the event, then it makes no sense to impose a duty before the event.

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

$1 Million Jury Award for Leg Injury not Excessive Under New Jersey Law

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In Newton v. Sam’s Club, the New Jersey Appellate Division applied the New Jersey Supreme Court’s recently revised remittitur standard to determine whether a $1,000,000 verdict for plaintiff’s damages shocked the “judicial conscience.”

Generally, remittitur is a court decision that reduces the amount of damages granted by a jury in a civil case. In Cuevas v. Wentworth Group, the New Jersey Supreme Court held that remittitur includes an analysis of the case itself; witness testimony; the nature, extent, and duration of plaintiff’s injuries; and the impact of those injuries on the plaintiff’s life. The standard to determine whether remittitur is appropriate is not whether a damages award shocks the judge’s personal conscience, but whether it shocks the judicial conscience.

In Newton, plaintiff sustained severe lacerations to her left leg, leaving her wound visible but not severed. As a result of the injury, plaintiff walked with a limp and experienced constant pain in her leg. As she continued to experience pain, she stopped going to the gym and her physical activities were severely limited. In addition, plaintiff’s injuries impaired her ability to assist her already immobile husband. Prior to the accident, plaintiff was responsible for the day-to-day activities of her husband such as bathing him and driving.

Defendant argued on appeal that a new trial should be granted because the $1,000,000 verdict shocks the judicial conscience, was against the weight of the evidence, and was a product of sympathy, prejudice, and partiality. Defendant further argued that the trial court erred in denying a remittitur. In support of its arguments, defendant pointed out that the trial judge was inexperienced in personal injury litigation.

The Appellate Division was not persuaded by defendant’s arguments and affirmed the trial court’s denial of a new trial and remittitur. The Appellate Division reasoned that plaintiff sustained disfiguring scarring, numbness, constant pain, and impairment of the use of her leg. Taking into consideration plaintiff’s life expectancy and lifestyle, the court did not find the awarded damages were “so grossly disproportionate to the injuries suffered that it shocks the judicial conscience.” Although the Appellate Division acknowledged that the $1,000,000 verdict was high on the spectrum of damages, this does not mean it was excessive.

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

Court Stops Short of Ruling in Favor of Shortstop (NY)

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In Lerman v. Little League Council of New York City Inc., the 10 year old plaintiff was struck in the face by a baseball and injured during Little League practice. This was plaintiff’s very first practice and his mother told the coach that the child had no experience. The coach proceeded to place the plaintiff at shortstop, and the third batted ball struck plaintiff in the face. Plaintiff’s parents had signed the League’s waiver form.

In opposition to the Little League and the coach’s motion for summary judgment, the plaintiff’s mother claimed that the defendants breached their duty of reasonable care to the child and were negligent in their supervision and coaching by failing to test the child’s skill set before putting him on the field and by placing him at the “highly skilled” shortstop position despite being warned by his mother that he had never played baseball before.

While defendants claimed that plaintiff voluntarily assumed the inherent risks involved in playing baseball, his mother asserted that the defendants created a dangerous condition that caused his injuries by their indifference to his level of skill and experience.

In granting defendants’ motion dismissing the complaint, the New York Supreme Court cited the long line of cases holding that “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.” The court noted that the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport. In contrast, related risks which are commonly encountered or are inherent in a sport, such as being struck by a ball or bat in baseball, are “risks for which participants are legally deemed to have accepted personal responsibility.” The theory of negligent supervision is inapplicable where a plaintiff has assumed the risk.

The Court concluded that plaintiff consented, through his parents, to the possibility of being struck and injured by a baseball during practice, and the coach’s decision to place the plaintiff at shortstop was immaterial.

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

Second Circuit Rules Discrimination Based on Sexual Orientation Violates Federal Law (NY)

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On Monday, February 27, 2018, in Zarda v. Altitude Express, the Second Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is against federal law as unlawful discrimination, subsumed under discrimination on the basis of sex, as defined by the Civil Rights Act of 1964. The Second Circuit, which covers New York, Connecticut, and Vermont, joins the Sixth Circuit in holding that gay employees may not be discriminated against on the basis of sexual orientation.

This case arises out of a claim of unlawful termination – Zarda claimed he was fired because he was gay. This en banc decision overruled a previous Second Circuit decision which held that, while sexual orientation discrimination should be outlawed as a policy matter, the plain reading of the statute did not encompass sexual orientation. Here, however, the Court determined (in part) that the associational claim. (i.e. that Zarda was fired because his boyfriend was gay) was enough to determine that Zarda was fired because of his sex.  In other words, if Zarda’s significant other were of the opposite gender, he would not have been fired.

This 10-3 decision is noteworthy, in part, as two different government agencies appeared on opposite sides of the case. The Equal Employment Opportunity Commission (EEOC) supported Zarda and argued that the Civil Rights Act of 1964 outlawed discrimination on the basis of sexual orientation whereas the Department of Justice, in a reversal of the Obama Administration’s position, argued that sexual orientation discrimination was not covered under the aegis of the Civil Rights Act of 1964. This is the third circuit court to rule on this question in the last 12 months – and the results have causes a circuit split, which raises the specter of a possible Supreme Court showdown.

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

Heads Up: Lacrosse Player Injured During Drill (NY)

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In Tauro v. Gait and Syracuse University, Plaintiff, a varsity womens’ lacrosse player at Syracuse University, was struck in the head with a lacrosse ball thrown by her coach , allegedly negligently.  Plaintiff was injured during a ground ball drill, and plaintiff said she was unprepared to receive the hard, overhand pass that struck her in the head.

Defendants moved to dismiss the complaint on the grounds that a waiver signed by plaintiff established a complete defense to the allegations, and that the complaint failed to state a cause of action because plaintiff assumed the risk of injury.

In the waiver, plaintiff agreed that she was “fully aware … that … participation [in lacrosse] involves risk of injury ….” She further acknowledged in the waiver that she accepted, and assumed all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others.

The trial court denied the summary judgment motion. The Appellate Division, Fourth Department, upheld the lower court’s decision because they ruled the defendant’s actions did not fall within the assumption of the risk doctrine for sports. The court held that defendant’s actions were totally inconsistent with the drill and as such, throwing the ball toward her head was grossly negligent and extremely reckless.  The  conditions caused by the defendants’ negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the activity. As such, the waiver signed by the plaintiff was not valid due to the gross negligence of the coach’s action.

Syracuse University’s Women’s Lacrosse Team is nationally ranked. Gary Gait, the defendant, is still the coach of the team.

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

New York’s Highest Court Rules Private Facebook Posts Are Discoverable

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WCM Partners Michael Bono and Brian Gibbons and associate Christopher Soverow have obtained a ruling from the New York Court of Appeals holding that social media records, such as Facebook posts, are not subject to a heightened standard of discovery, and that instead the traditionally broad rules of New York apply.

In Forman v Henkin, the plaintiff allegedly fell from a horse due to the negligence of the defendant.  As a result of the fall, plaintiff claimed she suffered various injuries, including traumatic brain injury, which resulted in cognitive impairment, emotional damages, and impairment of her ability to socialize or engage in accustomed recreational activities.  Among the cognitive effects, the plaintiff alleged she had difficulty reading, using a computer, or composing messages.  With respect to Facebook, the plaintiff posted “a lot” prior to the accident, but could not testify as to her post-accident Facebook usage and ultimately deactivated her account some six months later.

The trial court granted WCM’s motion for disclosure of Facebook records, but limited such disclosure to all non-romantic post-accident Facebook photos, and information about the date, time, and amount of characters of any Facebook post made after the accident.  On appeal, the First Department reversed and held that under the current standard applying to Facebook disclosure, the defendant was unable to establish that there was information on the public section of the plaintiff’s Facebook account that contradicted her claims, and as such, defendant was not entitled to access plaintiff’s private Facebook account.

Due to a lengthy two justice dissent, WCM was awarded leave to appeal to the Court of Appeals.  The Court of Appeals rejected the heightened standard set by the First Department, holding “[w]hile Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”  The Court reasoned litigants should not be arbitrarily limited by the account holder’s privacy settings, while on the other hand, also recognizing the mere possession of a Facebook account does not render all contents subject to discovery.

Rather than embrace a heightened standard or a “one-size-fits-all rule,” the Court provided three broad guidelines to lower courts:  (1) consider whether relevant material is likely to be found given the nature of the claims made; (2) balance utility of the records against “any specific ‘privacy’ or other concerns raised by the account holder; and (3) evaluate whether temporal limits are appropriate.  With regard to sensitive or embarrassing information, the Court observed the party’s remedy lies in moving for a protective order under CPLR § 3103(a).

Citing to privacy concerns, however, is not an automatic restriction on disclosure.  Although the Court declined to rule on the controversial question of whether there is any privacy expectation for social media posts, the Court held relevancy trumps privacy, citing the ubiquitous example of disclosure of confidential medical records in personal injury cases.  Thus, “[f]or purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

It will be interesting to see how courts apply this ruling in the future. Of significance, here the Court focused on plaintiff’s prior usage of Facebook, and how post-accident Facebook activity could specifically demonstrate or undercut her claimed injuries, such as cognitive impairment and diminished enjoyment of life.  We would expect that similar connections will need to be established in order to trigger disclosure of social media records in future cases, and it will be interesting to see how the standard develops going forward.

Thanks to Chris Soverow for his contribution to this post and please write to Mike Bono for more information.

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

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

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

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

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

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

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

Philly Once Again a Judicial “Hellhole”

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

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

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

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

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

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

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

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

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

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

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

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