Author Archives: Michael A. Bono

Gym Member Tries to Race Past Waiver (PA)

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Recently, in Vinson v. Fitness International LLC., a Pennsylvania court evaluated whether release and waiver language found in a membership agreement shielded a fitness center from liability when a member slipped and fell at the fitness center.

Plaintiff fell over a wet and worn floor mat at was injured. Prior to joining, plaintiff signed a membership agreement that stated that a member acknowledges that they gave up any claim or demand due to injury, whether by active or passive negligence on the part of the fitness center. The notice introducing the release was in bold and capital print.

Defendant sought summary judgment arguing: (1) Plaintiff could not demonstrate that Defendants created or had notice of the condition; (2) Plaintiff identified no expert and expert testimony was required for Plaintiff to meet her burden; and (3) upon signing the membership agreement and joining the fitness center, Plaintiff executed a valid waiver of all future claims of negligence.

In response to this argument, Plaintiff alleged that the waiver was void as against public policy. The court turned to prior decisions addressing the validity of a waiver clauses, namely Evans v. Fitness & Sports Clubs, LLC. In that case, the court determined that a waiver of liability only violates public policy if it involves a matter of interest to the public or the state, including matters involving an employer-employee relationship, public service, public utilities, common carriers, and hospitals.

In the Evan case, the court determined that the agreement at issue in that case related solely to the private affairs of those parties and did not affect a matter of interest to the public or the state, and therefore did not contravene public policy. After reviewing the law and applying the facts at hand, the Vinson court decided the waiver clause was identical to clauses that the court previously ruled on, and found the waiver in this case to be valid and enforceable. The court granted summary judgment based solely upon Defendant’s claim that Plaintiff executed a valid waiver of all future claims of negligence when she signed the membership agreement and joined the club.

Thanks to Chelsea Rendelman for her contribution to this post and please write to Michael Bono with any questions.

Injured Rock Climber Scales Past Summary Judgment Motion (NY)

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In Lee v. Brooklyn Boulders, LLC, the plaintiff alleged she was injured at defendant’s indoor rock climbing facility when her foot landed in a gap between two safety mats. Defendant moved for summary judgment under the theory of assumption of risk; however, the lower court denied the motion and defendant appealed.

The Appellate Division, Second Department considered defendant’s assumption of risk theory, namely that by engaging in a sport or recreational activity, participants consent to the commonly appreciates risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. For example, those who engage in rock climbing can expect to fall awkwardly and injure themselves.

But the Second Department rejected defendant’s argument and found a question of fact. The fact that there was a gap in the mats where plaintiff fell constituted a concealed risk and moreover, there was a question of fact whether plaintiff’s injury a result of the generally accepted assumption of the risk.

Defendant further argued plaintiff signed a waiver that would release the defendant from any liability. However, the Second Department cited to General Obligations Law 5-326 that exempts any agreement on liability with pools, gyms, and places of public amusement or recreation. The legislature enacted GOL 5-326 for public policy reasons as the state did not want businesses to avoid liability by having their customers sign waivers. A such, the waiver signed by the plaintiff in this action was ruled to be void and unenforceable.

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

Statue of Limitations not Tolled by Defendant’s Promise to Take Care of Violations (NY)

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In Huss v. Rucci Oil Company, the Appellate Division, Second Department, discussed the respective burdens of proof based on a defense involving the statute of limitations, which is then countered by a plaintiff’s claim that equitable estoppel failed to toll the statute.

In this case, the plaintiff brought suit for causes of action sounding in breach of contract and negligence based on defendant’s failure to obtain the necessary permits in its installation of a fuel storage tank at plaintiff’s premises. Defendant moved to dismiss as the June 11, 2015, action was time barred given the accrual of both the breach of contract and the negligence claims on December 19, 2008 when defendant installed the fuel tank.

The lower court denied defendant’s motion as plaintiff had raised the issue of whether the doctrine of equitable estoppel was applicable which would constitute a toll of the limitations period for each cause of action and the defendant has not met its burden in establishing the actual accrual of the action.

Typically, the defendant bears the initial burden of establishing that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable. Here, the Appellate Division found that defendant satisfied its initial burden. The burden then shifted to plaintiff to establish that a subsequent specific action by the defendant induced the plaintiff to delay timely bringing suit due to plaintiff’s reliance on the defendant’s misrepresentation.

On these facts, when the first of three violations for failure to obtain necessary permits was issued to the defendant in October 2009, defendant’s service manager informed plaintiff that defendant would take care of that violation. Plaintiff claimed they relied on this representation and that he was unaware that defendant had not in fact cured the violation until a subsequent violation had been issued in July 2013, thus allegedly justifying plaintiff’s delay up until June 2015 in commencing the action.

However, the Appellate Division noted that equitable estoppel will not toll a statute of limitations where a plaintiff possesses timely knowledge sufficient to place a plaintiff under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable statute of limitations. Where the doctrine of equitable estoppel applies, the burden is on the plaintiff to establish that due diligence was exercised in commencing an action within a reasonable time after the facts giving rise to the estoppel ceased to be operational. The court found that plaintiff did not demonstrate the necessary due diligence because plaintiff could have commenced an action within the more than three-and-one-half years remaining on the six-year breach of contract cause of action and the four months remaining on the three-year negligence statute of limitations when the second violation was issued in August 2011. This violation served to provide plaintiff with timely knowledge of the defendant’s failure to cure the initial violation. Thus, the Appellate Division granted defendant’s motion to dismiss.

Thanks to Sara Matscfhke for her contribution to this post and please write to Mike Bono for more information.

PA Superior Court Applies Fair Share Act to Strict Liability Action

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The Pennsylvania Fair Share Act, enacted in 2011, regulates the apportionment of jury verdict awards for liable parties. The Fair Share Act mandates that all defendants are responsible for the share of liability apportioned to them, with the exception that a defendant could be liable for the entire award if found more than 60% liable. In plain English, any defendant with 60% or less allocated liability in a case involving the Fair Share Act is only responsible for its own culpability and cannot be made to satisfy the entire judgement if a portion of the judgment is, for whatever reason, not collectable.

The Fair Share Act unquestionably includes negligence verdict awards but the Pennsylvania Supreme Court and Pennsylvania Appellate Courts , until recently, had yet to weigh in regarding the applicability of the Fair Share Act for strict liability cases sounding in tort actions.

In Roverano v. John Crane Inc, the Superior Court of Pennsylvania dealt with the Fair Share Act within the context of a strict liability asbestos action where plaintiff claimed he sustained lung cancer as a result of exposure to asbestos.  The trial court had decided that the jury could not apportion liability because the case involved strict liability for asbestos exposure.

The Superior Court held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors. The Court held that was mandated per the legislative intent underlying the enactment of the Fair Share Act. Additionally, the Court held that the clause in the applicable statute “including actions for strict liability” is revealing. Finally, the Court found legislative history instructive as older versions of the bill included “causal negligence” but were replaced in the enacted statute with “liability”, thus allowing an inference of greater inclusion of possible actions.

The Superior Court’s decision means that a “fact-finder [should allocate] liability among joint tortfeasors in all types of cases, including strict liability cases”. The Court specifically declined to weigh in how exactly to allocate liability, but that the liability allocation should not be done on a per capita basis, Revealingly, the Superior Court did note that the jury should consider evidence of any previous settlements with released defendants as part of its liability determination.

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

WCM Argues Before NY Court of Appeals in Facebook Disclosure Dispute

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On January 2, 2018, WCM partner Michael Bono appeared before New York’s highest court to challenge the standard for the production of Facebook information.

In Forman v. Henkin, plaintiff alleges she sustained a traumatic brain injury when she fell from a horse.  As a consequence of this injury, plaintiff alleges that she can no longer participate in many of the actives she previously enjoyed; that she could barely read or compose texts; that writing simple messages on the computer takes hours; that she couldn’t handle using the computer for more than 10 minutes without harming herself; and that her social network went from huge to nothing.

When questioned at her deposition, plaintiff testified that she posted frequently to Facebook before the accident, but was either unable or unwilling to testify about her post-accident Facebook practices, and her account was deactivated shortly after filing the lawsuit.

The defense made a demand to access plaintiff’s Facebook account to challenge her claims, and the trial court held that plaintiff was required to disclose all non-romantic photographs from her private Facebook account and to provide an authorization for Facebook to disclose the number of posts plaintiff made post-accident and the text count of those posts.

Plaintiff appealed, and the First Department held disclosure was not required because the defendant had not met the factual predicate required by prior courts.  Namely, defendant failed to show that there were relevant materials on plaintiff’s public Facebook page in order to establish the demand for records from the private account was reasonably calculated to lead to the discovery of information bearing on the claims.

On appeal, plaintiff has argued this standard is warranted in order to protect privacy and to prevent “fishing expeditions” in all cases where litigants have Facebook accounts.  The defense argued there is no reasonable expectation of privacy in social media accounts where the purpose is to share one’s thoughts and photographs which can be published or disclosed unconditionally by Facebook “friends.”   In addition, the current enhanced standard is not required for any other form of discovery, and disclosure should be warranted where targeted demands are made against specific claims within the context of the litigant’s Facebook practices.

A decision should be published within the next 30-60 days, and we will continue to follow the story on Of Interest.  Please write to Mike Bono for more information.

Bus Driver Not Liable For Rowdy Passengers (NJ)

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In Dawkins v. One Bus, the New Jersey Appellate Division considered whether expert testimony was required for a plaintiff to pursue claims against a bus company for the driver’s failure to contact her dispatcher when rowdy teens boarded the bus.

Plaintiff was riding in a bus operated by defendant when four teenagers boarded the same bus. At the bus stop, one teenager boarded at the front of the bus, while the remaining three teenagers boarded at the bus’s rear door without paying their fares. According to plaintiff, the teenagers “were standing in the aisle of the bus . . . being rude to other passengers [and] . . . talking bad about some passengers.” The bus driver informed the teenagers entering at the rear doors that they would have to board via the front entrance and pay their fares. However, the teens refused and remained on the bus. As plaintiff was exiting at the bus’s rear doors, one of the teenagers kicked plaintiff in the back, causing her to slide down the rear steps of the bus. Another teenager also threw a bottle of bleach at plaintiff’s face.

Plaintiff filed suit, alleging her injuries occurred as a result of the defendant bus company’s negligence. Plaintiff served a liability expert report, who opined that: (1) the driver should have immediately contacted the dispatcher when the teens boarded the bus and failed to pay their fare; and (2) the driver should have contacted the dispatcher when it was obvious that the teens were harassing other passengers.

At the conclusion of discovery, the trial court granted defendant’s motion for summary judgment, finding no link to demonstrate that if the driver had contacted the dispatcher, the incident could have been prevented. The trial judge also found plaintiff’s expert unqualified to render his opinions since he lacked a foundation based on any objective standard.

On appeal, the Appellate Division affirmed the trial court’s decision and agreed that plaintiff failed to demonstrate by competent evidence that defendant owed her a duty, that there was a breach of that duty, and that her injuries were caused by defendant’s breach. Specifically, the Appellate Division reasoned that there was no evidence that the bus driver was aware of any threats to the passengers. Under a totality of circumstances analysis, there was no evidence that any foreseeable harm would come to the passengers, let alone that a passenger would be kicked and then assaulted with bleach.

Without any information regarding the danger to the passengers, there were no reasonable steps the driver could have taken to protect plaintiff. Lastly, the Appellate Division found that plaintiff’s expert report and testimony failed to support that the generally accepted standard is for a bus driver under similar circumstances is to contact the dispatcher.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Court Tackles Plaintiff’s Touch Football Lawsuit (NY)

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In E.B. v. Camp Achem, a 15 year old plaintiff was injured while at defendant’s summer camp during a game of touch football. Plaintiff allegedly ran into a metal bench that was on the field near the area the campers were playing football. The Supreme Court denied defendant’s motion for summary judgment and the defendant’s appealed.

The Appellate Division, Second Department overturned the lower court’s decision and granted summary judgment to the defendant because of the doctrine of primary assumption of risk: “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.”

The defendants cited plaintiff’s deposition testimony where he said there was nothing marking the area where the benches were located as the end zone, but if the ball was caught in the vicinity of the bench, the campers would consider that a touchdown. Since the plaintiff, who had been playing football on this field for more than an hour when the accident occurred, was aware of that condition and voluntarily chose to play on the field, he assumed the risk of injury of colliding into one of the benches.

Furthermore, the court determined the bench was an open and obvious condition as it was clearly visible hazard. Plaintiff also testified that he flipped over one of the benches as he was running for a pass and that, prior to turning to catch the ball, he had run the full length of the field looking ahead toward the benches.

Due to the plaintiff voluntarily playing football and being aware of his surroundings for over an hour, the Second Department agreed that plaintiff assumed the risk persuasive and granted defendant’s motion for summary judgment.

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

Vicarious Liability Raised in Hospital Fall (PA)

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In Hodge v. Aramark, LLC, the plaintiff, an operating room nurse at Holy Redeemer Hospital, was working after hours on an on-call basis when she entered sub-sterile scrub room to retrieve supplies for the next surgery. As she walked into the room, the plaintiff’s feet went out from under her, sending her head backward into a tiled wall. Just as she started to slip, the plaintiff heard a voice yell, “watch, the floor is wet.” It turned out that the voice belonged to a custodian who had just mopped the floor. Due to the fall, the plaintiff suffered head and back injuries that rendered her unable to return to work.

Plaintiff sued Aramark, alleging that it was contractually responsible to Holy Redeemer Hospital for housekeeping services, including the cleaning, mopping and maintenance of floor surfaces and the supervision of those activities. Aramark moved for summary judgment, arguing that plaintiff had failed to demonstrate that Aramark had breached its limited contractual consulting duty, that it had any actual or constructive notice of a dangerous condition that caused the accident, or that it was the proximate cause of damages to plaintiff. Aramark claimed that it did not contract to provide housekeeping services such as cleaning and mopping, which were duties and responsibilities performed by Holy Redeemer employees, and argued that it was the duty of the possessor of land, i.e. Holy Redeemer, to protect the plaintiff and others from dangerous conditions on the property.

In opposition to the motion for summary judgment, plaintiff argued that the it was the fault of the custodian, who worked for Aramark, for failing to place warning signs near the wet floor. Plaintiff further contended that Aramark had supervisory control over the custodian, determined what equipment and procedures he was to use, implemented safety procedures and reviewed his performance. The trial court granted summary judgment in favor of Aramark, finding that the custodian was not a “borrowed servant” of Aramark, and that plaintiff failed to proffer evidence that Aramark was negligent in its training of custodial employees regarding wet floor safety.

On appeal, the Superior Court reversed the trial court’s granting of summary judgment and remanded the case. The Court found that Holy Redeemer entered into a contract with Aramark that included regular maintenance of the floors in the area where the plaintiff slipped and fell. Aramark trained and managed the employees that Aramark deemed reasonably necessary to provide efficient management services. Although these employees were employees of Holy Redeemer, the right to control the manner of mopping the floors rested with the custodian’s supervisor, who was an Aramark employee. The Court, viewing the evidence in the light most favorable to the plaintiff, found that a reasonable juror could conclude that Aramark controlled the daily performance of the custodians’ duties. Thus, summary judgment was reversed, and the case was remanded back to the trial court for further proceedings.

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

Worker Denied UIM Benefits Under Regular Use Exception (PA)

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In Reeves v. The Travelers Co. the United States District Court for the Eastern District of Pennsylvania evaluated whether the “regular use exception” applied. The regular use exception excludes coverage for bodily injuries sustained while occupying or when struck by any motor vehicle a person owns or that is furnished or available for regular use, but that vehicle is not insured under the same policy.

Plaintiff was injured when he was hit by another driver as he was driving his employer’s truck as he regularly did to a work site. After settling a personal injury claim against the other driver, he sought to claim underinsured motorist benefits from his mother’s personal insurer, Travelers. Travelers denied coverage to Plaintiff, invoking the regular use exception. Plaintiff filed suit alleging breach of contract and bad faith in handling his claim and Travelers filed a motion for summary judgment.

In Plaintiff’s opposition, he argued that the regular use exception should not apply in his case because he performed his core duties outside of the truck in which he was riding and was only allowed to drive three out of the seventeen employer’s vehicles. The Court determined that the “regular use exception” was often applied where an insured was traveling to a job site where work would be performed outside of the vehicle, as well as to passengers as well as drivers of non-owned vehicles.

The Court ruled that the terms of the policy were valid, enforceable, and unambiguous; and therefore, found that Travelers properly denied coverage for Plaintiff’s accident and was not in breach of contract. The Court also ruled that there was no basis for finding that Travelers acted in bad faith as it investigated and denied Plaintiff’s claim on the basis of a reasonable reading of the Policy and applicable law within four weeks of being notified of the claim.

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

No Foul: Plaintiff Assumed the Risk of Playing Basketball (NY)

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In Hanson v. Sewanhaka, et. al, the plaintiff allegedly was injured during a basketball game in a gym class at Elmont Memorial High School when he was kicked in the leg by another student, the defendant Malik Freeman. The plaintiff sued the other student and the Sewanhaka Central High School District. Both defendants moved for summary judgment and the Supreme Court granted both motions.

On appeal, the defendants cited to the doctrine of assumption of risk, which holds that when a person consents to the commonly associated risks inherent in the sport and freely assumes a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk. Here, a leg injury caused by a collision between two players is certainly a commonly associated risk while playing basketball.

In his brief, plaintiff alleged that Freeman kicked plaintiff intentionally; however, in his complaint the plaintiff had not asserted a cause of action for an intentional tort, and neither the second amended complaint nor the bills of particulars alleged intentional conduct. The court held that a plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars. Therefore, since the defendants established prima facie proof that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants, the Second Department did not find the plaintiff’s argument persuasive.

The Second Department also held because the plaintiff testified he chose to play basketball from a number of options, the inherent compulsion doctrine was inapplicable. Voluntary participants in sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of nature of sport or activity generally and flow from such participation; however, the defense is not applicable if the participant is forced to compete or take part in the activity. Since, the plaintiff had options as to which sport to play, he was not forced to participate in this activity; therefore, the Second Department denied that argument and affirmed the Supreme Court’s decision granting summary judgment to both defendants.

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