Author Archives: Michael A. Bono

Pirelli Prevails Using Plaintiff’s Conduct in PA Products Matter

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In Pennsylvania strict products liability cases, defendants are not permitted to introduce evidence of a plaintiff’s negligence. To prove a strict-liability cause of action, the plaintiff must prove: (a) the product was defective, (b) that it was defective when it left the defendant’s hands, and (c) that the defect caused harm—a plaintiff’s negligence is not relevant to a product defect. However, a plaintiff’s conduct may be offered by the defense to establish that an accident was solely the result of the user’s conduct, and not related to the product defect. This evidence proves causation and not negligence.

The thin line between presenting evidence of plaintiff’s conduct to prove negligence or to rebut the element of causation was at the center of Anderson v. Pirelli Tire, LLC. In Anderson, the plaintiff’s wife died in a motorcycle accident when the tire blew out. Pirelli Tire, LLC manufactured the motorcycle’s tire and plaintiff asserted a strict liability claim arguing that the tire had a manufacturing defect. Crucially, plaintiff argued that he noticed a “blemish” on the tire on the day of the accident; plaintiff’s theory was that a foreign object got inside the tire during the manufacturing process, and that the tire left Pirelli’s plant with the defect. Pirelli argued that plaintiff was at fault because the tire was under-inflated and overloaded resulting in over-deflection, which caused the accident.

The conduct at issue were the steps taken by the plaintiff to ensure their safety on the motorcycle, the air pressure of the tire, and the weight carried on the motorcycle at the time of the trip. The plaintiff argued this was inadmissible because it was evidence of the plaintiff’s negligence, but the court permitted the evidence on the theory that it went to impeach the plaintiff’s testimony and that it went to causation. First, in respect to impeachment, the plaintiff testified that he took safety courses and that he reviewed a checklist before riding the motorcycle. Pirelli argued that given that training, the plaintiff would have taken the tire to the shop if he in fact noticed a “blemish.” Second, in respect of causation, Pirelli argued that plaintiff’s failure to inflate the tire caused the blow out, not a defective tire.

On appeal, the Superior Court upheld the trial court’s ruling since Pirelli offered the evidence properly—only to prove causation and not negligence. The court also relied on the trial court’s jury instructions, which highlighted that the jury could only consider the evidence for the purposes of impeachment and causation.

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

Yankees Safe in Foul Ball Accident (NY)

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Yankees fans will recall a scary incident in late September where a young child was struck by a foul ball at Yankee Stadium.  Although there has been no word whether the family will sue the Yankees, a recent appellate decision may impact the issue.

In Zlotnick v. New York Yankees Partnership, plaintiff brought a personal injury action against the Yankees for injuries sustained when he was struck in the eye by a foul ball as he was sitting in his seat halfway down the first-base line, a few rows from the field. The Supreme Court granted the Yankees’ motion for summary judgment and plaintiff appealed.

The First Department upheld the lower court’s decision and ruled the Yankees did not breach a duty of care, since the evidence showed that appropriate netting was erected behind home plate (which is essentially the limit of what a stadium is required to do to meet the duty of “reasonable care”) and there was no evidence indicating that there was a lack of available seating in this protected area.

The Court rejected plaintiff’s argument that the defendants’ conduct enhanced the risks normally attendant to the game of baseball because the game was played in  rainy weather, and that the Yankees did not enforce the stadium’s policy against the use of umbrellas that obstruct the ability of other patrons to view the game, because rainy weather and umbrellas are not uncommon at baseball games.

In addition, the Court pointed to the warnings about foul balls on the back of plaintiff’s ticket, on the back of the seats, as well as those regularly made over the public address system, which called upon plaintiff to request a change of seating if plaintiff was worried about being struck by a foul ball.

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

OSHA Violation not Applicable to Produce Market Forklift Mishap (PA)

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In Pennsylvania, in determining whether a duty exists in a negligence action, a court may look to a “legislative enactment or an administrative regulation” for the standard of conduct of a reasonable person. To that end, Pennsylvania courts sometimes rely on regulations by the Occupational Safety and Health Administration (“OSHA”), which is part of the US Department of Labor, to determine whether an employer has a duty in a negligence claim—after all, part of its mission is to assure safe working conditions by setting and enforcing standards.

The question in Kovacevich v Regional Produce Cooperative Corporation was whether a policy in OSHA’s Field Inspection Reference Manual constituted an “administrative regulation,” thereby triggering a duty of care on defendant Regional Produce Cooperative Corporation (“RPCC”). Defendant RPCC is a management company that operated a wholesale produce market. Plaintiff was a tenant leasing space in the market. In February 2013, one of plaintiff’s co-workers drove a pallet jack full of fruit “forks first” into plaintiff’s back, causing serious injuries.

The plaintiff relied on an OSHA regulation that provides that an employer must train and certify operators of powered industrial trucks, such as forklifts. Although RPCC did not employ the forklift operator, plaintiff argued that the market was a multi-employer worksite; per OSHA policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard if they are a “controlling employer.” According to plaintiff’s theory, since RPCC owned the market where industrial trucks operate, it had a duty to ensure operators were trained and certified.

At the close of trial, the judge entered a nonsuit in favor of defendant RPCC, finding that a jury could not reasonably hold RPCC liable on its OSHA-based theory of premise liability. On appeal, the Superior Court affirmed the trial court’s ruling. The Superior Court relied on Supreme Court precedent which distinguishes between administrative regulations (which set standards of care) and guidance documents (which describe enforcement policies). The Superior Court deemed the “controlling employer” policy was not a regulation but an OSHA compliance directive and the directive’s intent was to guide OSHA regulators in dealing with multi-employer worksites by giving them the power to cite numerous employers for a violation if they have some level of control or responsibility over the worksite.

Historically, courts have only applied the “controlling employer” directive to construction sites, where there are numerous contractors and subcontractors and here the court was not persuaded to extend the application to a produce market.

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

Expert Needed to Explain Dangerous Mannequin Placement (NJ)

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In Reiger v. Ann, Inc., the New Jersey Appellate Division faced the strange question as to whether expert testimony was required for plaintiff to pursue claims against a defendant store owner for its placement of a mannequin platform display near a mirror.

Plaintiff was shopping in defendant’s clothing store and tried on a scarf in the dressing area.  As plaintiff was backing away from a mirror, her heel hit a mannequin platform and she tripped over the platform, causing a mannequin on the platform to fall over plaintiff, injuring her shoulder and elbow.  Plaintiff testified that she did not notice the platform display when she entered the dressing area.

Defendant retained an engineering expert who opined that plaintiff’s accident was caused by her failure to maintain a proper lookout in the direction that she was moving before she fell.  Defendant’s expert also found that the aisle between the mirror and the platform exceeded the applicable building codes, and that plaintiff’s accident was not caused by a defective condition.  Although plaintiff retained an engineering expert who conducted a site inspection, plaintiff failed to serve an expert report during discovery.

The trial court granted defendant’s motion for summary judgment, finding that plaintiff failed to demonstrate that the platform’s placement breached a standard of care and constituted a dangerous condition.  Specifically, the trial court ruled that plaintiff required (and lacked) expert testimony to establish that there was insufficient space between the mirror and the mannequin platform.

On appeal, plaintiff argued that a liability expert was not required to help a jury decide whether defendant breached a duty of care because her injuries were a foreseeable result of defendant’s placement of the mannequin platform across from the mirror.

The Appellate Division affirmed the trial court’s decision and agreed that plaintiff needed an expert to explain how the placement of the mannequin platform constituted a dangerous condition because “the customs and standards” for retail store displays and safe clearance conditions are not part of a jury’s common knowledge.  The Appellate Division further reasoned that it was undisputed that defendant did not violate any building codes, and the platform was neither camouflaged nor protruding into the access way.

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

Jury Finds Against Building Owner in 5 Pointz VARA Case

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5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals.  The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects.

But eventually Wolfkoff decided to sell the warehouse to housing developers.  The artists filed suit under Visual Artists Rights Act (VARA) in Cohen v. G&M Realty.  

VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes.  VARA grants two primary rights:

  • The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.
  • The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work.

The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti.  Judge Frederic Block, in federal court in Brooklyn, 5 Pointz TRO decision, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute.

Last month the case went to trial, and this week the jury returned its verdict, finding in favor of plaintiff.  The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.”  It seems they reached different decisions for different works, and awarded a variety of damages.  The entire verdict should be released shortly.

And there is an interesting quirk: the parties agreed the jury verdict will be “advisory” and that the Judge will render the final decision — so we will be certain to report in the future on the final outcome.

Please e-mail Mike Bono with any questions or for more information.

Handling Heavy Buckets Not an Elevation Related Risk (NY)

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In Ciechorski v. City of New York, the Appellate Division recently distinguished between “usual and ordinary” dangers of a construction site versus “the extraordinary elevation risks envisioned by the Labor Law Section 240(1).” The Court also addressed the distinction between defendants who actually determine the means and methods of the work versus those who merely exercise general oversight over the performance of the work.

Plaintiff claimed he suffered pain allegedly caused by repeatedly being handed heavy buckets filled with epoxy from workers at a higher level and then transporting the buckets by hand on his own level. Plaintiff claimed he was required to catch buckets in mid-air, after they were dropped by workers standing on a barge about five or six feet above the float stage where he was standing, and this took place over the course of several weeks.

In granting summary judgment in favor of the City of New York, dismissing plaintiff’s complaint, the Appellate Division determined that plaintiff’s claims were unsupported by the record, even when viewed in the light most favorable to plaintiff. The Court noted that plaintiff testified that the barge workers leaned, bent down, or kneeled, as necessary, to hand the buckets to plaintiff, allowing him to grasp each bucket before it was released. As such, the Court determined that the type of activity plaintiff described and complained about was more in line with the usual and ordinary dangers of a construction site as opposed to the extraordinary elevation risks encompassed by the Labor Law.

Furthermore, the Appellate Division affirmed the lower court’s dismissal of plaintiff’s Labor Law Section 200 claim and his common law negligence claims as against defendant Hudson Meridian Construction Group, LLC because that defendant did not determine the means and methods of the work, but rather, exercised only general oversight over the performance of the work and site safety conditions, which is insufficient to trigger liability. In contrast, the means and methods of the work were determined solely by plaintiff’s employer, a non-party to the case.

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

PA Court Admits BAC Result Without Corroborative Witness

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In Pennsylvania, to guard against undue prejudice in civil cases, evidence of a party’s mere alcohol consumption is inadmissible absent evidence that reasonably shows intoxication. In respect of Blood Alcohol Concentration results, courts found to provide that “[BAC] alone may not be admitted for the purpose of proving intoxication,” but must be accompanied by “other evidence showing the actor’s conduct which suggests intoxication.”  The reasoning was that someone may have alcohol in their system but not be impaired.

This issue was at the forefront of Coughlin v. Massaquoi, where Thomas Coughlin, was killed while walking crossing the street when defendant Ummu Massaquoi crashed into him with her car. Defendant Massaquoi was driving in the left lane of the four-lane road and admitted that she did not see Coughlin prior to the impact. After Coughlin was transported to the hospital and pronounced dead, the autopsy and toxicological testing revealed that Coughlin had a BAC of .313%. Other than this post-mortem BAC result, there was no direct evidence presented to the jury of Coughlin’s intoxication—such as witness testimony that he appeared drunk.  Instead, an expert testified as to impact of that BAC level on an average person.

Although a jury trial found the defendant negligent, it also determined her negligence was not the factual cause of Coughlin’s death. Plaintiff appealed, alleging the court erred by admitting evidence of Coughlin’s BAC without independent, corroborative evidence of his intoxication.

The issue for Pennsylvania’s Supreme Court was whether expert testimony interpreting a BAC result constitutes “other” evidence under Pennsylvania case law, or, if independent eyewitness testimony of intoxication is required before admitting a pedestrian’s BAC. The Court modified the previous standard and held BAC evidence is admissible if the trial court determines that it reasonably establishes a pedestrian’s unfitness to cross the street. The defendant met this standard as she presented an expert who testified to the significant impact a .313% BAC would have on the average person’s coordination, judgment, and self-control—concluding Coughlin was thus unfit to cross the street.

There is no doubt that an important factor in the outcome was the near-poisonous level of alcohol in the pedestrian’s blood, and failing to admit it under such circumstances would have led to a very unfair outcome.

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

Mode of Operation Rejected in Sandwich Shop Slip (NJ)

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In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the “mode of operation” doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens).

In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival.

At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages.

Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition.

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

NY Court Finds Plaintiff Should Have Received Extra Time in NCAA Soccer Injury Case

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In Calderone v National Collegiate Athletic Association, the plaintiff sued the NCAA and other parties for personal injuries allegedly sustained during a soccer game and the NCAA immediately moved to dismiss the complaint. On the return date of the NCAA’s motion, the plaintiff attempted to file a stipulation signed by the NCAA’s counsel, agreeing to adjourn the return date and extend the plaintiff’s time to submit opposition papers. But the court rejected the stipulation and marked the NCAA’s motion fully submitted without opposition. Plaintiff moved to extend his time to submit opposition papers to the NCAA’s motion — which was unopposed by the NCAA. But the court denied the plaintiff’s motion on the ground that he failed to follow the motion schedule set by the court’s rules.

On appeal, the Second Department reversed the lower court’s decision, citing to CPLR 2004 which provides, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.”

Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA’s motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA’s motion, and “the policy favoring the resolution of cases on their merits.”

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

Court Splits on Electrical Upgrade Issue (NY)

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In Daly v 9 E. 36th LLC, a New York court wrestled with the issue of whether an apartment building has a duty to update its electrical system to meet the modern electrical needs of tenants, and the question of who is responsible when electrical overuse by a tenant results in a fire.

The plaintiff in this case was a tenant in the defendant’s building, who was injured by a fire in his rent-stabilized studio apartment. The fire was described in the fire incident report as originating “in an area of electrical wiring”; the report also noted the presence of “multiple extension cords plugged in to one outlet with a power strip.”

The apartment building was built in the 1930s and the plaintiff’s apartment had three electrical outlets in the main living space, with additional ones in the hall, the bathroom, and the kitchen. No interior electrical upgrade had ever been done to the apartment, although the plaintiff made several requests to the building to install more outlets. In addition, the plaintiff had shown the superintendent that the existing receptacles were in disrepair. Plaintiff told the superintendent that he “didn’t feel comfortable with using the extension cords,” and did not use them for long periods of time because they would get hot.

From all accounts the fire was caused by the overuse of the electrical outlets in the apartment. Plaintiff argued that the building’s decision not to upgrade the electricity in his apartment, despite the apartment’s history and his requests over the years, was a breach of the duty to keep the building safe and functional for all tenants.

The building filed a motion for summary judgment in New York County Supreme Court, and the court denied the motion. On appeal, the majority of the court agreed that a jury should decide whether plaintiff’s lifestyle and electrical consumption are above and beyond the reasonable needs of any modern tenant, and whether the building had a duty that it breached to keep the apartment building, and plaintiff’s apartment, reasonably safe.

The dissenting opinion, however, was that “rather than moderating his use of power to conform to the building’s electrical capacity (or at least using different outlets for different appliances), plaintiff was entitled to have defendant upgrade the building’s wiring to accommodate his demand.” The dissent concluded that summary judgment should have been granted on the ground that plaintiff’s negligent use of extension cords to operate numerous appliances simultaneously, as opposed to any alleged defect in the apartment’s electrical wiring, was the sole cause of the fire. In its conclusion, the dissent found plaintiff’s “lifestyle and electrical consumption” must still be in accord with the building’s electrical capacity.

Based on the 3-2 decision, it will be interesting to see if this decision winds up with the Court of Appeals.  Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions.