Author Archives: Vincent Terrasi

Fourth Department Gives Buffalo Bills First Win of the Season

Posted on by

As we are less than one month away from the kickoff to the first week of the new NFL season – we report on the case of Wrobel v. Doe where plaintiff, a Miami Dolphins fan, was allegedly assaulted by Buffalo Bills fans in the stands at Ralph Wilson Stadium. Plaintiff alleges that during a Dolphins-Bills game (Bills won 19-14), he was sitting in his seat when plaintiff felt a punch to the head and he was attacked by three men. Plaintiff suffered an injury to his knee and he brought suit against (among numerous parties) the Buffalo Bills and the security company hired to police the stadium. The lower court dismissed the case against the defendants and the plaintiff appealed.

The Appellate Division Fourth Department ruled that the conduct of the Bills and the County was not a proximate cause of his injuries and that an independent act far removed from the allegedly negligent conduct of the Bills and the County, the assailants’ unprovoked criminal assault broke the causal nexus between such allegedly negligent conduct and plaintiff’s injury. The attack was extraordinary and not foreseeable or preventable in the normal course of events.

The Fourth Department further stated ““[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever rival football fans were gathered, surely an unreasonable burden.”

The Fourth Department affirmed the lower Court’s decision because the plaintiff could not prove that the defendants were on notice of any negligent behavior of the fans and the assault was unprovoked and defendants were not liable for the independent acts of the fans that caused plaintiff’s injury.

Thanks to Paul W. Vitale for her contribution to this post.

Theft of Human Hair Weaves Legal Analysis

Posted on by

Recently, in an unpublished opinion, a New Jersey appellate court in the case of Beauty Plus Trading Co. Inc. v. National Union Fire Insurance Co. of Pittsburgh, considered whether an insurance policy’s “loading and unloading” provision precluded coverage to an insured for damages arising out of a theft of a shipment of human hair weaves.

The insured received its goods on a Friday evening, but decided not to unload the container of goods until the following Monday.  Instead of unloading, the insured’s staff Beauty Plus Trading Co. Inc. v. National Union Fire Insurance Co. of Pittsburgh cut the container’s seal and left it on the loading bay outside of the warehouse.  The following night, an individual stole the container housing over $283,000 worth of human hair weaves.

The policy contained a “loading and unloading” section which provided coverage for the insured’s goods for 24-hours after the company received a shipment.  In this case, the insured received a shipment at 5:00 p.m. on a Friday evening and the theft took place at 9:00 p.m. the following Saturday night.  According to the policy, the goods were insured until 5:00 p.m. on Saturday.

The insured tried to argue that coverage under the loading and unloading provision should have been extended through the following Monday under the so-called “business day” rule. This rule states that where a party’s time to perform its obligations under an insurance policy expires on a weekend or holiday, it is entitled to push the deadline to fulfill those obligations to the next business day.  Here, the policyholder argued that the rule should have applied because it did not receive the goods for unloading until the end of the day on Friday.  The judge, however, found that the rule was inapplicable. The loading and unloading provision did not require the insured to unload the goods or perform any obligation during the 24-hours of coverage and the insured could leave the goods in the container as it chose to do. The court found that the plain terms of the policy precluded coverage for this loss.

Thanks to Chelsea Rendelman for her contribution to this post

Reliance Upon American Society of Testing Material and Consumer Product Safety Commission Not Enough to Overcome Prima Facie Showing of Entitlement to Summary Judgment

Posted on by

In Boland v. North Bellmore Union Free Sch. Dist., the Appellate Division, Second Department reversed a denial of summary judgment for defendant. The court found that plaintiff’s opposition, which contained an expert citing to the American Society of Testing Material and Consumer Product Safety Commission was improperly considered by the lower court.  The appellate decision held “these standards…are guidelines and not mandatory, and are insufficient to raise a triable issue of fact regarding negligent installation or maintenance.

The case involved a student that was injured when she fell from an apparatus in the defendant’s school playground during recess. The child and her mother filed a lawsuit in Nassau County Supreme Court against the school district, alleging negligent training and supervision and negligent maintenance of the playground.

Once the lawsuit was filed, the defendant school district filed a motion for summary judgment, asking the Court to dismiss the lawsuit.  In opposition to the motion, the plaintiffs  submitted an expert report that found that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet American Society of Testing Material standards or standards established by the Consumer Product Safety Commission.

The Supreme Court granted part of the motion, dismissing the allegations of negligent training and supervision, but the Court denied the motion to dismiss the allegation of negligent maintenance of the playground, based upon the expert report submitted by the plaintiffs.

On appeal, the Appellate Division, Second Department found that the Supreme Court’s ruling dismissing the negligent training and supervision claim was correct because school district demonstrated that it provided adequate training of its staff and playground supervision, and that the level of training or supervision was not a proximate cause of the accident.   However, the Appellate Division found that the Supreme Court incorrectly denied the motion to dismiss the negligent maintenance claim.  The Appellate Division reversed the Supreme Court’s findings, and held that the defendant established its prima facie entitlement to judgment as a matter of law.  The appellate decision notes that the defendant submitted evidence which demonstrated that it adequately maintained the playground and that it did not create an unsafe or defective condition.  Accordingly, Appellate Division found that the Supreme Court should have granted that branch of the defendant’s motion, which was for summary judgment dismissing so much of the complaint as alleged negligent maintenance of its premises, despite the plaintiff’s expert’s reliance on the guidelines.

Thanks to George Parpas for his contribution to this post.