Expert Opinion Not Worth Bus Fare (NY)

In Salas v. Adirondack Transit Lines, Inc., a personal injury action, plaintiff sued the defendant bus company claiming they breached their duty to provide her with a safe place to disembark from their bus. The Second Department affirmed summary judgment in favor of the bus company and in doing so utterly rejected plaintiff’s expert affidavit submitted in opposition to the underlying motion.

Plaintiff’s expert claimed there is a standard operating procedure in the bus industry where the bus driver offers assistance and warnings to customers when they are boarding or alighting the bus. The Second Department rejected the expert’s affidavit, however, observing he didn’t establish a sufficient foundation to show such an industry standard or practice in fact existed, nor did they cite a regulation or statute the defendant violated to cause the accident.

Litigants can retain an expert to support almost any position for almost any issue, however, often the mere existence of an opposing expert report or affidavit is enough for a defendant to abandon their hopes of winning on summary judgment. While it’s true that courts are reluctant to break ties in Battles of Experts at the summary judgment phase, defendants should not abandon good motions in the face of an opposing expert opinion.

Rather, as Salas shows, a defendant can prevail outright even if plaintiff hires an expert in an attempt to defeat the motion if the expert does not provide a sufficient basis for their opinion—and if a defendant properly attacks that opinion on reply.

Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions.

Even Great Facts Can Lead to Appellate Practice, or, There’s No Such Thing as a Slam Dunk (NY)

In Young v Associated Blind Hous Dev. Fund Corp., plaintiff sued for personal injuries following a trip and fall on a defective sidewalk. Plaintiff claimed that a sidewalk shed narrowed the plaintiff’s path and led her straight into a sidewalk defect. The subject of the appeal was the duty of a contractor related to a construction site.

Procida Construction contracted with the owner to repair the sidewalk. Notably, their contractual duties did not arise until after the construction project was completed and the sidewalk bridge was removed.

Procida was denied summary judgment in Bronx County Supreme Court despite irrefutable evidence that the sidewalk bridge was in place on the date of accident. Indeed, its placement formed the very basis of plaintiff’s claims against the scaffolding company. Moreover, the plaintiff testified that she could not see the sidewalk where she was walking, due to a visual impairment and because a pizza box she was holding obstructed her view. Notwithstanding, Procida’s motion for summary judgment was denied, even though it had no duty to repair the sidewalk until after the sidewalk shed was removed and despite plaintiff’s admitted visual impairments.

The Appellate Division, First Department reversed this egregious decision by finding that Procida showed that it was only contracted to make repairs to the sidewalk after exterior scaffolding and a sidewalk shed were removed upon completion of the renovation project. In opposition, neither plaintiff nor the other defendants raised a triable issue of fact as to whether the subject sidewalk was narrowed, forcing plaintiff to walk onto the defect. The court found that the record was bereft of evidence that the scaffolding and sidewalk shed diverted her toward the uneven sidewalk flag.

What would seem like a great set of facts for the defendant still resulted in a denial of summary judgment in the Bronx. But these actions present several opportunities for victory and counsel must be tenacious and stay the course and pursue every opportunity to win, at all times, even when the case takes an unexpected turn. And on occasion, the opportunity is a result of appellate practice.

Thanks to Vincent Terrasi for his contribution to this post. Please email Vito A. Pinto with any questions.

Clarification of Established Law Stacks Results in Favor of Policyholders (PA)

This blog post is a follow-up to the February 5, 2019 post on the Gallagher decision. What happens when an insured plaintiff wants to be able to retroactively apply a clarification that has come out of a recent decision? That is the question under discussion in the Eastern District of Pennsylvania case, Butta v. GEICO Casualty Co.. This case is an extension of the recent decision, Gallagher v. GEICO Indemnity Co., where the Pennsylvania Supreme Court decided that the “household exclusion” clause in vehicle insurance policies within the same household was a violation of the state’s Motor Vehicle Financial Responsibility Law (MVFRL), which was enacted in 1990.

In this case, the court discusses how the Gallagher decision has changed how stacking of vehicle insurance policies can be applied across different members of one household. Under § 1738 of the MVFRL, after paying a higher premium, members of the same household who have the same insured can stack their uninsured/underinsured insurance policies, so that if one member is in an accident, the coverage of other household members can be counted toward his or her claim. Insured parties can choose to waive this stacking feature. However, as opposed to stacking, some insurance companies have a provision in their policy where members of the same household cannot stack their insurance policies for their individual vehicles unless every vehicle is listed on every policy across the household. Gallagher challenged the “household exclusion” rule as imposing a de facto waiver and the court ultimately ruled that it was a violation of the MVFRL. In Butta, the plaintiff was injured in a motorcycle accident on a motorcycle that had underinsured coverage protection with Geico. The plaintiff lived with his parents who also had underinsured coverage through Geico for their own vehicles but had a “household exclusion” provision in their policies. The issue in this case is whether Gallagher could be applied retroactively since the plaintiff’s insurance claim occurred prior to the Gallagher decision in January 2019.

In order to make that decision, the court went through two analyses. First, it revisited previous court decisions that applied the household exclusion policy and prevented stacking coverage in vehicle accidents. Second, since it was making a decision based on a case that was decided in the Pennsylvania Supreme Court, the court had to address the issue of retroactive application from the perspective of the Pennsylvania Supreme Court. The defendant argued that the Gallagher decision could not be applied retroactively because the decision established a new rule of law. However, the court rejected this argument by stating that Gallagher does not change case precedent, but reflects what the MVFRL intended when it was introduced in 1990. The case does not deliver a new rule, but provides an explanation of what already existed under the statute. Additionally, the court states that the defendant based its arguments on non-precedential opinions, so there is no evidence that Gallagher was not meant to be applied retroactively. As a result, the plaintiff was able to apply Gallagher to his motorcycle accident.

This case is a lesson that sometimes in the law, it takes more discussion and court decisions before the rules are fully understood and before we get to the ultimate point that the legislature intended. Therefore, for certain parties, while it may seem that a rule of law is stacked against you, you may find over time that it actually falls in your favor.

Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions.

Updated Broker Liability Statutes in New Jersey, But No Alarming Changes (NJ)

The New Jersey legislature has recently enacted amendments to N.J.S.A.17L22A-26 and N.J.S.A.2AL53A-27, effective May 13, 2019. These amendments involve an update to the Affidavit of Merit Act as well as an update to language relating to insurance producers. As explained below, however, these updates have very little, if any, impact of broker liability in New Jersey.

First, the Affidavit of Merit (AOM) Act, which requires an affidavit of merit stating that in reasonable probability professional performance fell outside an acceptable standard, was slightly altered. As it relates to brokers, the AOM Act now requires that the affiant be licensed in both the current state and have practiced in the field for the five years immediately preceding the date of the occurrence. This is in direct contrast to the requirements for other categories of licensed persons which only requires an affiant to be licensed (in any state) and have practiced for at least five years (without the requirement of those five years immediately preceding the date of the occurrence). Significantly, this amendment only applies to the author of the affidavit and not the professional expert who is actually testifying at trial.

Second, language relating to insurance producers has been updated to include the following:

[A]n insurance producer shall exercise ordinary and reasonable care and skill in renewing, procuring, binding, or placing property and casualty insurance coverage … requested by an insured or prospective insured … [and] this section shall not limit or exempt an insurance producer from liability for negligence … or limit or prevent an insurance producer from asserting any defenses available at common law.

Prior to this amendment, broker liability standards were set by Aden v. Fortsch, 169 N.J. 64 (2001). Under Aden, the insurance brokers owe a duty or obligation to have and to use a degree of skill and knowledge which insurance brokers of ordinary ability and skill possess and exercise in the representation of a client. This standard should be used to judge insurance brokers in their placement and advise as to insurance policies.

N.J.S.A.2AL53A-27 also stated that if the conduct upon which the cause of action is based involves the wrongful retention or misappropriation of any money that was received by the insurance producer as a premium deposition or as a payment of a claim, that insurance producer is liable under the standard imposed on fiduciaries. However, the responsibility of a fiduciary standard is not new to insurance producers. Rather, the amendment only restates the known legal obligation of a fiduciary and has no impact on the “ordinary and reasonable care and skill” standard, as expressed in Aden. Specifically, Aden states the following:

That rule [that the conduct of a client in a professional malpractice claim is relevant only if the conduct of said client affirmatively impedes the professional in his or her performance] is premised on the heightened responsibilities of professionals in this State. Otherwise, the fiduciary relationship between the professional and the client may be undermined and professionals may be allowed to escape liability for their malpractice.

As such, the inclusion of a “fiduciary standard” more or less reflects the law already set out in Aden. As a result, upon review of these two amendments, it is clear that no real changes have occurred to broker liability law in New Jersey.

Thank you to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions.

The Weather Outside is Frightful (NJ)

In Dixon v. HC Equities Associates, LP, the plaintiff tripped and fell on an icy sidewalk while walking to her state-issued car. Although she wore boots and walked cautiously, her feet slipped on at least one inch of snow. At her deposition, she confirmed the snow started after she arrived at work that day and continued until her fall. The plaintiff sued the defendant owner for negligence, arguing HC Equities Associates, LP breached its duty of care in failing to remove snow and ice on the facility’s sidewalk, which proximately caused her injuries.

After the completion of discovery, the defendant owner moved for summary judgment. The argument was simple: there was no breach of a duty of care to the plaintiff because its duty to act in a reasonably prudent manner to remove or reduce the hazard (snow and ice) did not start until a reasonable time after the snow stopped. After oral argument, the trial court agreed that no rational jury could find defendant was negligent because the plaintiff fell during an ongoing snowstorm. Accordingly, the trial court granted summary judgment as a matter of law. The plaintiff appealed, arguing the duty should be expanded.

At common law, residential and commercial property owners did not have a duty to maintain public sidewalks abutting their premises free from snow and ice. Skupienski v. Maly, 27 N.J. 240, 247 (1958). An exception to maintain abutting sidewalks was carved out for commercial landowners in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149-50 (1981), which Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983) extended to snow and ice removal. A commercial owner’s responsibility therefore arises only if, after actual or constructive notice, he has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard.” Mirza, 92 N.J. at 395.

On appeal, the Appellate Division reaffirmed the long-upheld principle that commercial property owners are not liable for clearing snow during a snowstorm. See Bodine v. Goerke Co., 102 N.J.L. at 642-43 (E. & A. 1926) (holding that a property owner could not be liable for ailing to remove slush or ice from the entrance to a store while the storm was still ongoing). After noting it was undisputed that the snowstorm was ongoing when the plaintiff slipped and fell, the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove it. Therefore, the trial court’s grant of summary judgment was affirmed.

Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.

Plaintiff Rides Again: Dude Ranch’s Motion for Summary Judgment Denied (NY)

In SARA W by HENNY W v Rocking Horse Ranch Corporation, plaintiffs commenced an action seeking to recover damages for injuries sustained by plaintiff, who was 16-years-old, when she fell from a horse while at defendant’s dude ranch. Defendant moved for summary judgment on the theory of assumption of the risk, but was denied by the lower court. Defendant appealed.

Under the doctrine of primary assumption of the risk, although “participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, ‘[p]articipants will not be deemed to have assumed unreasonably increased risks’ ”

In support of its motion, defendant submitted the deposition testimonies of the infant and Robert Gilbert, a certified horse wrangler employed by defendant who assisted the infant, to show that it exercised care in ensuring that the horse riding conditions were as safe as they appeared to be. Gilbert’s testimony established that the infant was provided with an appropriate horse for a beginner’s trail, helmets were required of infants participating in the ride, the infant was provided with instructions prior to the ride and a horse wrangler accompanied the riders during the trail ride and also assisted the riders when dismounting. Importantly, the infant herself testified that she was aware that there were risks involved in the activity, as she had been on horseback riding trails prior to the incident.

Plaintiff contended that defendant was negligent in helping her dismount the horse. The infant’s description of the incident differs from Gilbert’s description. Specifically, the infant testified that Gilbert moved away from her and towards the horse’s head to tame it and that it was this movement by Gilbert that caused the horse to move, leading to the infant’s fall.

The Appellate Division, Third Department agreed with lower court and upheld their decision finding a question of fact. The Appellate Division held that although defendant attempted to provide adequate assistance on dismount, there still remains a question of fact as to whether defendant’s response to the situation, in light of evidence that the infant was a novice and that the horse was jittery and jumpy, heightened the risk of her fall, thereby unreasonably increasing the risks of horseback riding.

As we highlighted some years ago reporting on Corcia v. Rocking Horse Ranch, there will be a question of fact whenever a plaintiff presents evidence that the defendant increased the risk at hand.

Thanks to Paul Vitale for his contribution to this post.

Plaintiff’s Claim Against Movie Theater Flops at Box Office (NJ)

Anyone who has gone to the movie theater to catch the latest flick knows to tread carefully when exiting the theater. No matter how many ushers and cleaning crew are available, it’s a challenge to keep the floors completely free of any loose popcorn, snacks, or general debris in between movie showings.

In Frankel v. Edgewater Multiplex Cinemas, et. al., plaintiff filed a claim seeking damages for injuries sustained after a slip and fall in defendant’s movie theater. It was a crowded night at the theater, so plaintiff decided to sit in the dreaded first seat of the first row which was adjacent to an emergency exit door. When the movie ended, plaintiff attempted to exit towards the lobby, when he slipped and fell into the metal bar of the emergency exit door suffering a crush avulsion and laceration to his forehead.

Plaintiff testified that he had seen “litter” when he first sat down in the theater before the movie began, but “paid it no mind.” However, plaintiff was unable to identify what he had fallen on at the time of the accident. The defendant indicated that not only did the theater have ushers that would clean the theaters between movie showings, a “breach person” is responsible for inspecting auditoriums each hour to check sound levels, lighting levels, cell phones, talking patrons, or any items posing a tripping hazard. The theater showed evidence that the breach person had inspected the theater on an hourly basis, including two inspections which took place approximately half an hour before plaintiff’s accident.

The appellate court found that although there is a duty of care of business owners to eliminate dangerous conditions and keep the premises reasonably safe, plaintiff failed to show that defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Plaintiff could not identify what he had slipped on, and therefore could not establish that defendants were aware of the condition that caused plaintiff to fall. As such, the appellate court affirmed the trial court’s decision and affirmed defendant’s dismissal from the lawsuit.  Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.

Seemingly Inconsistent Verdict Results in Defense Win (PA)

On March 6, 2019, the Pennsylvania Superior Court affirmed a judgment entered in the Court of Common Pleas Monroe County in Steudler v. Keating.  The case arises out of a tragic accident in which Kirkland Keating’s car struck and killed Victor Angel Resto while Resto and Steudler were walking on the side of a highway.  At trial, it was undisputed that the Accident occurred on October 19, 2011 at 10:00 pm.  There was also no dispute that Decedent and Steudler were walking in the dark without any flashlights on the same side of a two-lane road as vehicles traveling in the same direction.

However, facts concerning where Decedent and Steudler were walking, Keating’s driving and the weather and visibility conditions were disputed.  According to Keating, he had been obeying all traffic laws at the time of the Accident and did not see Decedent before his SUV struck Decedent.  Further, both Keating and the responding police officer testified the road was dark and it was raining heavily at the time of the Accident.  The police officer also noted the Decedent was wearing dark clothing and he found one of Decedent’s shoes lying partially on the white line of the road.  As such, Keating’s expert opined that Decedent was walking on the road itself at the time of the Accident and not on the shoulder.

After deliberation, the jury returned unanimous verdicts finding Keating was negligent, but Keating’s negligence did not cause harm to the Decedent and Steudler.  Steudler and Decedent’s estate appealed on the ground that the verdicts were against the weight of the evidence.   Based on the verdict sheet, the jury found that the defendant was negligent, but that the negligence did not cause harm to the plaintiffs, which seems at odds with the fact that there was 1) negligence and 2) a collision with the pedestrian plaintiffs.

In Pennsylvania, a new trial cannot be granted on the ground that the verdict was against the weight of the evidence if the evidence at trial was conflicting and the jury could have decided in favor of either party.  Here, both Keating’s negligence and the cause of Decedent’s death were disputed at trial and the evidence was conflicting.  Therefore, the PA Superior Court affirmed the trial court’s ruling.  Thanks to Garrett Gittler for his contirbution to this post.  Please email Brian Gibbons with any questions.

No Driver’s License means No PIP Benefits for that Driver in New Jersey

In Blanco-Sanchez v. Personal Service Ins. Company, a New Jersey Appeals court ruled that unlicensed drivers are not entitled to personal injury protection (PIP) benefits for car crash injuries even if they have been given permission to drive a car by the owner.

Norma Blanco-Sanchez suffered injuries in a car crash while driving her mother’s car. Sanchez sought PIP benefits to cover her medical bills under her mother’s policy, which provided such coverage for up to $15,000 in covered medical expenses at the time of the crash. After the insurer denied the application, Sanchez filed suit. Personal Insurance immediately moved for summary judgment and the trial Court granted the motion, reasoning that “while the PIP portion of defendant’s policy did not contain a specific exclusion for unlicensed drivers, the argument is not whether it contains an exclusion…you can’t give permission to extend the coverage in a situation where they couldn’t have obtained coverage to begin with.”

Sanchez appealed and argued that the policy did not “expressly” exclude such coverage for situations such as this.  However, Sanchez’s mother knew that she was an unlicensed driver at the time the accident occurred.

The appellate panel affirmed the trial Courts decision stating that Sanchez cannot recover PIP benefits as a matter of public policy because an owner cannot give permission to a driver who is known to be unlicensed. Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

Jury Leaves Portions of the Verdict Sheet Blank – What is Remedy? (PA)

In Mader v. Duquesne, a fifty-four-year-old masonry contractor was conducting chimney repair at a home, and was electrocuted when an aluminum extension ladder he was carrying made contact with underground electrical power lines. As a result, plaintiff was severely burned on his arms and feet, underwent multiple surgeries, and his feet were amputated.

Plaintiff filed a personal injury action against the owner of the power line alleging negligence in maintaining the electric lines too close to the ground. The jury returned a verdict where the power line was found 60% negligent and the plaintiff 40% negligent. The trial court instructed the jury that if liability was found, plaintiff was entitled to compensation for past medical expenses, past lost earnings, future lost earning capacity, past and future pain and suffering, embarrassment and humiliation, loss of ability to enjoy the pleasures of life and disfigurement. The jury awarded only past medical expenses and future medical expenses. The plaintiff then filed a motion requesting a new trial on the issue of damages. Defendant agreed that a new trial on past pain and suffering was appropriate but objected to a new trial on all damages. The trial court granted the plaintiff’s motion and the defendant appealed.

The Superior Court affirmed in part and reversed in part. First, the Court held that the trial court erred in ordering a new trial on the issue of past medical expenses because those damages were stipulated to by the parties. The Superior Court also held that that the trial court erred in granting a new trial on future medical expenses since that issue was fully developed and the jury determined its verdict regarding future medical expenses after fully evaluating the evidence presented. However, the Superior Court affirmed the trial court’s decision to order a new trial on past wage loss and loss of future earning capacity stating that the jury’s verdict for zero damages was against the weight of the evidence.

Finally, the Court affirmed the trial court ordering a new trial on pain, suffering, loss of enjoyment of life’s pleasures and disfigurement.  Interestingly, the defendant’s strategy on appeal was to concede that plaintiff was entitled to a new trial on past pain and suffering, based on the testimony proferred, but instead argued that plaintiff was not entitled to a new trial on present and future pain and suffering.  This was bold but well thought-out strategy by the defense, but the appellate Court sided with the plaintiff on this issue, and awarded a new trial on all pain and suffering claim.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.