Court Upholds Highest Damage Award for TBI Injury (NY)
Recently, courts have begun to uphold increasingly high damage awards for plaintiffs’ injuries indicating a change into the modern era where the cost of living and earnings have increased, reflecting the ability of defendants to pay more. In the case of Perez v. Live Nation Worldwide, Inc., 2021 BL 134621, N.Y. App. Div. 1st Dep’t, No. 13579, April 13, 2021, a Manhattan judge reduced a $102 million jury award to $40.6 million for plaintiff’s pain and suffering. Plaintiff suffered severe brain injuries when he fell from a high scaffold-type structure while working construction at the Jones Beach concert theatre after another worker rammed the structure with a forklift. This verdict more than doubles any past pain and suffering award in New York State. While New York courts have adhered to a $10 million limit, the First Department has affirmed this $20 million verdict. The court in Perez admitted it was looking at things with a “fresh eye” in deciding to maintain the significant increase in the severe catastrophic cases with conscious pain and suffering. The court also noted that this award is much higher than any other cases cited, including those involving similar devastating injuries. For example, in Hedges v Planned Sec. Serv. Inc., 198 AD3d 485, 488 (1st Dept 2021), plaintiff became seriously injured and was left near death when two 12 year old boys threw a shopping cart over the fourth floor railing of a shopping mall, striking her. Plaintiff brought suit against the owner of the mall and the mall security firm. In that case, the jury awarded plaintiff $29 million, reduced to $14.5 million by the trial court, for permanent structural brain damage and actual brain shrinkage and atrophy. The concern with these high verdicts is that these will lead to more massive and unpredictable payouts which means higher insurance costs for struggling businesses. Another concern is the potential likelihood of forum shopping to Bronx and New York Counties, both served by the First Department which has effectively doubled the market value of injuries in the Bronx and Manhattan in affirming the damages od this case. Thanks to Gabriella Scarmato for her contribution to this post. Email Georgia Coats if you have any questions.Read MoreHow Far Does The Duty To Provide A Safe Worksite Extend? (NY)
In Potenzo v. City of NY, the Appellate Division, First Department addressed whether the plaintiff was entitled to partial summary judgment against the defendants City of New York and Tishman Technologies on the Labor Law § 241(6) claim.
Plaintiff brought this cause of action against the defendants for personal injuries sustained when he fell on ice while walking on a path between “the fenced-in area from the security guard booth” and the worksite entrance. The question before the court was to determine if the path was considered a “walkway”.
The court stated, “Labor Law § 241(6) imposes a nondelegable duty upon owners, contractors and their agents to provide adequate protection and safety for workers. To establish a claim under this section, plaintiff must allege that defendants violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct.” (citations omitted). The Appellate Division rejected the lower courts holding that 12 NYCRR 23-1.7(d) did not apply, which states, that no employee shall be allowed “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires the removal of any “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing.”
The court held that “there are no issues of fact to preclude” summary judgment in plaintiff’s favor because: 1) the path plaintiff slipped on was between the security guard booth and the worksite entrance; and 2) it was one of two entrances to the worksite that was used by the workers and as such, the path plaintiff slipped on “clearly qualifies as a walkway within the meaning of 23-1.7(d).”
This decision serves as a reminder that the duty upon owners and contractors to provide a safe worksite can extend to a walkway a worker uses even before entering the site.
Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions.
Read MoreIt’s Just Part of the Game: Plaintiff Assumes Risk with Collision at Third (NY)
In Infant v. Loisaida Inc, plaintiff, a thirteen-year-old, was injured when, as he was fielding at third base in a baseball game, a baserunner slid into the base and collided with his left shin. Infant plaintiff brought suit alleging negligence of the league for his injuries. Defendants argued that the plaintiff assumed the risk, as he had played baseball for seven years. The lower court dismissed the case against the defendants and plaintiff appealed.
The Appellate Division, First Department affirmed the lower Court’s decision under the doctrine of assumption of risk, as knew the inherent risks of the game. He was injured in a common play in baseball.
The Court rejected plaintiffs’ argument that the baserunner’s metal cleats created an enhanced or concealed risk that was not assumed. The little league rules that defendant was required to follow permitted the wearing of such cleats, and both the 13–year–old infant plaintiff and his father testified that they observed the baserunner wearing metal cleats. Plaintiffs have not shown that defendant failed to provide safety equipment that would have prevented the inherent risks.
Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision
Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions.
Read MoreHit Pause, Get Hit, Lose Labor Law Protection (NY)
In Palermo v. 7 West 21 LLC, the First Department considered the application of Labor Law 240(1) when work has paused for a break. Plaintiff Palermo and his coworker had just pried a wood form off of a wall where concrete formwork was being done. The wood form measured 3 by 3 feet wide, 8 by 12 feet long, and weighed approximately 175 to 200 pounds. Plaintiff asked to take a short break to stop so that he could clear debris from his feet, and then plaintiff rested his side of the wood form on top of vertical piping which protruded about 3 feet out of the ground. After plaintiff had released his end of the form, his coworker suddenly picked up his end of the form, causing the wood to fall off the piping and strike the plaintiff’s foot.
Plaintiff moved for summary judgment under Labor Law 240(1), and the trial court denied the motion on the grounds that there was an issue of fact as to whether the accident occurred during the performance of a statutory activity with elevation-related risks requiring that the wood form be secured. The trial court also found that there was a question of fact as to whether any safety device of the kind contemplated in Labor Law 240(1) that could have prevented this accident. On appeal, the First Department unanimously affirmed. Labor Law defendants should take note that the timing of job site accidents may provide grounds for denial of summary judgment if the accident takes place during a break or rest of any kind.
Thanks to Shira Straus for her contribution to this post. Please email Georgia Coats with any questions.
Read MoreHomeowner’s Policy Fails to Cover Crowded Concert Assault (PA)
The Superior Court of Pennsylvania recently ruled that “industry standards” evidence may be barred in matters dealing with strict liability. In Sullivan v Werner Company, the appellate court finally provided guidance related to the Pennsylvania Supreme Court’s previous decision in Tincher v. Omega Flex as it relate to industry and governmental standards evidence.
The underlying incident occurred when Michael Sullivan (“Sullivan”) fell through scaffolding made by Werner Company and later sold by Lowe’s Companies, Inc. A jury determined that Sullivan’s accident occurred due to a design defect and awarded Sullivan $2.5 million in damages. Thereafter, an appeal was filed in which the defendants alleged that the trial court erred in precluding industry standards evidence.Specifically, the defendants asserted that they should have been permitted to introduce evidence of other scaffolds with deck pins similar in design to those used in the scaffold at issue. The parties differed over the effect of the Pennsylvania Supreme Court’s decision in Tincher on evidentiary prohibition against government and industry standards evidence in strict liability cases. The defendants argued that Tincher allowed for government and industry standards to be admissible in strict liability cases whereas Sullivan countered that Tincher did not impact the evidentiary prohibition.
In reaching its conclusion, the Superior Court underwent a review of relevant Pennsylvania case law. Ultimately, the Superior Court held that Tincher neither explicitly nor implicitly overruled the exclusion of industry standards evidence in a products liability case. The Superior Court noted that, in the future, the Supreme Court may allow industry and governmental standards as suggested by the Restatement (THIRD) of Torts but that, until it does, it would not be improper for a trial court to decide to exclude such evidence. Furthermore, the Superior Court noted that the language within the Restatement (SECOND) of Torts § 402A(2)(a) currently provides sufficient reason to exclude industry and governmental standards evidence. Specifically, the Restatement (SECOND) of Torts § 402A(2)(a) provides that strict liability is established notwithstanding that the “seller has exercised all possible care in the preparation and sale of his product.” The Superior Court opined that whether a manufacturer has complied with industry or government standards goes to whether it “exercised all possible care in preparation of product” in making the design choice, not on whether there was a design defect in the product itself. As a result, the Superior Court ruled that it was not unreasonable for the trial court to exclude industry and governmental standards evidence in Sullivan’s case.
Thanks to Zhanna Dubinsky for her contribution to this post. Please email Georgia Coats with any questions.Read MoreNo Joy In Mudville: Plaintiff’s Case Strikes Out (NY)
In Chiaramonte v. Town of Smithtown, plaintiff was playing in a charity softball tournament sponsored by the defendants when she slipped on a muddy surface of one of the fields running from second to third base, allegedly injuring herself. The plaintiff subsequently commenced the instant action to recover damages for personal injuries against the defendants, alleging that they were negligent in the maintenance of the subject field. The defendants moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff assumed the risk of her injuries. The Supreme Court granted the motion, and the plaintiff appeals.
The Appellate Division, Second Department, upheld the lower Court ruling under the doctrine of primary assumption of risk. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation. Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.
Here, the plaintiff admitted to observing that the field on which she was injured was “pretty muddy” prior to her accident, and testified at her deposition that she knew that it had rained the day before the accident. The plaintiff, a seasoned softball player and coach, further testified at her deposition that she had played softball previously in the rain and was fully aware that she could be injured at any time playing softball.
The evidence submitted in support of the motion demonstrated that the plaintiff knew of the muddy conditions on the subject field and voluntarily chose to play anyway, and that she was readily aware of the risks inherent in the game of softball. Thus, she assumed the risk of slipping on mud on this field at the time of the subject accident.
Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions.
Read MoreIt’s Time For Investors To Pay Up (NY)
When a new condominium building in New York City is found to have construction defects, who pays?
In 2013, New York courts ruled that condominium boards could only seek compensation from investors if the board could prove a fiduciary relationship existed between the board and the investors. This ruling made it almost impossible for boards to recoup compensation for construction defects because condominiums are often developed by a single-purpose entity, formed merely to construct the building, sell the units, and distribute the proceeds to investors. Once the proceeds are distributed, the entity is often dissolved, leaving no money and boards left alone to pay the damages.
However, a recent Appellate Division decision regarding a condominium in the Financial District, Board of Managers of BeWilliam Condominium v. 90 William St. Development Group LLC, reversed this 2013 decision. In this case, the condominium building was completed in 2008 with a projected sellout of $97 million. Yet, the condominium board began to complain about construction defects in 2010, which led to claims of “shoddy work” in their 2013 complaint.
With this new ruling, investors could now be held responsible for paying a portion of damages resulting from construction defects. As a result of this decision though, investors will not be automatically held liable. Instead, condominium boards that are fiscally unable to pay damages will now have the ability to seek recovery from investors by “following the money.”
Although the exact amount of damages the condominium board will be able to recover is yet to be determined, as a trial is still pending on the $3 million in damages, this case will not only allow unit owners to be made whole but will also not put all of the burden on a condominium board.
Thanks to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions.
Read MoreStaircase Not Defective Using Ancient Codes (NY)
In Jackson v. Bethel A.M.E, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment on the issue of liability after the plaintiff allegedly fell while descending an exterior staircase owned by defendants Bethel A.M.E and African American Methodist Episcopal Church (“Bethel Defendants”).
Bethel defendants retained co-defendant D’Alessandro & Son Contractors, Inc. to regrout the staircase at issue. Plaintiff alleged the staircase was defective since it did not have a handrail in the center, in violation of the 2003 and 2007 New York State Building Code.
The court stated, “….. the Bethel defendants established, prima facie, that the plaintiff did not know what had caused her to fall and that the subject staircase, which predated the 2003 and 2007 versions of the Building Code, was not required to be equipped with a handrail in the center.”
The Bethel defendants were able to show they were entitled to summary judgment by establishing 1) that plaintiff did not know the cause of her fall and 2) that the defendants were not required to have a handrail in the center of this particular staircase.
This decision serves as a reminder that if the plaintiff ever alleges that a defendants building is not up to code, it is imperative to hire an engineer to review the applicable code and to see if the alleged code violations pertain to the alleged defective condition.
Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions.
Read MoreNo Coverage For Vehicle Driven By Employee But Not Possessed By Employee (PA)
The Eastern District of Pennsylvania recently determined that an insurance company had no duty to contribute to a settlement over a car accident involving its insured’s employee while the employee was driving a noncompany vehicle. In Continental Casualty Company v. Pennsylvania National Mutual Casualty Insurance Company, the court determined that there was no coverage as the employee did not “borrow” the vehicle involved in the accident.
The incident involved a vehicle collision between a motorcycle driver and a GMC Yukon driven by an employee of Shady Maple Smorgasboard, Inc. The GMC Yukon was owned by Sight & Sound Ministries Inc. Occasionally, including at the time of the accident, the Shady Maple employee drove to marketing events in the same vehicle as an employee from Sight & Sound, which often partnered with Shady Maple in various marketing efforts. At the time of the accident, the Shady Maple employee, with permission, was driving the GMC Yukon owned by Sight & Sound.
In the aftermath of the accident, a lawsuit was commenced against the Shady Maple employee, Sight & Sound, and other entities in the Philadelphia County Court of Common Pleas. Later, the action was settled in private mediation for $10 million. Sight & Sound’s insurer, Continental Casualty Co., contributed $8.7 million to the settlement. Thereafter, Continental sought reimbursement from Pennsylvania National Mutual Casualty Insurance Co. which insured Shady Maple through a declaratory judgment action in the Eastern District of Pennsylvania.
Ultimately, the court found that Penn National had no duty to reimburse Continental for the settlement because the Shady Maple employee never acquired “control, dominion or possession” over the GMC Yukon. As such, the court determined that Shady Maple could not have “borrowed” the GMC Yukon for business purposes. In reaching its decision, the court considered a number of factors including the fact that the GMC Yukon was already set to be used to attend a trade show and that the Sight & Sound employee could have told the Shady Maple employee to stop driving the vehicle at any point in time. Additionally, the court determined that the Shady Maple employee’s offer to drive was not based on any effort to exercise control of the vehicle for Shady Maple’s purposes. Furthermore, the court stated that the Shady Maple employee did not have express authority from Shady Maple, itself, to borrow the GMC Yukon. As such, the court concluded that, although a Shady Maple employee was behind the wheel, Sight & Sound remained in possession and control of the GMC Yukon at the time of the accident. As such, Continental’s declaratory judgment action was denied.
Thanks to Zhanna Dubinsky for her contribution to this post. Please email Georgia Coats with any questions.
Read MoreHomeowners Policy Fails to Cover Crowded Concert Assault (PA)
The United States District Court for the Western District of Pennsylvania recently determined that an insurer did not owe defense or indemnification to a homeowner who allegedly punched another person while attending a concert. In State Farm Fire and Casualty Company v Simone, the insurance company filed a declaratory judgment action against its insured and moved for judgment on the pleadings, which was granted by the District Court.
The underlying incident occurred when Michael Wain and Charles Joseph Simone separately attended a crowded concert at Key Bank Pavilion in Hanover Township, Pennsylvania. Simone and a friend of Wain “bumped into” one another which resulted in Simone striking Wain in the face with his fist. As a result, Wain suffered from numerous fractures and a traumatic brain injury.
At the time of the fight, Simone was insured by State Farm and sought personal liability coverage under his homeowners policy. State Farm began a legal defense on Simone’s behalf, subject to a reservation of rights, and later filed a declaratory judgment action. In the declaratory judgment action, State Farm moved for a judgment on the pleadings arguing that it did not have a duty to defend or indemnify Simone because Wain’s injuries did not allege that his injuries resulted from an “occurrence” as that term is defined in the policy. Specifically, State Farm asserted that Wain’s injuries were not caused by an “accident” and therefore no recovery existed under the policy.
The State Farm policy provided coverage from damages that result from “bodily injury” caused by an “occurrence.” The term “occurrence” was defined within the policy as an “accident.” However, the term “accident” was not defined within the policy. The District Court relied on relevant case law to determine whether Simone’s alleged assault qualified as an “accident” under the policy.
Ultimately, the District Court determined that Simone’s actions, in punching Wain in the face, clearly qualified as intentional conduct and, specifically, a willful assault. Furthermore, the District Court addressed the negligence claims, both for Simone breaching his duty to act reasonably and avoid injuring Wain as well as Simone negligently allowing himself to become intoxicated and lose control of his emotions, included in Wain’s complaint. The District Court noted that the allegations of negligence also contained allegations of intentional conduct and each relied exclusively on and related only to Simone’s alleged actions in punching Wain. As a result, the District Court granted State Farm’s motion for judgment on the pleadings and held that State Farm did not owe a duty to defend or a duty to indemnify Simone.
Thanks to Zhanna Dubinsky for her contribution to this post. Please email Georgia Coats with any questions.
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