The Court of Common Pleas of Monroe County recently denied a plaintiff’s attempt to venue a lawsuit in Monroe County, Pennsylvania. In Baughman v Hershey, the plaintiff’s accident took place in Daupin County, Pennsylvania and the plaintiff attempted to argue that sufficient contacts were made in Monroe County, Pennsylvania as well.
The incident involved a slip and fall which took place at Hershey Park Stadium in Dauphin County, Pennsylvania. However, the plaintiffs filed their lawsuit in Monroe County, where they purchased the tickets. Hershey objected to venue in Monroe County and filed preliminary objections pursuant to Pa.R.C.P. 1028(a)(1) and Pa.R.C.P. 2179(a). In response to the preliminary objections, the plaintiffs sought leave to take discovery on the issue of venue which was granted by the court.
After discovery was completed, the court stated that “in determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis.” The court went on to find that, while Hershey had sufficient quality of contacts in Monroe County, it did not have a sufficient quantity of contacts for venue purposes. The court specified that Hershey’s total sales in Monroe County were a mere 0.24% in 2019. While Pennsylvania courts have found that venue was proper when a defendant’s sales in a county were 1-2% of total business, they also previously refused to confer venue when sales ranges from 0.08% to 0.17% of total sales.
Overall, the court found that the percentage of income that Hershey generated from all contacts with the Monroe County market was minimal and that the necessary quantity of acts is not present to render Monroe County a proper venue based upon the provision in Pa.R.C.P 2179(a)(2). The plaintiffs also attempted to give weight to the fact that the ticket was purchased through Ticketmaster and that the ticket was the source of the plaintiffs’ status as business visitors at Hershey’s premises, thereby qualifying under Pa.R.C.P. 2179(a)(4) as a transaction from which the cause of action arose. Although the court agreed that, since the ticket was purchased in Monroe County, the contract may be considered to have been accepted in that venue, it ultimately concluded that the issue did not surround a contract dispute and the place of purchase carried little weight.
Thanks to Zhanna Dubinksy for her contribution to this post. Please email Georgia Coats with any questions.Read More
On December 2, 2020, the Superior Court of New Jersey, Appellate Division vacated the trial court’s order to compel arbitration and remanded the case to trial court in Knight v. Vivint Solar Developer. The Appellate Division reasoned it was unclear from the record whether the plaintiff agreed to arbitrate disputes under the agreement and remanded for a plenary hearing to the trial court.
The Plaintiff filed a claim alleging violations of the New Jersey Consumer Fraud Act against the Defendants, and the Defendants moved to compel arbitration. In a January 29, 2020 order, the trial court granted Defendant’s motion to compel arbitration and stay Plaintiff’s law division action. Plaintiff then appealed the Court’s January 29, 2020 order. Plaintiff argued she did not sign the agreement with the Defendant which contains the arbitration provision at issue on appeal.
The trial court relied on the Supreme Court’s then-recent decision in Goffe v. Foulke Management Corporation, 238 N.J. 191 (2019). The Superior Court of New Jersey, Appellate Division disagreed with the trial court’s reliance on Goffe. In contrast to Goffe, the Plaintiff here challenges the arbitration provision of her agreement. The Appellate Court held the arbitrator cannot decide the validity of the disputed agreement until the trial court resolves the issue of fact regarding the formation of the arbitration provision. The Court was unpersuaded by the defendant’s argument which stated because the arbitration provision was contained within the agreement, which the Plaintiff challenges, the arbitrator must determine validity. The Court opined this procedure puts the cart before the horse.
This case furthers the importance of gaining mutual assent and the understanding of arbitration terms when entering into an agreement, and the possibility of the court’s intervening in lieu of an arbitrator when an issue of fact arises.
Thanks to Madeline Troutman for her contribution to this post. Please email Georgia Coats with any questions.Read More
In Weirich v Finger Lakes Land Trust, Plaintiff brought suit against the Defendant after suffering injury after falling down a steep slope in a nature preserve. Defendant, a nonprofit organization, is responsible for the conservation of Carpenter Falls through a stewardship agreement with the State Department of Environmental Conservation. The Stewardship Agreement provides the scope of activities in which Defendant is required and permitted to perform, including: “routine maintenance and rehabilitation activities on the kiosk, parking area, and trail segments.”
Plaintiff approached steep and slippery rocky terrain with no handrails and plaintiff slipped and “fell off” the cliff, and he was injured. Plaintiff filed this current action claiming the accident occurred as a result of Defendant’s negligence under the theory of premises liability.
As part of their duties, Defendant was required to maintain the kiosk area located at the entry point of the trail but was restricted to only post signage approved by the DEC. At the time of the accident, there were three “warning signs” at the kiosk area.
Defendant filed a motion for summary judgment arguing that they do not possess control over this land and therefore do not owe a duty and plaintiff assumed the risk by walking off the demarcated path.
The lower Court, as a threshold question, determined that there was no duty of care. In the case at hand, while the Court recognizes that Defendant contracted to inspect and maintain Carpenter Falls, and Plaintiff was within the zone of intended safety services, the Court ruled that Defendants did not have exclusive control of the land and that this specific injury was not foreseeable Defendant were only responsible for maintaining and removing trees and brush on the trails. The DEC expressly maintained a certain level of control within the stewardship agreement and thus the Defendant was not liable for the area where plaintiff fell.
The lower Court also ruled that the plaintiff assumed the risk by engaging in the activity of trail hiking and therefore must assume the risk inherent in recreational hiking, including obvious features of the trail, as any trail in close proximity to a cliff or rock ledge, there is an inherent danger of falling. Plaintiff was hiking and climbing rocky terrain close to a cliff’s edge and there was testimony that the change in slope elevation was sudden and without warning. However, rather than turning around, he continued. Further, the Court finds that the three signs placed at the kiosk adequately warned Plaintiffs of the inherent dangers. Therefore, the Court finds that with hiking (or even walking with sightseeing at a waterfalls) there comes inherent danger with slippery terrain, cliffs, and rocks, there comes the inherent risk of falling.
Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions.Read More
Traditionally, in New York, a pet owner is responsible for the known vicious propensities of their pets. But who is responsible when the pet in question does not belong to the owner at the time of the injury? This was addressed in the recent Court of Appeals decision in Hewitt v Palmer Veterinary Clinic, PC, N.Y.3d, 2020 WL 6163313 (2020). In this case, the plaintiff brought her cat into defendant’s veterinary clinic and remained in the waiting room to be seen. During this time, a veterinarian brought a dog who had just undergone surgery into the same waiting room. Upon seeing the cat, the dog escaped its collar and jumped at the plaintiff from behind, attempting to reach the cat.
The plaintiff alleged that the veterinary clinic had a duty to provide a safe waiting room and breached such a duty by allowing an agitated dog to enter the waiting room. Conversely, the veterinary clinic argued it had no prior knowledge of the dog’s dangerous propensities as it was not its owner and therefore, cannot be held liable.
Prior case law in New York has established that when a domestic animal causes harm, liability is determined by showing prior vicious propensities. Bard v. Jahnke, 6 N.Y.3d 592 (2006). Under the Bard rule, an animal may have vicious propensities even it behaves in a manner that would not necessarily be considered dangerous or ferocious if such behavior reflects “a proclivity to act in a way that puts other at risk of harm and such proclivity results in an injury.” This determination, specifically applicable to New York, strays from established precedent which provide that domestic animals may be dangerous under certain circumstances and owners must exercise reasonable care to prevent foreseeable harm.
With this controversial and unpopular rule, cases had yet to address, until now, whether a non-owner remains liable for injuries caused by animals when the non-owner is unaware of the animal’s vicious propensities.
The courts recent decision in Hewitt, created an exception to the Bard rule. It held that veterinary clinics have a specialized knowledge of animal behavior and can create circumstances that may give rise to a substantial risk of aggressive behavior. Therefore, veterinary clinics can be liable for failing to exercise reasonable care even without prior notice of an animal’s vicious propensities. Because this is limited to non-owners who are veterinarians, the question of other non-owners remains open for further interpretation.
The realm of animal liability continues to evolve. But with the continued popularity of owning various and sometimes odd domestic animals, it seems this area of law will continue to progress in future litigation.
Thank you to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions.Read More
In Wilson v. New York City Housing Authority, the plaintiff, a minor, allegedly was injured when he slipped and fell off a wet playground equipment on a playground owned by the New York City Housing Authority (hereinafter NYCHA). The infant plaintiff slipped and fell when he climbed on the second step of a ladder which led to monkey bars. The plaintiffs allege that a built-in sprinkler, which shot water into the air for children to play in, was located in too close a proximity to the monkey bars and that this proximity caused the wind to blow water from the sprinkler onto the equipment. The lower court denied NYCHA’s motion for summary judgment on the grounds that there was a question of fact as to NYCHA’s creation of this alleged dangerous condition.
However, on appeal, the Second Department reversed the lower court’s decision on the grounds that the manner by which the water got on the handlebars was speculative. Plaintiff at his deposition stated immediately before he went on the ladder to the monkey bars, two children who were wet from playing in the sprinkler climbed on the ladder. The Appellate Court reasoned that the wet children who preceded the infant plaintiff on the ladder, it would require impermissible speculation to conclude that the water on which the infant plaintiff slipped was caused by the proximity of the sprinkler to the monkey bars. Since there was a reason given for plaintiff’s fall, the Appellate Court ruled that NYCHA’s motion should have been granted.Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions.Read More
In Pollard-Leitch v. R & D., the Appellate Division, Second Department addressed whether the defendants – R & D Utica Realty, Inc. were the owners of the property abutting the sidewalk where the plaintiff tripped and fell.
The Supreme Court denied the defendant’s motion for summary judgment to dismiss the complaint and all cross claims asserted against it which was reversed by the Appellate Division.
Plaintiff allegedly tripped and fell on a public sidewalk next to a fenced-in parking lot owned by R & D Utica Realty, Inc. R&D then moved for summary judgment on the basis that they did not have a duty to maintain the portion of the sidewalk where plaintiff fell as they did not own the abutting property.
The Appellate Division stated that “Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property. The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none of those elements are present, “[generally] a party cannot be held liable for injuries caused by the [dangerous] condition of the property.”
R & D was able to establish that they were 1) not the owner of the property abutting the portion of the sidewalk where plaintiff fell, 2) that they did not negligently construct or repair that portion of the sidewalk and 3) cause the alleged condition to occur by some special use of the sidewalk.
As such, the defendants were granted summary judgment dismissing the plaintiff’s complaint.
This decision serves as a reminder that when sued for a defective sidewalk to first consider: did you 1) own, 2) occupy, 3) control or 4) cause the condition by special use the sidewalk? If the answer is no to all four, then you may not have a duty of care to the sidewalk at issue.
Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions.Read More
In Berkley Assurance Company v. Hunt Construction Group Inc, a Manhattan federal judge for the Southern District of New York addressed a high-profile dispute about the duty to defend or indemnify a construction firm in litigation over renovations of the Miami Dolphins’ stadium. The court ruled that the insurer rightly denied coverage to the insured construction company, Hunt Construction Group Inc., because they waited nearly three months to notify them of the underlying dispute.
Hard Rock Stadium’s owner and operator, South Florida Stadium LLC, hired Hunt in 2014 as a construction manager on a project to significantly renovate the facility. As part of the project, Hunt entered into a subcontract with Hillside Fabricators for certain design and steel-fabrication services for the stadium’s rooftop structure. During the project, a dispute arose between Hunt and Hillside concerning the scope and cost of the work that was being performed under their subcontract agreement, according to the opinion. The feud prompted Hunt and SFS to sue Hillside in October 2016 in Florida state court, seeking a ruling regarding the parties’ respective rights and duties under the subcontract agreement. In response, Hillside filed counterclaims against Hunt and SFS on March 30, 2017, alleging that Hunt was liable for breach of contract and abandonment of contract.
Hunt sought coverage from Berkley for Hillside’s counterclaims as well as SFS’ May 21, 2018, demand that the construction company indemnify it for the underlying action under the terms of their construction management agreement. The insurer denied coverage. It then filed suit in April 2019, seeking confirmation that it is off the hook for the underlying litigation due to Hunt’s alleged failure to timely report the counterclaim. Specifically, Berkley argued that Hunt did not report the underlying counterclaim to Berkley during its initial policy period, which ran from June 15, 2016, through June 15, 2017. The construction company also failed to tell Berkley about the underlying dispute when it filled out its application form to renew the 2016-2017 policy on June 1, 2017, according to the insurer. It was not until July 20, 2017, five days after the 2017-2018 policy period began, that Hunt reported the underlying claim to Berkley.
Ultimately, the court agreed with Berkley, affirming their denial of coverage due to late notice. The court stated that “[i]n short, because Hunt did not report the Hillsdale Claim until after the 2016-2017 Policy expired, it is not covered by that policy, and Berkley has no duty to defend Hunt from it.” In doing so, the court rejected Hunt’s argument that Berkley waived its right to deny coverage based on late notice since it failed to cite it as a basis in its initial disclaimer, finding that the doctrine of waiver cannot create coverage where it never existed in the first place. Moreover, the court found that SFS’s demands for indemnification arose out of the same “acts errors and omissions” making it an identical claim that could be denied on the same basis.This decision represents a win for insurers and underscores the importance of timeliness in reporting claims. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions.Read More
“Non-Payment” for an Oil Delivery is Not a “Theft,” and Thus Not Covered Under “All Risks” Policy (NY)
A New York court recently ruled, in Carlyle v. Underwriters, that a $400 million loss of crude oil was not covered under an “all risks” insurance policy, as the loss resulted from non-payment of the insured’s business partner, and not a “theft.”
In 2015, plaintiffs Carlyle Commodity Management LLC (“Carlyle”) entered into a Master Commodity Transaction Agreement with now-defunct Moroccan refinery SAMIR. SAMIR entered into agreements with various third-party suppliers to purchase oil that SAMIR would hold at its refinery. Under the Agreement with Carlyle, Carlyle would purchase the oil to keep at SAMIR’s refinery and retain a “Put Right” which would require SAMIR to purchase the oil from Carlyle. SAMIR could not use the oil Carlyle had purchased unless Carlyle consented. In practice, however, SAMIR processed the oil and sold the resulting refined product without Carlyle’s consent, but would later pay Carlyle at a later date. In August 2015, the Moroccan government seized SAMIR’s bank accounts for non-payment of taxes. At the time of the seizure, SAMIR owed Carlyle approximately $400 million in shipments of oil for which Carlyle had paid.
The issue before the court was whether the resulting loss was covered under Carlyle’s insurance policy, which covered against “all risks of physical loss or damage from any external cause.” Carlyle claimed that SAMIR had “stolen” the oil, but the court ultimately held that “Carlyle’s losses were not occasioned by the unlawful taking of the oil, but rather by SAMIR’s non-payment.” The court distinguished cases where a “pretend purchaser” absconded with the goods based on fraudulent intent and held that this was a case of simple non-payment under a business agreement, which is not a covered loss under the policy.
The decision acknowledges the limits of “all risk” policies. The policies do cover losses for theft, but New York law draws a distinction between theft and non-payment. While fraud is covered as a form of theft, a bona fide party’s non-payment in the ordinary course of business is not considered theft.
Thank you to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions.Read More