Author: Georgia G. Coats

Touch Football Turns Into Trip Football And Leads To School Liability (NY)

In Deegan v. St Patricks Church at West Neck, plaintiff, who at the time of the accident was a fifth-grade student attending defendant’s school, was injured when he fell while playing touch football in the parking lot during recess. Plaintiff alleged that defendant negligently failed to supervise plaintiff and was negligent in maintaining the subject premises, allowing a dangerous condition to exist. The dangerous condition was the placement of Belgian blocks (similar to cobblestone) upon certain portions of that area, where students were permitted to play touch football

Defendant moved for summary judgment on the grounds that plaintiff was unable to identify the cause of his fall and that he assumed the risk of injury when he participated in the activity and he played touch football in the parking lot almost every day during recess that fall prior to the accident. Plaintiff argued that a 10-year old child cannot assume the risk of participating in a sport where the risks are unreasonably increased. The lower court denied defendant’s motion.

The Appellant Division Second Department upheld the lower Court’s decision stating “schools are under a duty to adequately supervise the students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.”  Further, the court held that “participants in sports or recreational activities, are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced.” The location of the concrete blocks in the area where the students would play was deemed a dangerous condition.

Here, defendant failed to make any showing as to whether it adequately supervised the students during recess and whether it was foreseeable that an injury would occur by permitting students to play touch football near the Belgium blocks. Moreover, a triable issue of fact remained as to whether allowing students to play touch football near the concrete blocks enhanced the danger and produced a foreseeable risk of injury.

Thanks to Paul Vitale for his contribution to this post.  Please email Georgia Coats with any questions.

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Constructive Notice an Issue in Premise Liability Case (NJ)

In Jackson v. Shoprite, the plaintiff allegedly suffered injuries after slipping and falling due to shampoo on the floor in a Shoprite store.  Video footage of the incident captured a plastic bottle of shampoo falling to the floor, and then being placed back onto the display by several customers.  Three minutes later, the plaintiff suffered her fall.  The parties agreed that the plaintiff fell due to a quarter-size dollop of shampoo from the bottle that had just fallen from the shelf.

Defendant Shoprite was dismissed from the case after filing for summary judgment. In that motion, Shoprite argued that they did not have actual or constructive notice of the shampoo on the floor.

The plaintiff appealed, contending that whether three minutes was sufficient to provide notice of the spill was a genuine issue of material fact for the jury.  The Appellate Court disagreed, noting that plaintiff offered nothing to suggest that those three minutes during which the shampoo remained on the floor provided the store with a reasonable opportunity to discover and remove the hazard.  This case confirms that the mere happening of an accident is not enough to succeed on a premise liability claim, and a plaintiff must establish actual or constructive notice of the condition.

Thanks to Heather Aquino for her contribution to this post.  Please email Georgia Coats with any questions.

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No Negligence Needed: Court Upholds Broad Application of Additional Insured Endorsement (NY)

In Fireman’s Fund Ins. Co. v State Natl. Ins. Co., the New York Appellate Division, First Department addressed the issue of how to construe broadly worded additional insured endorsements.  The coverage dispute arose out of an underlying slip and fall personal injury that occurred on a newly refinished catwalk passageway.  While navigating this passageway, Mary Jane Schudde fell and sustained injuries due to the color of the floor surface which made it difficult to perceive the change in elevation and caused her to trip.

She sued her building and management company, Windsor and Argo, for negligence.  Windsor and Argo in turn commenced a third-party action for contractual indemnification against Upgrade, the contractor that refinished the passageway.  The building had contracted with Upgrade to waterproof the passageway, but Upgrade did not choose the surface color. Upgrade’s insurance policy with State National contained a blanket additional insured clause which provided coverage to Windsor and Argo “with respect to operations performed by or on behalf of” Upgrade and stated that it was primary for damages to any additional insured arising out of Upgrade’s operations.  On the other hand, Windsor and Argo’s insurance policy, issued by Fireman’s Fund, provided that coverage was excess when its insureds, Windsor and Argo, have other primary insurance available.  On this basis the Supreme Court held that Windsor and Argo were additional insureds because the accident “arose out of” Upgrade’s operations of painting the steps where the injury occurred.

On appeal, defendant argued that Windsor and Argo were not additional insureds because there was no finding of negligence against Upgrade since Upgrade did not choose the ill-fated color and thus did not proximately cause the accident.  But the First Department did not buy it.  The court held that even though Upgrade was not at fault for the injury, the accident still “arose out of” Upgrade’s operations and therefore it fell within their policy’s broadly worded additional insured clause.

This decision underscores the importance of policy drafting on the part of insurers, especially for insurers of contractors and subcontractors, since New York Courts will broadly construe additional insured clauses even without a finding of negligence by the contractor.

Thanks to Andrew Debter for his contribution to this post.  Please email Georgia Coats with any questions.

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First Department Ruling for McGraw Hill Constitutes Blow to Insurers (NY)

In a short, yet significant decision, the Appellate Division First Department in McGraw-Hill Educ, Inc v Illinois Natl Ins Co. reversed a trial court order and held that several insurers must fund the defense of McGraw-Hill Education, Inc. in connection with numerous underlying actions alleging that McGraw Hill violated the underlying plaintiffs’ rights by publishing copyrighted images.  McGraw Hill had entered into licensing agreements with third-party photographers and stock photography agencies, which limited the parameters of the images’ usage.  The lawsuits alleged that McGraw Hill’s usage of the images in their textbooks and other publications exceeded the scope of these agreements.

McGraw Hill sought a defense from its insurers, who denied coverage on the basis of policy exclusions for claims arising out of a contract and claims arising out of intentional violation of law.  The insurers further argued that the claimed losses were not fortuitous (and were thus not covered) because McGraw Hill’s actions constituted willful behavior.  They argued that McGraw Hill’s management were well-aware of the legal risks in publishing the photographs for years prior to the lawsuits being filed.  At the trial court level, the case was before Judge Ostrager of the Commercial Division, which is notable insofar as Judge Ostrager authored the leading treatise on insurance coverage.  Judge Ostrager first found that there were questions of fact as to whether the exclusions barred coverage, especially regarding the intentional wrongdoing and fortuity issues, and thus denied the parties’ motions for summary judgment.

On appeal, the First Department reversed, granted summary judgment for McGraw Hill, and held that the insurers had a duty to defend in the underlying lawsuits.  The court first found that the exclusions for claims arising out of a contract did not apply because, although the phrase “arising out of” only requires “but for” causation, the claims could have been brought absent the licensing agreements.  In other words, the violation of the agreements was not the “but for” cause of the lawsuits.

The remaining exclusion barred coverage, in part, for claims arising out of intentional violation of law or gaining profit or advantage to which the insured is not legally entitled.  However, the policy’s definition of “damages” barred coverage only where it is “judicially determined” that the violation was intentional.  The court held that this specific clause covered over the general provision in exclusion G.  Thus, because there was no such judicial determination, and because that issue could not be litigated in the coverage action, that exclusion did not apply as a matter of law.

Finally, the court held that the fortuity doctrine did not apply to bar coverage.  The court expressly found that because the policy was intended to provide coverage for claims arising out of “infringement of common law or statutory copyright”, invoking the fortuity doctrine “would render that portion of the policy illusory.”  Significantly, the court did not address the insurers’ rebuttal argument that this would not render the policy illusory because the policy would still provide coverage for non-intentional violations of copyright law.

The ruling not only overturned a decision authored by one of the leading minds of insurance jurisprudence, but did so in questionable fashion.  In particular, the court’s failure to acknowledge that copyright violations could be committed negligently is a significant win for insureds and a blow to the fortuity doctrine.

Thanks to Doug Giombarrese for his contribution to this post.  Please email Georgia Coats with any questions.

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2nd Dept. Sides with the Medical Records (NY)

In Wettstein v. Tucker, the Appellate Division, Second Department addressed whether the two plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of a motor vehicle accident. The defendant moved for summary judgment to dismiss the complaint on the ground that neither plaintiff sustained a serious injury.

Plaintiff Timothy alleged injuries to his spine and left shoulder, and plaintiff Michelle alleged injuries to the cervical region of her spine as a result of the subject motor vehicle accident.

The Supreme Court, Nassau County granted the defendant’s motion for summary judgment, which was affirmed by the Appellate Division. The Appellate Division stated that the defendant submitted medical evidence that the plaintiffs’ injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (including under the 90/180 – day category) and that each plaintiff suffered from pre-existing conditions.

This decision serves as a reminder that when making a summary judgment motion on the grounds that the plaintiff did not sustain a serious injury that it is imperative to submit medical records with your motion to prevent the plaintiff from raising a triable issue of fact. Additionally, the medical records should try to focus on the severity of the alleged injuries, and if the plaintiff suffers from any pre-existing conditions.

Thanks to Corey Morgenstern for his contribution to this post.  Please email Georgia Coats with any questions.

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Labor Law Liability Imposed Against Catholic Church (NY)

New York’s Labor Law, section 241(6), imposes a nondelegable duty upon an owner and general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor.  Ortega v Roman Catholic Diocese of Brooklyn is a prime example of how strict this rule is. In that case, plaintiff was working as a concrete laborer at property owned by Roman Catholic Diocese of Brooklyn.  He was injured when the front leg of a three-wheeled compressor gave way, causing a portion of plaintiff’s ring finger to become severed by the bent leg of the compressor.  At his deposition, plaintiff testified that the locking mechanism that served to stabilize the front leg and wheel of the compressor had broken about two months before the accident.  To remedy it, plaintiff’s boss replaced the broken component with an ordinary screwdriver.  The accident occurred when the screwdriver popped out of the locking mechanism as he and coworkers were attempting to the push the compressor up a driveway. The Appellate Division, 2^nd Judicial Department, overruled the Kings County trial court’s denial of summary judgment sought by plaintiff.  It held that there were violations of the Labor Law, and therefore the owner of the property, Catholic Diocese, was liable for said violations pursuant to Labor Law section 241(6).  The fact that Catholic Diocese had nothing to do with fixing the compressor was irrelevant, for the Labor Law imposes a nondelegable duty on landowners to provide a safe working place for workers. Thanks to Mike Noblett for his contribution to this post.  Please email Georgia Coats with any questions.Read More

Keep Your Eye On The Ball: Soccer Player’s Concussion Dismissed Against Athletic Department (NY)

In Calderone v Molloy College, plaintiff was a student-athlete who played for Molloy College’s soccer team. During a matchup, plaintiff took a soccer ball strike to the head and he suffered a concussion. Plaintiff stayed in the game and claimed that his injuries were exacerbated by continuing to play and brought suit against the athletic department and the referees stating that they should have seen the symptoms of the concussion and removed him from the game. Defendants argued that summary judgement should be granted under primary assumption of risk doctrine, as the risks of a sporting activity are known by or perfectly obvious to a voluntary participant. Plaintiff alleged that the doctrine did not apply because the defendants acted recklessly or negligently in leaving the plaintiff in the game. The lower court granted defendants’ motions and the plaintiff appealed.

The Appellate Division Second Department upheld the lower court’s decision under the theory the “risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” The Court stated that there was no evidence that plaintiff had sustained a concussion or showed any signs of a concussion – as he remained in the game. Moreover, a soccer ball to the head causing a concussion is reasonable and calculable risk in playing soccer.

Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions.

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Spoliation Of Evidence Is No Back Door To Summary Judgment (NY)

In Temiz v TJX Cos, Inc., the Appellate Division parsed through the language of a trial court’s adverse inference charge, lessening the scope of the ruling to address an inappropriate consequence of the ruling- a de facto summary judgment award.

In Temiz, the plaintiff filed a personal injury lawsuit in New York County Supreme Court alleging that she fell as a result of a slippery substance on the floor.  At one point, the defendant had video footage of the area in question, however it was no longer available.  The plaintiff filed a motion to strike the defendant’s answer for spoliation of evidence from failing to preserve the video footage, and the trial court granted the motion to the extent of directing an adverse inference charge at trial- specifically, the Court held that the jury be charged as follows:

“If the footage was preserved and produced, it would have shown that a slippery substance was on the floor long enough for the defendant to be aware of the condition and therefore the defendant had constructive notice of the slippery condition at the time plaintiff fell.”

The defendant appealed to the First Department Appellate Division, and upon review, the Appellate Division held this jury charge was inappropriate because it required, rather than permitted, the jury to draw an adverse inference, which is tantamount to a summary judgment liability award in favor of the plaintiff.  The Appellate Division relied upon a 2015 Court of Appeals case, Pegasus Aviation I, Inc. v Varig Logistica S.A.,26 NY3d 543 (2015), that holds, if an adverse jury charge is permissive, it will be held as appropriate and not akin to granting summary judgment.

The Appellate Division directed that a new permissive adverse inference was required.

Thanks to George Parpas for his contribution to this post.  Please contact Georgia Coats with any questions.

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Plaintiff’s Hail Mary to Overturn Decision Is Denied (NY)

In Ninivaggi v. County of Nassau, the 14 year old plaintiff allegedly was injured when he and a friend were playing catch with a football on the premises of an elementary school owned by the defendant Merrick Union Free School District.  The injury occurred when the infant plaintiff stepped into a “depression” or “hole” on the grassy field, lost his balance, and fell.  The depth of the depression was variously described by the plaintiffs as being two-to-three inches, three-to-four inches, and five inches.

The plaintiff had previously played on the field, and admitted that he was familiar with the condition of the field. After discovery was complete, the district moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that the plaintiffs’ claims were barred by the doctrine of primary assumption of risk. The Supreme Court granted the district’s motion. The plaintiffs appeal.

The Appellate Division Second Department affirmed the decision pursuant to the doctrine of primary assumption of risk. The Court held the doctrine applies to inherent risks related to the construction of the playing field or surface and “encompasses risks involving less than optimal conditions”

Here, the district established its prima facie entitlement to judgment as a matter of law on the basis of primary assumption of the risk. The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field. Moreover, the infant plaintiff’s testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed. The Court found a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field

However, there was a lengthy dissent in this matter. Here, the dissent focused on the turf itself where the threshold question with respect to any premises liability cause of action is whether the owner or possessor of the land (or building) breached the duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. Because the plaintiff stated there were depressions in the field and the defendant knew or should have known of them, their motion should have been denied. The Court stated “[E]vidence was presented from which it could be concluded that the District failed to even attempt to properly maintain the field to ensure that it was not hazardous to the children and members of the community that were welcomed to play on it. What incentive does the District have to ensure that future plaintiffs are not similarly injured from its alleged failure to provide a safe ballfield upon which the children from Merrick can play.

Although the defendants won on both the state and appellate level, there is potential with this dissent that the Court of Appeals would take up this matter.

Thanks to Paul Vitale for his contribution to this post.  Please email Georgia Coats with any questions.

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Store Not Responsible For Shoppers Overflowing Cart (NY)

In Aupperlee v. Restaurant Depot, LLC, the Appellate Division reversed a summary judgment denial, after a jury trial, and dismissed a lawsuit after considering a legal argument raised for the first time on appeal.

On December 19, 2012, the plaintiff was a customer at Restaurant Depot when she was knocked to the floor by a U-Boat shopping cart, stacked high with items, being pushed by another customer.  The plaintiff filed a lawsuit naming Restaurant Depot as a defendant.  The plaintiff’s Complaint alleged that Restaurant Depot was negligent in failing to monitor its customers’ use of the U-boat shopping carts and, more specifically, in failing to require customers to refrain from loading the carts over a certain height.

Restaurant Depot moved for summary judgment dismissing the Complaint, but Queens County Supreme Court denied the motion, and a trial was held.  At the close of the trial, the jury found Restaurant Depot 70% liable in the happening of the accident.

On appeal to the Second Department Appellate Division, Restaurant Depot argued that its summary judgment motion should have been granted because it had no duty to control the conduct of another customer, specifically the customer that struck the plaintiff with the shopping cart.

The Appellate Division noted that this argument was not made in the summary judgment motion but, nevertheless, considered it on appeal.  The Appellate Division held that although the defendant has raised this contention for the first time on appeal, “we may consider it . . . because the existence of a duty presents a question of law which could not have been avoided if brought to the Supreme Court’s attention at the proper juncture.”

Addressing the issue of legal duty, the Appellate Division ruled that in some instances the duty to keep a premises in a reasonably safe condition may extend to controlling the conduct of third persons who frequent or use the property.  But made clear that “this duty is, however, not limitless.”

In assessing the facts of the case, the Appellate Division decided summary judgment should have been granted because “an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” and the Restaurant Depot did not have control of the customer’s actions.

Thanks to George Parpas for his contribution to this post.  Please email Georgia Coats with any questions.

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