Sidewalk Shenanigans in Buffalo (NY)
In Beagle v. City of Buffalo, a plaintiff had a trip and fall on a sidewalk where the City of Buffalo had performed a cold patch (asphalt patch to fill in cracks in concrete) during winter on a gap between two sidewalk slabs. The two slabs were elevated by roots of a nearby tree (insert J.R.R. Tolkien reference here) owned by the City of Buffalo. Before the accident occurred, the City performed cold patch repair covering the open section caused by the root. However, the sidewalk slabs in controversy were still elevated, and the plaintiff tripped on them. It is settled law in New York that a municipality may require prior written notice of any defect on a sidewalk a condition precedent to any tort actions against it. The Defendant City of Buffalo moved for summary judgment contending it had no prior notice of the dangerous defect pursuant to Buffalo City Charter §21-2.
However, the New York Court of Appeals has recognized two exceptions to the prior notice rule. The first exception is where a special use of the sidewalk confers a special benefit upon the defendant, and the second exception is where the city has created the defect or hazard through an affirmative act of negligence that immediately results in the existence of a dangerous or defective condition, and not a condition that develops over time. Here, although the plaintiff did not plead the prior written notice in her Amended Complaint, the Court felt that the City of Buffalo failed to prove as a matter of law that the cold patch repair performed on the sidewalk created a dangerous condition that developed over time.
The circumstances surrounding the accident in Beagle are reminiscent of hundreds of sidewalk claims against premises owners, tenant/leasor and municipalities each year. Quite often, municipalities move for summary judgment and win based on the argument that they had no prior written notice pursuant to local statutes. Afterwards, the premises owner and tenant/leasor are left in the case because they may have had constructive notice of the dangerous defect. This case provides a clear legal analysis that can be used to show that the local municipality cannot be dismissed from a case simply because they had no prior written notice. Rather, in circumstances such as these, the local municipality must show they did not create the hazard or that the claimant was not immediately injured by the hazard they created.
Thanks to Raymond Gonzalez for his contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreJust Because A Verdict Is “Inconsistent” Does NOT Mean It’s Against the Weight of Evidence (PA)
The Pennsylvania Superior Court recently issued a refresher on the distinction between an “inconsistent” jury verdict and a verdict that is against the weight of evidence. In Avery v. Cercone, 2019 PA Super 366, No. 174 WDA 2019, the Court heard an appeal by Avery alleging that a jury’s original verdict awarding $8,500 in damages for lost wages and $0 for pain and suffering was against the weight of evidence, not merely an inconsistent verdict.
The underlying case involved a fact pattern in which Spadafora unwittingly merged the vehicle he was driving into a funeral procession and rear-ended Avery into the car in front of her. Spadafora admitted his fault at the scene and the jury found him negligent. The jury originally returned a verdict against him for $8,500 for lost wages and $0 for pain and suffering. The trial judge then instructed the jury to resume deliberations and to award Avery something for pain and suffering. The jury then returned a second verdict adding $10,0000 for pain and suffering. On appeal, Avery alleged that the original verdict awarding $0 was against the weight of evidence and therefore the only appropriate remedy was a new trial; it was not an inconsistent verdict that the judge could direct the jury to correct upon further deliberation.
In its opinion, the Superior Court explained that an inconsistent verdict is a verdict that does not clearly report the jury’s factual findings of a case and the problem appears within the four corners of the verdict slip. When an inconsistent verdict occurs, the trial court should, upon objection by a party, return the jury to deliberate further and instruct it to clarify (not reconsider) the verdict. On the other hand, a verdict that is against the weight of evidence is a verdict that shocks the conscience of the trial court in light of the evidence presented. When this occurs, it must be addressed in a timely post-trial motion by one of the parties, and a trial court should order a new trial. The Court emphasized that an inconsistent verdict is NOT a verdict that is inconsistent with the evidence; for if the evidence factors into the trial court’s decision to disturb a verdict at all, then the court is deciding a weight-of-the-evidence issue – which can only be addressed in post-trial motions and the possible granting of a new trial.
Thanks to Gregory Herrold for his contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreWhat’s Done in the Dark Doesn’t Always Come to Liability (PA)
In Andre Abney v. American Expo Corp. plaintiff Abney sued defendants American Expo Corp, Suburban Investment Corp. (“Suburban”), and Len Sammons Productions (“Sammons”) (collectively “defendants”) after he tripped over a dolly while walking through his employer’s trailer located on American Expo Corp.’s property.
American Expo Corp., who leased and operated the expo center, contracted with Sammons to put on a show at the property and Sammons hired plaintiff’s company as independent contractors. Plaintiff alleged that while packing up the trailer, it was too dark for him see and he sustained injuries while in the trailer. All defendants filed motions for summary judgment—Suburban filed separately from the others—and all motions were granted. Plaintiff appeals on the grounds that he was a business invitee and the defendants owed him a duty to protect him from dangerous conditions on the property.
Pennsylvania law states that a land owner is liable for physical harm that he causes a business invitee (visitor) under the following rules: (1) he knows or reasonably could have discovered the condition and knows the condition raises an unreasonable risk of harm to visitors; (2) he should expect that the visitors will not discover the condition or protect themselves from it; and (3) he fails to take reasonable care to protect visitors from the risk. This duty extends to independent contractors. However, there is an exception when the landowner conveys temporary possession of a portion of the property to the independent contractor and there is an obviously dangerous condition on the property.
In this case, the plaintiff knew and testified that it was extremely dark in the trailer. He was able to access the trailer because of the lights set up by American Expo Corp. However, he knew once he entered his employer’s trailer that he could not see his surroundings. He had his cell phone with him and chose not to use the flashlight feature. Ultimately, plaintiff’s problems began when he entered the trailer, which was provided by his own employer. Defendants could not be held liable for a condition that they lacked control over. Additionally, the condition was obvious to the plaintiff. The Court emphasized that plaintiff knew that he was unable to see within the trailer and proceeded to wander around anyway. Therefore, the Superior Court upheld the rulings in favor of summary judgment.
Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreConclusory Allegations of Bad Faith Against Insurer Insufficient to Survive Motion to Dismiss (PA)
Recently, in Patrick A. Kline and Sharon L. Kline v. Progressive Specialty Insurance Company, the Middle District of Pennsylvania considered whether the factual averments in the plaintiffs, Patrick Kline (“P. Kline”) and Sharon Kline’s (“S. Kline”) (P. Kline and S. Kline collectively “Kline”) complaint were sufficient to overcome Progressive Specialty Insurance Company’s (“Progressive”) partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
By way of brief background, P. Kline was involved in a motor vehicle accident with Victor Mowen (“Mowen”). At the time of the accident, Kline was insured under an auto policy issued by Progressive. Ultimately, Kline settled with Mowen for the maximum amount of Mowen’s auto insurance policy. Soon thereafter, P. Kline submitted an underinsured motorist claim (“UIM”) with Progressive, as the settlement was allegedly insufficient to cover P. Kline’s injuries. After Progressive disclaimed coverage, Kline filed the instant action against Progressive alleging claims for breach of contract, bad faith, and unfair claim settlement practices.
In support of its motion to dismiss, Progressive first argued that Kline failed to state a bad faith claim upon which relief can be granted. In pertinent part, Kline alleged in its complaint that Progressive “delayed paying [Kline its] policy proceeds for unknown reasons”, forced Kline to pursue litigation to resolve its claim, “engaged in deceptive acts”, “made false statements” to Kline “for the purposes of creating an apparent reason” to deny Kline’s claim, and “made oppressive demands” of Kline to deny payment of Kline’s claim. In consideration of 42 Pa.C.S. § 8371 through the lens of the Court’s well-established standard of review, the Court determined Kline’s complaint consisted of “bare-bones conclusory allegations” of bad faith. As the Court held the complaint failed to make any real factual averments, the Court dismissed Kline’s claim for bad faith without prejudice. Although, as a matter of law, the Court was not required to grant Kline leave to amend its complaint, the Court granted Kline leave to amend its bad faith claim since it is common practice in the Middle District of Pennsylvania for courts to permit a plaintiff’s to revise its complaint where its bad faith claim is dismissed for failure to state a claim upon which relief can be granted.
In addition, Progressive argued Kline’s claim for unfair claim settlement practices should be dismissed because neither Pennsylvania’s Insurance Practices Act (“UIPA”), nor Pennsylvania’s unfair claim settlement practices regulations allow for a private cause of action. In reliance on Pennsylvania case law, the Court agreed with Progressive’s proposition that there is no private cause of action under UIPA or for the regulations governing unfair claim settlement practices. Accordingly, the Court dismissed Kline’s unfair claim settlement practices claim with prejudice. Further, the Court also accepted Progressive’s argument that Kline’s breach of contract claim should be dismissed to the extent it seeks attorneys’ fees. In doing so, the Court reasoned that “absent express statutory authorization, clear agreement between the parties, or a clear exception”, attorneys’ fees are unavailable in a breach of contract claim, as under Pennsylvania law, litigants generally bear the responsibility for their own costs and attorneys’ fees. The Court ultimately, held that Kline’s prayer for attorneys’ fees should be stricken form its complaint. Ultimately, this case is a reminder of impact motions to dismiss can have on litigation in federal courts, and the premium courts place on well-pled complaints.
Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreA Typical Slip and Fall with an Atypical $3.64 Million Result (NJ)
In Simmons v. Staples Inc., plaintiff James Simmons was browsing for computers in a Staples office supply store. At some point thereafter, an employee nearby in the area was called away and left a box of merchandise on the ground in one of the store’s aisles. While browsing, plaintiff took a step, tripped on the box of merchandise, and fell. Plaintiff allegedly suffered herniated discs in his lumbar spine, lumbar radiculopathy, and a lumbar aggravation injury as a result of the incident.
At trial, plaintiff testified that he first experienced pain the day after his trip and fall. His pain eventually began radiating into his lower extremities and transitioned to numbness. Treatments consisted of physical therapy, epidural steroid injections, a lumbar discectomy, and a lumbar laminotomy. Despite this extensive surgical history, plaintiff continued to experience pain and numbness daily and could not tolerate the physicality of his role as a deacon to his church. Plaintiff presented two experts, a pain management doctor and a neurosurgeon, who testified his ailments were permanent.
While plaintiff’s alleged injuries and subsequent treatments are common, the jury verdict was not. After a deliberation, the Mercer County jury (with a seat in Trenton, New Jersey) awarded the plaintiff $3,500,000 in damages for pain, suffering, and loss of enjoyment of life; $52,030.01 for past medical expenses, and $96,000 for future medical expenses. Based on an 80/20 finding of comparative negligence, the net award was approximately $2,918,424.
Although Staples is currently seeking a new trial or remittitur of the damages award, arguing that the pain and suffering award of $3,500,000 is disproportionate to plaintiff’s lumbar injuries, this case serves as quite a shocking reminder that juries can be unpredictable – especially when defendants have admitted liability and make a stand solely on causation. In this case, the jury was clearly unpersuaded that plaintiff’s lumbar disc herniations were degenerative in nature and painted with a broad damages brush as a result.
Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreCourt Affirms Defense Verdict Because Plaintiff Failed to Stop at Intersection (PA)
The PA Superior Court recently denied Plaintiff’s request for a new trial following a defense verdict in which Plaintiff was found to be 70% negligent. In Matthews v. Batroney, No. 483 EDA 2019, 2019 PA Super 299, Plaintiff brought a personal injury action against Batroney after Plaintiff, who was riding a bicycle in Philadelphia, collided with Batroney’s car. Batroney testified that she stopped at her stop sign travelling eastbound but that she did not see Plaintiff riding his bicycle southbound prior to entering the intersection. Plaintiff admitted that he did not stop at his stop sign traveling southbound but claimed that he had made eye contact with Batroney prior to entering the intersection.
At trial, the jury returned a verdict finding Batroney 30% negligent and Plaintiff 70% negligent. Therefore, under Pennsylvania’s comparative negligence rule, judgment was entered in Batroney’s favor and Plaintiff was not entitled to any recovery. Plaintiff appealed and argued that the trial court erred by refusing to charge the jury on Section 3321 of the PA Motor Vehicle Code pertaining to rights-of-way for vehicles approaching or entering an intersection. The trial court refused to charge the jury with Section 3321 and stated that it did not apply to a case where there is a two-way stop and one of the vehicles did not stop. Instead, the jury was only charged with Sections 3501 (pertaining to pedacycles) and 3323 (pertaining to stop signs and yield signs) of the PA Motor Vehicle Code.
On appeal, the Superior Court noted that Plaintiff himself testified that he failed to stop at his intersection’s stop sign and that his testimony was corroborated by a disinterested witness at the scene. Thus, the Superior Court affirmed the trial court’s decision and stated that because Plaintiff does not dispute that he failed to stop prior to entering the intersection, the trial court did not err in refusing to charge the jury as to Section 3321.
Thanks to Greg Herrold for his contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreIronclad Arbitration Clause Shields Insurer (NY)
The First Department recently gave New York insurers reason to be confident in the arbitration clauses in their policies and the strength of arbitration determinations resulting therefrom in Matter of McKenna, Long & Aldridge, LLP v Ironshore Specialty Ins. Co. In this appeal the insurer, Ironshore was co-defendants with a number of entities collectively known as Eidos. The Southern District of New York held Eidos was bound by the arbitration contained in the insurance policy issued by Ironshore as an intended third-party beneficiary. Eidos’ appeal sought to reverse that finding and, alternatively, to reverse the arbitration award, arguing it was issued in manifest disregard of the law. The First Department unanimously rejected both arguments.
First, the appellate court held the dispute was clearly arbitrable, ruling that the arbitration clause referring to “any controversy, claim or dispute arising in connection with [the insurance] policy [issued by Ironshore,” reflects “such a broad grant of power to the arbitrators as to evidence the parties’ clear intent to arbitrate issues of arbitrability.”
Eidos also tried to argue the arbitration panel knew of a governing legal principle that was well defined, explicit, and clearly applicable and yet refused to apply it or ignored it altogether. The First Department ruled Eidos could not make this showing, because even though the panel considered the applicability of Delaware law, they distinguished the proposed governing precedent—meaning, that the arbitration panel may have made a mistake of law, but they did not manifestly disregard it.
This case gives fresh, and clear support for the arbitration clause used here and reinforces the extremely high standard required to disturb an arbitration award. Indeed, even an express mistake of law in and of itself would not be enough to reverse the ruling. Insurers should feel confident in their arbitration language if it resembles the language in this case, and should feel confident that the result reached in arbitration will stand.
Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreLiability Won’t Always Fall on the Property Owner in Slip-and-Fall Action (PA)
In Mary Minch and Joseph Minch v. KDG Rental Inc. et al., the Pennsylvania Superior Court found that the property owners of a rental property were not liable to the tenant couple after the wife slipped and fell on a substance on the floor.Plaintiffs Mary and Joseph Minch (“the Minches”) were leasing defendants’, Daniel and Donna Zola’s (“the Zolas”) property on a short-term basis. Defendants owned and leased the house under their corporation, KDG Rentals (“KDG”), and hired a cleaning company (“the Cleaners”) to prepare the home for the Minches visit. The Zolas had only used the Cleaners’ services once before due to a friend’s recommendation. When the Minches arrived at the home, the Cleaners were still there and told the couple that they could enter. Shortly after arriving, Minch slipped and fell on Orange Glo, a cleaning product, while exiting the bathroom and sustained injuries. She subsequently sued the defendants for negligence by vicarious liability, sued KDG Rentals and the cleaners for negligence and sued for loss of consortium for Joseph Minch. The trial court ultimately found against the Cleaners. However, the court granted the Zolas’ motion for compulsory nonsuit. The Minches filed an appeal stating the Zolas were vicariously liable for the actions of the Cleaners, the Cleaners were an ostensible agent of the Zolas, and the Zolas negligently hired the cleaners.
Ultimately, the Superior Court was not convinced by the Minches’ arguments. The Court found the Zolas to be “landlords out of possession”, which meant that they could not be liable for the injuries of third parties on the property because they did not owe them a duty. There are several exceptions to this rule, such as maintaining control over a dangerous condition, failing to disclose a known danger at the time of possession, negligent repairs, etc. However, these exceptions did not apply in this case. Additionally, the Zolas were not vicariously liable for the Cleaners because the Cleaners were independent contractors. There was no evidence that the Cleaners were employees of the Zolas, as there was no contract, the Zolas did not control how the cleaning was performed, the Zolas received an invoice for the service, the Zolas only used the cleaning services twice, and the Zolas could choose to never use them again.
Tthe Minches also argued that the Cleaners were ostensible agents of KDG and thus KDG could be held liable, even if the Cleaners were independent contractors. The Court dismissed this argument by stating that the Zolas did not present the Cleaners as employees and the fact that the Cleaners allowed the Minches into the home was not indicative of an agency relationship.
Lastly, regarding their negligence arguments, the Court remained unconvinced. The Minches common law negligence claim was not timely presented prior to nonsuit, so the claim was deemed waived. Their negligent hiring argument did not hold up because as previously stated, the Cleaners were independent contractors who were outside of the control of KDG or the Zolas.
Therefore, while Mary Minch certainly suffered an injury, the property owners could not be held liable for negligence simply because the Minches were on their property.
Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreThird Circuit Court of Appeals Holds: Clear Language Defining “Occurrence” Matters (PA)
Recently, in Sapa Extrusions Inc v Liberty Mutual Insurance Company, the United States Court of Appeals for the Third Circuit was tasked with analyzing whether, under Pennsylvania law, Sapa Extrusions, Inc. (“Sapa”), a manufacturer of “originally coated extruded aluminum profiles”, was entitled to recover from its liability insurers the cost of settling a lawsuit alleging its product was defective. Based on long-standing Pennsylvania precedent, the Court determined coverage under the policies depended on the specific language in the respective policies. The Court’s decision is of particular interest as, Bob Cosgrove, counsel for Amicus Curiae Philadelphia Association of Defense Counsel, submitted an amicus brief providing guidance on the pertinent issue on appeal.
By way of background, in 1996, Sapa and Marvin Lumber and Cedar Company and Marvin Windows of Tennessee, Inc. (collectively “Marvin”) entered an agreement requiring Sapa to abide by Marvin’s “Aluminum Extrusion Coating Specification” in its manufacturing process. Between 2000 and 2010, Sapa, in accordance with Marvin’s guidelines, sold approximately 28 million extrusions to Marvin – Marvin incorporated roughly 8.5 million of those extrusions in its windows and doors. Unfortunately, Marvin’s customers began complaining about issues they experienced with Sapa’s extrusions. Marvin, therefore, commenced a lawsuit against Sapa, alleging Sapa failed to adhere to Marvin’s specifications. After years of litigation, Sapa and Marvin finally settled the lawsuit.
During the time Sapa supplied extrusions to Marvin, Sapa was insured by eight insurance carriers under twenty-eight commercial general liability policies (“CGL”). Like all CGL policies, these policies required an “occurrence” to trigger coverage – based on the allegations in the underlying lawsuit, the carriers disclaimed coverage to Sapa. In response, Sapa commenced the instant lawsuit against all eight carriers to assert breach of contract claims and seek a declaratory judgment to recover the cost of the underlying settlement.
To ascertain whether Sapa was covered under the CGL policies, the Court relied on Pennsylvania’s “Four Corners Rule”, which provides an insurer’s duty to defend and indemnify stems from the factual averments contained in the complaint. Focusing solely on the complaint, the Court analyzed whether, inter alia, Marvin’s allegations of faulty workmanship constituted an “occurrence”, noting he CGL policies generally provided reimbursement to Sapa for “sums that [Sapa] becomes legally obligated to pay as damages because of . . . ‘property damage’ . . . caused by an ‘occurrence[]’”.
After reviewing the CGL policies in detail, the Court discovered the CGL policies used one of three definitions. The first group of CGL policies defined “occurrence”, inter alia, as an accident – these CGL policies contained the “Accident Definition”. Since Marvin’s claims in the underlying complaint stemmed from faulty workmanship, the Court held the CGL policies containing this definition did not cover such claims. Essentially, the Court determined Marvin’s allegations did not amount to an unforeseeable, “fortuitous event”.
The second group of CGL policies defined “occurrence”, inter alia, as an accident which results in property damage neither expected nor intended form the standpoint of the insured – these CGL policies contained the “Expected/Intended Definition”. The third group of CGL policies defined “occurrence”, inter alia, as injurious exposure, which results in property damage, neither expected or intended from the standpoint of the insured – these CGL policies contained the “Injurious Exposure Definition”. Unlike the Accident Definition, the Court reasoned the Expected/Intended Definition and the Injurious Exposure Definition latter required a subjective-intent standard that was not applied by the District Court. Through this standard, the Court reasoned the Expected/Intended and Injurious Exposure Definitions of “occurrence” were ambiguous. Therefore, to give proper effect to the clear language and terms of the CGL policies containing the Expected/Intended Definition and Injurious Exposure Definition, the Court remanded the matter to the District Court for further consideration.
Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions.
Read MoreProperty Owners Must Warn Contractors of Hidden Latent Defects (NJ)
The Appellate Division revisited a property owner’s duty to provide a reasonably safe working place for a hired independent contractor in Cabrera v. Fairleigh Dickinson University. In Cabrera, defendant Fairleigh Dickinson University (FDU) hired KB Electric Services, Inc. (KB) to change lights on top of its library. FDU did not warn KB of any defects. Plaintiff, an employee of KB, fell off the roof and suffered injuries allegedly the result of a dangerous condition.
Plaintiff ordinarily accessed the roof by using a KB bucket truck and wore a safety fall protection harness attached to the bucket while repairing the lights on the library roof. On the date of loss, FDU directed the plaintiff where to work and parked its own truck in the area normally occupied by the bucket truck. Plaintiff, unable to access the roof from the bucket truck, found an alternate way to reach the roof. He fell and sustained injury after leaning on a balustrade that gave way while attempting to retrieve pliers.
Discovery revealed that FDU repaired the subject balustrades before the accident and testimony elicited from an FDU representative revealed workers joint specifically caulked the area where the accident occurred. The same representative admitted FDU was aware of other issues associated with the balustrades, including deteriorating joints, waterproofing problems, mismatching caulk, as well as the aforementioned prior repairs to the top of the rails and facing joints.
FDU moved for summary judgment at the close of discovery on the basis that, although landowners owe a duty to provide a reasonably safe working place for a hired independent contractor, “the law carves out an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself.” Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 406-07 (2006). The trial judge granted summary judgment, finding FDU did not owe a duty to warn about the danger. Plaintiff appealed.
The Appellate Division reversed. While a landowner’s duty does not extend to operational hazards which are obvious and visible to the invitee and which are part of or incidental to the very work the contractor was hired to perform, Sanna v. Nat’l Sponge Co., 209 N.J.Super. 60, 66 (App. Div. 1986), the latent defect here (deteriorating balustrades) was hidden – only FDU knew about it. Additionally, it was not part of or incidental to repairing light bulbs. As a result, FDU had a duty to warn KB, and the plaintiff, about the latent defect.
Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.
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