Expert’s Questionable Report Ultimately Thwarts Summary Judgment (PA)
In deciding an appeal from the Court of Common Pleas of Philadelphia County, the Superior Court of Pennsylvania determined that summary judgment in a personal injury action was inappropriately granted in favor of defendant Consolidated Railroad Corporation (Conrail). The trial court’s conclusion that no genuine issue of material fact was created as to causation even though a belated plaintiff’s expert’s report concerning the alleged exposure to asbestos and diesel was deemed error. The plaintiff claimed that his work for the defendant exposed him to asbestos and caused him to develop stage 0 chronic lymphocytic leukemia (CLL). An expert for the plaintiff produced a report that indicated how long the plaintiff was exposed to asbestos and the lack of non-occupational sources of cancer-causing chemicals, such as cigarette smoke. Conrail filed a motion for summary judgment asserting that the expert’s report failed to provide a methodology for reaching the opinion that occupational exposure caused the plaintiff’s injury. The trial court was persuaded that the expert could not reach an opinion as to causation because it found that the report did not indicate the level or manner of exposure. The Superior Court disagreed. Instead, the Superior Court noted that the expert’s opinions were derived from the industrial report of another expert discussing plaintiff’s exposure levels in detail and providing a generally accepted methodology. The appellate court also noted that dose analysis is not required for an expert to opine as to medical causation, and drawing inferenced from published scientific literature is itself a generally accepted methodology of expert opining. However, the methodological sufficiency of the expert’s report was not the only factor recognized in concluding that there was a genuine issue of material fact; the Superior Court of Pennsylvania emphasized the special standard of proof under FELA. Citing Labes v. New Jersey Transit Rail Operations, Inc., 863 A.2d 1195 (Pa. Sup. Ct. 2004), the appellate court explained that under FELA a case should be permitted to reach the jury if the proofs justify the conclusion that employer negligence played even the slightest part in producing the plaintiff’s injury. If it is possible that the employee’s injuries may have resulted from the employer’s negligence, summary judgment is not appropriate. Anderson v. Consolidated Rail Corporation, 2023 WL 2607444 (Pa. Sup. Ct. 2023) shows us just how relaxed the standard for escaping summary judgment is for a plaintiff bringing a personal injury action under FELA. Even when the plaintiff alleges causation using an expert report that is arguably deficient, the plaintiff will have raised a genuine issue of material fact as to causation upon demonstrating the smallest likelihood that the employer contributed in the smallest way to the plaintiff’s injury. Thus, in a motion for summary judgment by a FELA defendant, a plaintiff’s seemingly inexpertly raised issue is likely still genuine. Thanks to Ben Salvatore for his contribution to this article. Should you have any questions, contact Matthew Care.Read More
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Landlord Not Liable For Repairs Unless The Lease Requires (NJ)
In McCauley vs. American Property Management Group, LLC, Plaintiff brought forth an appeal from a March 18, 2022 order granting Defendant Summary Judgment. William Marley is defendant’s principal and sole owner. Marley is employed by American Millwright and Rigging (AMR), a business that builds, repairs, and moves heavy machinery and equipment. Plaintiff worked at AMR as a mechanic and Marley was his boss. Marley claimed that AMR paid rent to defendant American Property Management Group, LLC, for the use of the property, paid the utilities, and was responsible for maintenance and repairs to the property. Plaintiff was working for AMR on defendant’s property. He and another employee were instructed by Marley to use a forklift to lift an extruder and place it on a flatbed truck. During the course of carrying out these instructions, an extruder fell over and struck Plaintiff’s leg. The area on which the forklift was operated was made of compacted gravel. AMR employees use that specific area on the property for loading activities because it is flat and free of potholes. Defendant American Property Management Group moved for Summary Judgment, claiming there as no factual dispute that AMR rented the property from defendant and performed all maintenance and repairs on the property. Defendant alleged that it did not owe Plaintiff a duty and was not liable for any injuries Plaintiff may have sustained while working on the property. The trial judge granted Summary Judgment in favor of Defendant, finding there was unrefuted testimony that AMR was responsible for the maintenance and repairs to the property. Additionally, the judge determined that the composition of the property was not a dangerous condition and that Plaintiff had not established Defendant was aware of any dangerous condition. Plaintiff appealed, asserting that the trial court erred in granting Defendant Summary Judgment because there were disputed material facts regarding the existence of a lease, the instructions to Plaintiff regarding the forklift, and whether there was a defective condition on the property. Relying on McBride v. Port Auth. of N.Y. & N.J., the Appellate Court held that the burden to make repairs falls upon the tenant in the absence of an agreement stating otherwise. In other words, in the absence of an agreement to make repairs, the landlord is under no obligation to do so. As such, the Appellate court held the facts that Plaintiff alleged were disputed were found to be immaterial and affirmed the trial court’s decision. Thanks to Steve Kim for his contribution to this article. Should you have any questions, contact Matthew Care.Read More
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One Inch Height Differential Can Be One Step Closer To Summary Judgment (NY)
When a plaintiff commences an action to recover damages for personal injuries involved in a trip and fall due to a height differential between a curb and a sidewalk, the condition must be actionable and not deemed trivial. For example, in Haber v. CVS Pharmacy, Inc., 2023 NY Slip Op 03002 (2d Dep’t June 7, 2023), the plaintiff alleged she tripped over a curb and sidewalk when walking at CVS Pharmacy, causing her to sustain injuries. Subsequently, plaintiff commenced a lawsuit against the defendant seeking to recover damages. Thereafter, after discovery concluded and depositions were held, the Defendant moved for summary judgment arguing the height differential or defect alleged between the sidewalk and the curb was physically insignificant and that the characteristics of the defect and surrounding circumstances did not increase the risk it posed. Further, Defendant relied on Plaintiff’s own testimony and photographs of the accident site, to establish the height was less than one inch, the incident occurred in the daytime hours under clear conditions and there were no crowds that obscured the plaintiff’s view of the sidewalk when she was walking on it. In cases like these, a property owner may not be held liable for trivial defects, over which a pedestrian might merely stumble or stub his toe or trip over. In determining whether a defect is trivial, the court examines factors such as the “width, depth, elevation, irregularity and appearance of the defect alongside the time, place and circumstance of the injury.” See, Trincere v. County of Suffolk, 90 N.Y.2d at 978. Here, the lower court held, and the second department recently affirmed, that the defendant’s motion for summary judgment dismissing the complaint should be granted because the defendant’s established the height differential was trivial and therefore not actionable. As such, the plaintiff’s claim was dismissed. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care.Read More
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An Issue Of First Impression For PA: Are Minor Children Bound To Arbitration Agreements Signed On Their Behalf?
In Santiago v. Philly Trampoline Park LLC, the Superior Court of Pennsylvania was tasked with deciding an issue of first impression in the state: whether a parent’s role as a natural guardian entitles that parent to bind their minor child to an arbitration agreement and waive that child’s right to seek redress for injuries in a court of law. Santiago v. Philly Trampoline Park, LLC., 291 A.3d 1213, 1216 (Pa. Super. Ct., 2023). The case involved several parents bringing separate claims against the defendant, Sky Zone, a Philadelphia trampoline park. Id at 1217. In 2019, a mother and his two daughters visited Sky Zone and signed a “Participant Agreement, Release and Assumption of Risk” (the “Agreement”). Among other things, the agreement provided that “if I or any of my children are injured in any way, this waiver prevents and prohibits any recovery of money from any Sky Zone related entity.” After one of the children was injured at the facility, her father filed a complaint on behalf of his child. Sky zone moved to compel the arbitration agreement, signed by the other parent, contending that the Agreement was a valid agreement that both the parents and child were within its scope. The Court noted that as a general rule of contract law, only the parties to an arbitration agreement may be compelled to arbitrate. That said, a party can still be compelled to arbitrate under an agreement, regardless of whether she signed it, if common law principles of agency and contract support such an obligation on her part. Whether an agency relationship exists is a question of fact, the burden of proof weighing on the party asserting the agency relationship. An agency relationship may exist by: 1) express authority; 2) implied authority; 3) apparent authority; and/or 4) authority by estoppel. Relevant to this case is “apparent authority,” which exists where the principal, “by word or conduct” causes people with whom the agent deals to believe that the principal has granted the agent authority to act. The focus is on the principal’s conduct to determine whether an agency relationship exists, for the purposes of this analysis, the purported agent’s conduct is irrelevant. After analyzing the issue of whether an agency relationship existed as between spouses through apparent authority and finding one did not exist because the principal had no interaction with Sky Zone, the court moved to the novel question of this case. . At the outset, the court acknowledged that the minor children could not have entered into the arbitration agreement themselves, as minors lack the capacity to contract in their own right. Id. As such, the court held that minors also lack the capacity to “grant express authority to an agent to contract on their behaves, rendering any such resulting contracts voidable.” The court held that, “Natural guardianship confers no inherent right to intermeddle with the property of the minor child, and the natural guardian has no inherent authority to demand or power to receive, hold or manage the minor’s property unless the natural guardian has also been appointed as guardian of the minor’s estate.” Id. This is an interesting decision that we expect to be appealed. Thanks to Hannah Garber for her contribution to this article. Should you have any questions, contact Matthew Care.Read More
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New Claims At The End Of Discovery Are Insufficient (NY)
In Smith v. 3173 Gas Corp. (2d Dept. 2023), the plaintiff sustained injury when she slipped on an entrance/exit ramp as she left a gas station. It was established during testimony that it had been raining at the time of the accident and the ramp was wet. After depositions were completed, but before the Note of Issue was filed, the defendant moved for summary judgment arguing that he could not be held liable because it was still raining at the time of the accident [Derosa v. Zaliy, 189 A.D.3d 1355 (2d Dept. 2007)]. Plaintiff’s counsel then submitted an amended bill of particulars alleging new claims that the ramp itself was defective. The trial court granted defendant’s motion, and plaintiff appealed, alleging that the amended claims were enough to present to a jury. The Second Department affirmed the trial court’s decision, holding that summary judgment in favor of the defendant was proper because the ramp was not defective since it was wet, and it was still raining when the plaintiff fell [Medina v. Sears Roebuck & Co., 41 A.D.3d 798(2d Dept. 2007)]. The Second Department further held that although plaintiff’s amended bill of particulars was proper since it was served prior to the filing of the Note of Issue, it nonetheless failed to provide triable issues of fact to sustain a claim against the defendant. Plaintiff submitted an expert’s report which failed to show how the condition of the ramp itself was the proximate cause of plaintiff’s fall, and plaintiff’s affidavit not only contradicted his prior deposition testimony, but also failed to establish that the ramp itself was the proximate cause of plaintiff’s fall. This case highlights a litigation strategy that is seen from time to time in negligence torts. A plaintiff will proceed through discovery and depositions, and if there is strong evidence to establish a viable defense at trial (or enough evidence for a strong argument on dismissal via summary judgment), then plaintiff will allege new claims or theories on the accident. Of course, plaintiff has the right to amend his bill of particulars before filing the Note of Issue, but often times, it is used as a tactic to create triable issues of fact to defeat summary judgment proceedings and sustain the viability of a claim. The defendant in this case properly highlighted the fact that plaintiff’s new allegations and theories of the accident contradicted her prior testimony and even then, still could not sustain her claim. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, contact Tom Bracken.Read More
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by Suzan CherichettiJune 2, 2023 Personal Injury, Summary Judgment, Workers Compensation, Employment, Pennsylvania0 comments
Supreme Court Rejects Narrowing Of Employer Immunity From Tort Liability, Under the Workers’ Compensation Act (PA)
In the recent case of Franczyk v. Home Depot Inc., the Supreme Court of Pennsylvania found that when relief in the form of workers’ compensation is available for a workplace injury, the exclusivity provision of Pennsylvania’s Workers’ Compensation Act (“WCA”), bars employees from also seeking tort relief against their employer. Plaintiff-Franczyk suffered a dog bite, from a customer’s dog, while working at Home Depot. Franczyk was instructed by her employer not to have any further interaction with the offending customer on the day of the incident. She was ultimately diagnosed with injuries requiring surgery and claimed and received workers’ compensation under the WCA. Franczyk filed suit against Home Depot, alleging that by preventing her from investigating and receiving necessary contact information from the customer, the store “denied her the opportunity to file a third-party suit against the dog owner.” Home Depot moved for Summary Judgment on the grounds that they were immune from liability under the exclusivity provision of the WCA. This provision states:- 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party
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Fraudulent Joinder To Retain State Jurisdiction Denied By Federal Court Of Appeals (PA)
In Williams v. John Middleton Company, the Third Circuit Court of Appeals recently issued an opinion instructive as to what might make for a fraudulent joinder of a defendant for the purposes of avoiding federal court. In the case, plaintiff filed a products liability action after allegedly being injured from attempting to light a cigar/cigarillo which resulted in an explosion. Of the four defendants in the case, two were residents of Pennsylvania and two were not. One of the non-Pennsylvania defendants removed the case to federal court, asserting that the two Pennsylvania defendants were fraudulently joined and that the federal court therefore had “diversity jurisdiction” over the case. The plaintiff subsequently filed to remand the case back. to Pennsylvania state court. The federal court’s review of joinder law recounted that, in a case with defendants who have the same residency as the plaintiff, a defendant who does not have that same residency may still remove the case to a federal court if “it can establish that the non-diverse defendants were ‘fraudulently’ named or joined solely to defeat diversity jurisdiction.” Williams v. John Middleton Co., No. CV 23-1158, 2023 WL 3393413, at *1 (E.D. Pa. May 11, 2023) (quoting In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006)). Likewise, if there “is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant[s], or no real intention in good faith to prosecute the action against the defendant[s] or seek a joint judgment” then joinder is fraudulent. Id. Despite focusing on the plaintiff’s complaint and assuming that all allegations were true, and without deciding any merits of the case, the federal court decided that the 2 defendants were indeed fraudulently joined and thus denied the plaintiff’s motion to remand. To make this decision the federal court noted that it did however have the ability to look beyond the pleadings and consider other indicators of fraudulent joinder, such as affidavits presenting “undisputed facts.” Id at 2. The federal court found that the third defendant, who admitted to owning the premises, which in turn was leased to another company which manages a gas station on the property, could not be held liable for the alleged defective cigarillos or lighter, because it was merely a real estate holding company and the contention that it “manufactured, or distributed” the cigarillo or lighter was not supported by the records. Id. at 3. Thus, the court concluded that there was “no reasonable basis in fact or colorable ground supporting” the claims of the plaintiff. Id. The third defendant was accordingly dismissed from the case. The fourth defendant was likewise dismissed from the case, though for a different reason. Simply put, the fourth defendant was found to have been misidentified by the plaintiff, and the plaintiff’s records indicating similarly named entities therefore did not contradict the defendants’ assertions that the fourth defendant had nothing to do with the case. There are two important reminders to be taken from the federal court’s decision about fraudulently joined defendants: (1) an owner of a premises which sells products is, not necessarily, part of the manufacture and distribution of those products and therefore might be fraudulently joined; and (2) having the same, or a similar name, to an entity which would be a proper defendant certainly does not mean that one is itself a proper defendant, and any such joinder might be fraudulent. Thanks to Ryan Hunsicker for his assistance in this post. Should you have any questions, please contact Tom Bracken.Read More
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Summary Judgment On Material Misrepresentation Not Granted Due To “conclusory” Evidence Without Supporting Documentary Evidence (NY)
The Supreme Court of New York Appellate Division, Second Department recently affirmed an order from the Supreme Court, denying a plaintiff-insurer’s motion for summary judgment, holding that the insurer failed to establish that the insured made a material misrepresentation as a matter of law where the insurer produced only “conclusory” testimony from an underwriter and did not produce supporting documentary evidence regarding the insurer’s underwriting practices. The action involves plaintiff Union Mutual Fire Insurance Company (“Union Mutual”), who brought an action against defendant CMN Props., LLC (“CMN”) seeking a declaration that the commercial insurance policy it issued to CMN was void ab initio and that Union Mutual was not required to defend or indemnify CMN in an underlying personal injury action. Union Mutual alleged that the policy was void ab initio because during its investigation of the underlying claim, it discovered that certain tenants residing at the premises owned by CMN were more than 60 days late on their rental payments at the time CMN applied for the policy—a fact which CMN did not disclose on its application. Union Mutual alleged that CMN’s misrepresentation on its application was material as a matter of law, as Union Mutual would not have issued the policy if CMN had disclosed the truth. The Second Department affirmed the trial court’s denial of Union Mutual’s motion for summary judgment, finding that Union Mutual had failed to eliminate triable issues of fact as to whether CMN’s misrepresentation regarding tenants in arrears constituted a material misrepresentation such that Union Mutual would not have issued the same policy if that information had been disclosed in the application. The Second Department noted that to establish materiality as a matter of law, an insurer must present clear and substantially uncontradicted documentation concerning its underwriting practice, which can include underwriting manuals, bulletins, or rules pertaining to similar risks. Those materials must show that the insurer would not have issued the same policy if the correct information had been disclosed in the application. In this case, Union Mutual’s affidavit and deposition testimony from a chief underwriter did not identify either a written underwriting policy regarding risks with tenants in arrears or any specific applicants with similar histories that were denied coverage. The Second Department found the underwriter’s affidavit and deposition testimony to be conclusory and unsupported by documentary evidence, and therefore insufficient to establish materiality as a matter of law. Insurers must demonstrate through underwriter’s testimony that it would not have issued a policy if the correct information had been disclosed in an insurance application as produced AND not that materiality as a matter of law requires more support. It is imperative n insurer creates and maintains clear records of its underwriting practices, as such records may later be the dispositive factor in a coverage dispute. Thanks to Erin Gallagher for her assistance with this article. You should have any questions, please contact Tom Bracken.Read More
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Unseen Pedestrian Knocked Down Granted Summary Judgment (NY)
In the matter of Beityaaghoob v. Klein, 2023 NY Slip Op 02488 (2023), plaintiff brought suit to recover for personal injuries when he was struck as a pedestrian by a vehicle driven/owned by defendants. Plaintiff was denied summary judgment pertaining to liability but appealed. Generally, a violation of the Vehicles and Traffic Law constitutes negligence per se, absent some extenuating circumstances, making most collisions an uphill battle to defend. In the underlying matter, the Second Department made sure to advise all drivers that they are under an obligation to properly use all of their senses. Plaintiff was struck in the middle of three lanes while he was crossing from the right side of the road. Although defendant testified at deposition that he never saw the plaintiff before the collision, in fact defendant was under the initial impression that he “struck a tire or something.” adding that the first time he saw plaintiff was when he was laying on the ground. The court found this argument unavailing, and practically deemed it an admission of liability. Ultimately, they overturned the lower court’s ruling and granted plaintiff summary judgment on liability. This holding raises an interesting question, primarily, how does one defend against an accident when the plaintiff darts into the road, causing the defendant to not see them before impact, when all they must say at deposition is that they “gave the driver ample time to notice them before they crossed.” The holding is a tough standard, and places the onus on the driver to do everything within their power to avoid an accident. Thanks to Christopher Palmieri for his assistance with this article. Should you have any questions, please contact Tom Bracken.Read More
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by Brian GibbonsMay 30, 2023 New Jersey, New York, News & Events, Of Interest, Pennsylvania0 comments
WCM Welcomes A New Class Of Summer Associates
WCM’s Summer Associate program welcomes a new crop of law students for the Summer of 2023. New Jersey Jordan Davis is a 2L at Widener University Delaware Law School. Jordan is a graduate of St. Joseph’s University with a degree in political science. Prior to joining WCM, Jordan was a paralegal for a Philadelphia personal injury law firm. Susan Derasmo is a 3L at Rutgers Law School and a member of Rutgers’ Computer and Technology Law Journal. Susan is a graduate of Elon University with a degree in policy studies and strategic communications and earned a masters in higher and postsecondary education from Teachers College, Columbia University. Prior to joining WCM, Susan interned as a judicial clerk in Monmouth County Superior Court and before that was a legal research assistant in the Office of General Counsel, Teachers College, Columbia University. Matthew Staniloff is a 3L at Rutgers Law School and a member of the Entertainment, Arts, and Sports Law Society. Matthew is a graduate of the University of Victoria in British Columbia, Canada with a degree in psychology. Prior to joining WCM, Matthew participated in a variety of internships, including a legal intern with a New York personal injury law firm and a judicial intern with the United States Bankruptcy Court for the District of New Jersey. Matthew is an avid hockey fan, having worked part time for the Victoria Grizzlies while in undergrad. New York Jordan Joachim-James is a 3L at Fordham University School of Law and a member of the Environmental Law Review. Jordan is a graduate of Fordham University with a degree in sociology. Prior to joining WCM, Jordan interned with Manhattan Legal Services, Bronx Legal Services and with the Industrial Court of Trinidad and Tobago in Port of Spain, Trinidad. Jacob Popeck is a 3L at Fordham University School of Law and a member of the International Law Journal. Jacob is a graduate of SUNY Binghamton with a degree in political science and philosophy, politics, and law. Prior to joining WCM, Jacob participated in a legal extern with Housing Conservation Coordinators and interned with Travelers, Broome County District Attorney Office, and a well-known New York asbestos firm. Jacob is an avid Rangers and Yankees fan. Seamus Rooney is a 3L at Fordham University School of Law and a member of the Environmental Law Review. Seamus is a graduate of Rowan University with a degree in philosophy and world religions. Prior to joining WCM, Seamus was a legal fellow for a Philadelphia law firm and interned with the Gloucester County Clerk’s Office and Gloucester County Surrogate Court in New Jersey. Corey Weisfeld is a 3L at Brooklyn Law School and a member of the Entertainment and Sports Law Society. Corey is a graduate of SUNY Binghamton with a degree in philosophy, politics, and law. Prior to joining WCM, Corey worked as a paralegal for a personal injury law firm on Long Island and interned with the Nassau County District Attorney’s Office. Pennsylvania Allen Dejewski is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor. Allen is a graduate of Temple University with a degree in economics. Prior to joining WCM, Allen was a judicial intern with the Philadelphia Court of Common Pleas. Allen is a former football player and an Eagles enthusiast. Hannah Garber is a 2L at Temple University Beasley School of Law. Hannah is a graduate of Arcadia University with a degree in politics, government, and law. Prior to joining WCM, Hannah interned with the Montgomery County Public Defender’s Office and worked as a crisis counselor. Gianna Hroncich is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor. Gianna is a graduate of Lafayette College with a degree in government and law. Prior to joining WCM, Gianna was a law clerk for a Florida law firm and paralegal at a New York law firm. Gianna is a beam gymnast champion. Nicolas Ozorowski is a 3L at Villanova University Charles Widger School of Law and a member of the Moot Court Board. Nicholas is a graduate of the University of Massachusetts Amherst Commonwealth Honors College with a degree in political science. Prior to joining WCM, Nicholas interned with Fanatics and was a paralegal for a Philadelphia real estate firm. Nicholas is a distance runner. Benjamin Salvatore is a 3L at Rutgers School of Law and a member of the Law Review. Benjamin is a graduate of Rowan University with degrees in mathematics and political science. Prior to joining WCM, Benjamin was a judicial extern for the USDC for the District of New Jersey and interned with Rutgers Civil Practice Clinic – Veterans Advocacy Program.Read More
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