Litigation

Co-Owners Of Property Are Indispensable Parties In A Premises Liability Action (PA)

The Superior Court of Pennsylvania recently addressed whether co-owners of property as tenants in common are considered indispensable parties in a premise liability action. In Simone v. Alam, the Superior Court affirmed the trial court’s dismissal for failure to join an indispensable party, the co-owner of the property. Nicole Simone rented a unit from the building owned by Mohammed Zakiul Alam. Icy and snowy conditions had accumulated on the landing and walkway beneath the staircase of the property due to broken rain spouts, causing Simone to slip on a staircase. Simone sued the property owner, Alam, for negligence. However, the premises were owned jointly by another co-owner as tenants in common. Alam filed a motion to dismiss for failure to join the co-owner of the premises which was granted by the trial court. In 2015, the Pennsylvania Superior Court stated that “a party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights”. Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 29 (Pa. Super. 2015). The Supreme Court of Pennsylvania has addressed the issue of tenants in common as indispensable parties in the past. In the 1949 case Minner v. Pittsburgh, the court determined that when a party alleges negligence for reasons having to do with ownership of real estate held by tenants in common, each of the co-owners is required to be joined. Minner v. Pittsburgh, 69 A.2d 384, 387 (Pa. 1949). Minner has been relied upon for issues dealing with other co-owners of real estate in negligence cases, specifically joint tenants with a right to survivorship. Moorehead v. Lopatin, 445 A.2d 1308 (Pa. Super. 1982). Accordingly, when an owner is sued for negligence arising out of his or her ownership of real property, all co-owners, whether owned as tenants in common or joint tenants with a right to survivorship, are considered indispensable parties and must be joined in the lawsuit. Thanks to Domenica Tomasetti for her contribution to this article.  Should you have any questions, contact James Scott.Read More

PA Superior Court Holds Estate Sale Hosts Don’t Owe Duty Of Care To Injured Motorist On Adjacent Roadway

The Pennsylvania Superior Court held that hosts of an estate sale didn’t owe a duty of care to a man who injured in a car collision that happened on the street where the sale was occurring. Kistler v. Dietrich, 2023 PA Super 177 (Sept. 22, 2023). The injured motorist claimed that the estate sale caused “a very dangerous condition to other motorists in the area, as the persons attending the estate sale by automobile parked in an area of the public roadway that prohibited parking, creating visual limitations and deficiencies to other motorists who were simply traveling through the area.”  He further claimed the defendants acted negligently by creating a foreseeable hazard to the traffic and failing to have traffic and parking control measures, including parking personnel. The court sided with the defendants, finding no duty to restrict street parking or provide off-street parking for all estate sale attendees. The court relied on the findings of the trial court – namely that the injured motorist was not an invitee or attendee of the auction and that there was a festival being held near the accident at the same time as the estate auction. The court further found the Superior Court’s 2017 decision in Newell v. Montana West particularly persuasive in informing their decision. In that case, the court held that an owner and operator of a nightclub didn’t owe a duty of care to a person who was killed while crossing the street after parking across from the club. Kistler v. Dietrich highlights the court’s reluctance to disturb prior precedent and create a new legal duty of care with respect to landowners who have premises adjacent to a roadway. Furthermore, the court has made clear that such landowners, like the defendants in this case, do not possess authority to control parking on public streets, thereby limiting the scope of their duty of care to invitees. Thanks to Sydney Kockler for her contribution to this article.  Should you have any questions, contact James Scott.  Read More

MTA Cannot Avoid Liability Under Emergency Doctrine (NY)

In Greene v. MTA Bus Co. 2023 NY Slip Op 04658, (September 20, 2023) plaintiff brought action against the MTA, and another motorist, when plaintiff sustained injuries caused by the sudden stop of the bus she was riding on. The facts here appeared clear cut as Plaintiff was riding an MTA bus on Hillside Avenue in Queens. When the bus was pulling away from the pickup stop, the co-defendant made a right turn directly into the path of the bus causing the bus driver to make a sudden stop. At summary judgment, MTA moved under the emergency doctrine, arguing they were faced with sudden and unexpected circumstances not of the driver’s own making, leaving the driver no time for reflection and that the driver is compelled to make a quick decision without weighing any alternative courses of conduct. Yet, both the lower court and the Second Department denied the MTA’s motion for summary judgment finding the MTA failed to eliminate their driver was not at fault for the accident, and that there were still questions of fact as to whether the driver exercised reasonable care to avoid the accident, or if his actions were contributing to the emergency. This case highlights the importance introducing the testimony that affirms your client’s “innocence.”  Eliminating potential issues of fact, especially in situations where  there is incentive to leave things open for interpretation, is imperative to get a court to grant summary judgment motions. Thanks to Chris Palmieri for his assistance with this article.  Should you have any questions, please contact Tom Bracken.Read More

Factual Pleadings In Complaint Will Not Be Dismissed Without Discovery Regarding Liability Due To Ownership Of Vehicle

In Sharon Holmquist v. Harry Orphanides and Rallye BMW, 2023 NY Slip Op 04660 (2d Dept. 2023), plaintiff suffered personal injuries arising from a motor vehicle accident involving a vehicle that was owned by Rallye BMW and leased to Orphanides. Defendant Rallye BMW filed a motion to dismiss under CPLR 3211(a)(1) and (7) arguing that they could not be held liable under the Graves Amendment 49 USC § 30106. Briefly, under the Graves Amendment, “the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” (Harewood v Zip Car, 189 AD3d 1192, 1193 [emphasis added]; see 49 USC § 30106[a]). Here, the Court determined the Complaint had a cause of action for negligent maintenance against Rallye BMW and Rallye failed to offer evidence that the allegation was not a fact. Any arguments that Rallye BMW’s vehicle was in good working order would be an issue to be discerned on discovery.  The liberal pleadings precedent dictats a trial court will only dismiss all or part of a Compliant if there is no have no cause of action at law.  A Complaint that states facts and allegations arising from those facts as stated, will likely survive any arguments for dismissal under CPLR 3211. Thanks to Ray Gonzalez for his assistance with this post.  Should you have any questions, please contact Tom Bracken.Read More

Second Department Reaffirms Standard For Denial of Summary Judgment On Grounds Of Prematurity

New York’s Appellate Division, Second Department, recently held that in motor vehicle rear-end collision cases, defendant drivers occupying the rear must do more than speculate if they are to prevail in opposing a plaintiff’s summary judgment motion.  In Yonghong Xia v. Zhao Xian Zeng, Paul Gornie Briggs, et al, the Court credited plaintiff’s affidavit that demonstrated, prima facie, that defendant Briggs was negligent in striking plaintiff’s vehicle from the rear and rejected the defendant’s attempt to raise a triable issue of fact by merely contending that plaintiff’s vehicle slowed down abruptly. It has long been the rule in New York that, “[a] driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle.”  Xia v. Zeng, 2023 N.Y. Slip Op. 04435 (2d Dep’t Aug 30, 2023) (internal citations omitted).  Liability in rear end collisions is, barring contrary evidence, typically imposed on the rear driver. Considering Second Department precedent, the Court held that defendant Briggs’ contention was insufficient to raise a triable issue of fact as to whether Zeng contributed to the accident.  Slowing down or stopping short, barring further evidence of negligence, was no basis for finding plaintiff comparatively negligent in this case.  The Court noted that Briggs’ own affidavit weakened his position, as he conceded an awareness of earlier rainfall that day, and equipped with such awareness, he should have been able to avoid skidding. The Court reaffirmed its standard that “[a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.”  Skura v. Wojtlowski, 165 A.D.3d 1196 (2d Dep. 2018) (emphasis added).  Ultimately, Briggs did nothing more than speculate that depositions would lead to relevant evidence.  Given the substantial credibility of the plaintiff’s affidavit, the Court was unwilling to yield to such speculation, and affirmed the order of the Supreme Court.  The Court’s decision demonstrates the importance of party affidavits in motor vehicle rear end collision cases. Thanks to Mark Kindschuh for his contribution to this post.  Should you have any questions, contact Abed Bhuyan.Read More

Failure To Identify Cause Of Accident Proves Fatal To Fall Down Case (NY)

In a New York premises liability lawsuit, a defendant may contest liability where a plaintiff cannot identify what caused the alleged accident without speculation. In Villanueva v. DJ’s Intl. Buffet, Inc., plaintiff alleged that he was injured in a fall while descending a restaurant staircase with a box in both hands. The trial court granted the restaurant’s motion for summary judgment and plaintiff appealed. The Second Department affirmed, holding that the defendants met their prima facie burden by establishing that the plaintiff could not identify the cause of his fall. In opposing summary judgment, plaintiff offered a speculative theory through his expert, who opined that the fall was caused by alleged violations of the New York State Building Code. The expert claimed that the accident was caused by improper lighting and defective treads and handrails on the staircase, rather than a misstep or loss of balance. The Court noted that plaintiff could not identify the specific cause of the fall so a finding that defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be speculative. The Court observed that although proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident, when there could have been many possible causes as to how an accident occurred, a cause of action must fail. The takeaway from Villanueva is that while a plaintiff may obtain a liability expert report addressing alleged defects and violations of applicable building codes, plaintiff must still identify the specific cause of his or her accident in a premises liability case. The failure to do so is grounds for summary judgment and defendants should consider this defense where appropriate. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Fact Issues Concerning Plaintiff’s Fault Precludes Summary Judgment in New York Labor Case (NY)

New York courts hold that comparative negligence is not a defense in cases involving a claim under Labor Law § 240(1). However, plaintiff’s fault can still form the basis for a defense and prevent plaintiffs from obtaining summary judgment as to a defendant’s liability under § 240(1). The Appellate Division, Second Department, recently addressed these issues in Elibox v. Nehemiah Spring Cr. IV Mixed Income Hous. Dev. Fund Co., Inc. In that case, the plaintiff was performing work on a construction project and was allegedly injured when a scaffold he was working on collapsed. Plaintiff sued the owner and general contractor on the project alleging violations of Labor Law § 240(1) and § 241(6). Plaintiff moved for summary judgment as to defendants’ liability under those sections and the trial court denied the motion. The Second Department affirmed, recognizing that although plaintiff’s comparative negligence is not a defense to a cause of action under Labor Law § 240(1), “[a] defendant is not liable under Labor Law § 240(1) where the plaintiff’s own actions are the sole proximate cause of the accident.” Viewing the evidence in a light most favorable to defendants as the non-moving party, the Court found that the trial court’s denial of plaintiff’s summary judgment motion was proper because the defendants raised a triable issue of fact by showing that (1) the scaffold was correctly constructed, and (2) that plaintiff affected the condition of the scaffold by removing the nails securing the plank upon which he was standing “in such a manner as to create the condition causing its collapse.” In doing so, defendants were able to avoid summary judgment as to their liability and preserve the proximate cause defense for trial. The Elibox decision serves as a reminder that plaintiff’s fault is still a valid consideration in Labor Law cases and can represent a complete defense where a defendant can establish that plaintiff’s conduct was the sole proximate cause of an accident. Courts may find the existence of fact issues as in Elibox, but defendants should pursue the defense if there is evidence that plaintiff was at fault. It should also be noted that defendants in Elibox did not cross move for summary judgment, which would have imposed a higher burden of proof. Instead, they opposed the plaintiff’s motion and benefited from the reasonable inferences given to the non-moving party. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Common Law Indemnification Is Not For Everyone (PA)

In Roamingwood Sewer And Water Association v. National Diversified Sales Inc., the Third-Party Defendant O’Hara” filed a motion to dismiss the second amended joinder complaint filed by the Third-Party Plaintiff National Diversified Sales, Inc.  See No. 1:20-CV-00640, 2023 WL 5017973, at *1 (M.D. Pa. Aug. 7, 2023). The underlying action was filed by plaintiff to recover for defective valves. National was the manufacturer of the valves, and O’Harra had been hired to install the vales in a sewer renovation in a residential community in the Poconos. After plaintiff had filed suit, National joined O’Harra as a Third-Party defendant. Id. Thereafter, National and O’Harra agreed to a stipulation for National to file a second amended complaint as a Third-Party plaintiff. National’s second amended complaint “acknowledges Roamingwood’s allegations” that National’s valves failed when they were installed. Id. Further National alleged that O’Harra was responsible for “hydrostatically testing the sewer system in which” Nationals valves were used but failed to do so. Id. National therefore alleged that O’Harra was jointly and severally liable for any damages that National would have been found to be liable to Roamingwood. Id. The court granted partial motions of Roamingwood and National for summary judgment. Id. at *2. Specifically, Roamingwood was granted judgment on claims against National for strict liability and breach of implied warranty of merchantability. Id. National was granted summary judgment on the issue of Roamingwood’s claim under the consumer protection statute of Pennsylvania. Id. O’Harra however, had filed a motion to dismiss the second amended complaint of National. Id. The basis of O’Hara’s  motion to dismiss, or alternatively summary judgment, was that indemnification was unavailable to National, because “under Pennsylvania law, common law indemnification is ‘only available to a party that is without fault.’” Id. As the court stated, “[i]t is an ‘equitable remedy that shifts the entire responsibility for damages from a party who, without any fault, has been required to pay because of a legal relationship to the party at fault.’” Id. (quoting EQT Prod. Co. v. Terra Servs., 179 F. Supp. 3d 486, 493 (W.D. Pa. 2016)). In other words, indemnification applies when “a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.” Id. Further, the court emphasized the words of the Pennsylvania Supreme Court that “secondary, as opposed to primary liability, ‘rests upon a fault that is imputed or constructive only.’” O’Hara  argued that for National to succeed in its claim for indemnification, National would need to show that O’Harra was at fault and that National was without fault. National, however, asserted that the court had only recognized that National “was liable because the valves malfunctioned and did not pass the consumer expectation test.” Ultimately, the court decided that National’s claims in its second amended complaint were “insufficient to state a claim for common law indemnification.” The court based its decision by reasoning that National had alleged no facts from which the court could reasonably infer that National was without fault. “For example, the second amended third-party complaint provides no factual allegations from which the court could reasonably infer that anything other than [National’s] own conduct caused the failure of its valves.” Id. The court also made its decision in favor of O’Harra because National’s second amended third-party complaint did not provide any allegations in support of the argument that National’s only source of liability was from “some legal obligation to pay damages occasioned by the initial negligence of another, and for which [National] is only secondarily liable.” Id. (internal quotation marks omitted). The court noted that “[a]t best, [National’s] allegations are that O’Harra was negligent by failing to hydrostatically test [National’s] valves.” Id. Thus, because National was not without fault, it was denied common law indemnification from O’Harra. Defendants/third party plaintiffs seeking to impose common law indemnification on a third-party defendant, must not only show that the third-party defendant was liable, but must also show that the defendant/third-party plaintiff was not primarily liable; in other words, any liability on their part must only be based on the legal relationship between the defendant/third-party plaintiff and the third-party defendant. Thanks to Ryan Hunsicker for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More

Failure to Appear Equals a Failed Case in NY

The court closed any potential loophole that a plaintiff trying to skip out on evaluations under oath (EUOs) in New York might use to prevent any repercussions from being brought against them as a result. The plaintiff in MLG Med. P.C. v Nationwide Mutual Insurance Company missed four EUOs before the defendant filed a motion to dismiss and for summary judgment.  The plaintiff responded by stating that the defendant did not act on the failure to show in a timely manner which means within thirty days from the second no-show by the plaintiff.  The court considered how the plaintiff responded to the previous notices and the multiple opportunities to allow the plaintiff to appear. The court emphasized that the focus should be on the failure to appear, not timeliness of the defense motion, when considering whether to grant a motion to dismiss for failure to appear for EUO. Rather, the spirit of the law to incentivize parties to show up to EUOs should be remembered.

Thanks to Jordan Joachim-James for her contribution to this post. Please contact Heather Aquino with any questions.Read More

U.S. Supreme Court Re-Writes the Rules of Personal Jurisdiction in Mallory v. Norfolk Southern Railway Co.

Perhaps overshadowed by landmark opinions in other areas, the U.S. Supreme Court’s recent 5-4 decision concerning personal jurisdiction in Mallory v. Norfolk may dramatically impact the nature of civil litigation against out-of-state defendants across the nation. Personal jurisdiction refers to a court’s power to hear a claim against a certain entity. Generally, plaintiffs in civil claims can establish personal jurisdiction over a defendant if: (1) the defendant is “at home” in the forum state meaning they are incorporated or headquartered there (referred to as “general” jurisdiction); or (2) the defendant has “minimum contacts” with the state such that defending would not threaten “traditional notions of fair play and justice,” referred to as “specific” jurisdiction. However, Mallory upheld a Pennsylvania law that requires any entity registering to do business in the state to consent to the general jurisdiction of the state’s courts, potentially subjecting businesses to general jurisdiction in any state where it registers to do business. In Mallory, the plaintiff worked as a freight mechanic with Norfolk Southern Railway Co. (“Norfolk”) in Ohio and Virginia for twenty years, and then briefly moved to Pennsylvania until his diagnosis with cancer. After moving back to Virginia, Mallory sued Norfolk for alleged workplace injuries in Pennsylvania court. In response, Norfolk argued the court lacked personal jurisdiction because Norfolk was not headquartered or incorporated in Pennsylvania and did not have sufficient contacts with the state. Norfolk also argued that the consent statute violated the Due Process Clause and that the U.S. Supreme Court’s decision in Pennsylvania Fire Insurance Co. v. Gold Issue Mining and Milling Company, 243 U.S. 93 (1917), which found that a similar statute did not violate due process, had been overruled by subsequent cases addressing personal jurisdiction. The Supreme Court of Pennsylvania agreed with Norfolk and held that the statute was unconstitutional. The U.S. Supreme Court majority disagreed, finding that the Due Process Clause does not prohibit states from requiring an out-of-state corporation to consent to being sued as a condition of doing business in the state. The Court found that it was irrelevant that Mr. Mallory no longer lived in Pennsylvania and was likely injured in Virginia and Ohio; instead, the Court acknowledged that entities like Norfolk can statutorily consent to jurisdiction by registering to do business in a state. The Court also found that the Pennsylvania Fire case had not been overruled and was controlling precedent. While some fear that the Mallory decision will allow plaintiffs to engage in “litigation tourism” and “forum shopping,” others predict that it may be subject to challenge. Three members of the Court joined Justice Barrett in dissent, opining that Pennsylvania’s registration law violates the Due Process Clause while Justice Alito noted in his concurrence that the law also raises Dormant Commerce Clause concerns. That issue was not addressed in the decision and may form the basis for a subsequent challenge. Nonetheless, the decision will likely result in other states passing similar laws and expand the ability of states to obtain general jurisdiction over foreign and domestic companies doing business in multiple states. Thank you to Nicholas Ozorowski for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More