Negligence

Dog Doesn’t Get One Free Bite If Propensity To Do So Is Evident Prior To Attack (NY)

In Zicari v. Buckley, 2023 NY Slip Op 00788 (4th Dept. 2023), plaintiff alleged serious injuries due to a dog attack when he visited the defendant’s home to obtain signatures on a local political petition, and immediately upon the door opening, was attacked by defendant’s dog. Defendant said the dog had never attacked anyone before that day. At pretrial phase, Defendant moved for summary judgment to strike the dog bite claim, arguing they had no prior knowledge of any dangerous or violent propensity from the dog. Defendant further argued that “the dog was protective” and would protect the house when a “stranger” entered it. The trial court granted summary judgment on this issue. The plaintiff appealed and the Fourth Department overturned the trial court’s decision, holding that defendant failed to meet his initial burden on that part of the motion seeking to dismiss the “propensity” argument because defendant/owner failed to establish that he neither knew nor should have known that the dog had any vicious propensities (see Young v. Grizanti, 164 A.D.3d 1661, 1662 [4th Dept 2018]; cf. Brady v. Contangelo, 148 A.D.3d 1544, 1546 [4th Dept 2017]). The appellate division noted that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities” (Collier v. Zambito, 1 NY3d 444, 447 [2004]). The evidence showed prior veterinary records indicating the dog had known territorial issues and that the dog barked at people it did not like. The owner was recommended to engage the dog in socialization exercises to help with these issues. The court felt these factors could be used to show the owner should have known of the dog’s propensity for violence. The Fourth Department’s reasoning shows that any past evidence of aggression by animals, even if that evidence does not show any physical manifestation of violence or prior attack, can be used to prove a propensity for violence thus leaving it for a jury to decide. Thanks to Raymond Gonzalez for his assistance with this post.  Should you have any questions, feel free to contact Tom Bracken.Read More

Graves Amendment Immunity Denied To Auto Company If Liability Not Completely Based On Ownership (PA)

In the recent case of Burns v. Shama Express LLC, The United States District Court for the Western District of Pennsylvania found the Graves Amendment to the Safe, Accountable Flexible and Efficient Transportation Equity Action of 2004 is inapplicable when the liability attempting to be placed on an automobile company is grounded, even in part, in any basis other than ownership. Burns involves an automobile-trucking collision resulting in death of Plaintiff for negligence and negligent infliction of emotional distress, under Pennsylvania’s Wrongful Death and Survival Acts. Bowman owned the subject-truck that allegedly caused the accident. Plaintiff alleged, in part, that Bowman through its “employees, servants, or agents,” breached its duty, as the owner and operator of the subject-truck, “to be alert and maintain control of the vehicle,” and that Bowman negligently trained its truck operators. Bowman filed a Motion to Dismiss arguing that its only involvement in the underlying events was that it leased the subject-truck, months before the incident took place, and was therefore immune from vicarious liability under the Graves Amendment.  The Graves Amendment provides: (a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if— (1) the owner (or an affiliate of 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 (or an affiliate of the owner). 49 U.S.C. § 30106. The magistrate determined that “[b]ecause plaintiff had sufficiently alleged, at this initial stage, that Bowman was negligent, the Graves Amendment cannot serve as a basis for immunity.” The court ultimately adopted the magistrate’s Report and Recommendation and dismissed the Motion to Dismiss. Burns is a cautionary tale for defendants engaged in the trade or business of renting or leasing motor vehicles. It makes clear that Graves Amendment immunity from liability is only applicable to liability grounded exclusively in ownership; on the other hand, vehicle owners who themselves, or through agents, engage in negligence, are not protected by the Amendment. Thanks to Stephen Kerstein for his assistance in this post.  Should you have any questions, please feel free to contact Tom Bracken.Read More

Courts Weary Of “Jack Of All Trades” Experts (PA)

Under Daubert, experts must have relevant qualifications to testify to relevant industry standards.

In McConn v Dollar General Corporation., 2022 WL 17750490 (W.D. Pa. Dec. 19, 2022), plaintiff claimed that when she attempted to remove a book from a bookcase in Dollar General, books began falling on her and a rack that holds the book became dislodged. In support of her claims, plaintiff served an expert report identifying a liability expert who opined in his report that Dollar General “deviated from accepted industry wide customs and safety practices in the retail industry.”

Defendant Dollar General contended that the expert was not qualified to testify as an expert in retail safety because he is not an engineer, has no degree in retail safety, and has no practical work experience, i.e. retail store management or retail risk management, which would qualify him to serve as a retail safety expert.

Plaintiff argued that the expert has a Master’s Degree in Advanced Management, a certificate in safety management and a certificate in OSHA Outreach Training. Plaintiff further argued that she is unaware of a specific degree an individual can obtain in “retail safety” but that the expert had conducted field research for “falling merchandise involving produce cases and falling glass bottles due to incorrect stacking.”

The court granted Dollar General’s Daubert Motion, reasoning that while the expert appeared to possess skills, knowledge, and experience in some aspects of safety, the breadth of his skills, knowledge, and experience do not satisfy this Court’s Daubert inquiry.This case stands for the proposition that simply reviewing store manuals cannot create expertise and that “jack-of-all-trade experts” are disfavored.

Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions.Read More

No Good Deed Goes Unpunished (NY)

In Bridget Bardio v. Rego II Borrower, LLC, 2023 NY Slip Op 00405 (2d Dept. 2023), plaintiff sustained trip and fall injuries when she fell on the stairs of a mall. Plaintiff and her husband had just left a restaurant and argued in front of an elevator heading to the garage. Plaintiff admittedly was intoxicated at the time. The mall security guard came over, de-escalated the argument, and the husband left. The security guard then helped the plaintiff to the garage entrance so she could go to her parked car. He suggested they take the elevator down to the garage and she declined, so they proceeded to take the stairs. As they approached the stairs, plaintiff tripped and fell down the steps. Defendants moved for summary judgment arguing that they were not negligent and owed no specific duty to plaintiff when she fell down the stairs. The trial court denied defendant’s motion and the Second Department affirmed that decision. “Generally speaking, one does not owe a duty to come to the aid of a person in peril, whether the peril is medical or otherwise” (Miglino v Bally Total Fitness of Greater NY, Inc., 92 A.D.3d 148, 159). However, “‘one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully'” (Mirza v Metropolitan Life Ins. Co., 2 A.D.3d 808, 809, quoting Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 522; see Parvi v City of Kingston, 41 NY2d 553). “[T]he question is whether defendant’s conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant done nothing” (Heard v City of New York, 82 N.Y.2d at 72; see Malpeli v Yenna, 81 A.D.3d 607, 609). The defendants argued that plaintiff was intoxicated and the security guard did not owe her any specific duty of care, and more importantly, he did nothing wrong. However, the Second Dept. Court felt that there were issues of fact about whether the security guard’s conduct was a detriment to her safety and whether his conduct increased the risk of harm because plaintiff depended on him to get down the stairs and to her car safely. See Heard v City of New York, 82 N.Y.2d at 73; Lewis v Lester’s of NY, Inc., 205 A.D.3d 796). Normally, a duty of care to a person who needs assistance cannot be extended to simply anyone because there is no specific requirement to do so under the law. However, this case shows that an premises employee who engages a patron and chooses to assist a public patron must do so carefully and show a higher standard of care because they purposefully placed themselves to aid the distressed person, which creates the liability and standard of care from their actions.  Property owners should inform their employees that engaging with a public patron, under certain situations, creates a duty of care requiring them to make sure the patron remains free from harm under reasonable circumstances. Thanks to Raymond Gonzalez for his assistance in this article.  Should you have any questions, please contact Tom Bracken.Read More

Open And Obvious Danger Defense Affirmed In Federal PA Case

In recent case of Pusateri v. Wal-Mart Stores East L.P., the United States District Court for the Western District of Pennsylvania found that under PA state law, landowners do not owe business invitees a duty of care for open and obvious dangers that can be avoided through invitees’ exercise of ordinary care. In Pusateri, plaintiff sued Walmart Stores East, L.P. (“Walmart”), alleging negligence as to a business invitee on the theory of premises liability. Plaintiff attempted to avoid a collision with an approaching employee’s shopping cart, and backed into a product display that was in the middle of an aisle at Walmart, causing her to fall. However, in the minutes leading up to the incident, Plaintiff had walked past the display four times. Walmart moved for summary judgment arguing that it did not owe, and thus could not have breached, a duty to Plaintiff because the product display was “open and obvious.” While it was undisputed Plaintiff was a business invitee at the time of the accident, the court cited PA’s settled adoption of Section 343 of the Restatement (Second) of Torts, a landowner is liable for “for physical harm caused to his invitees” if, and only if he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. The court further noted that: Section 343A of the Restatement further provides that ‘[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’ The court finally reasoned a landowner should only “anticipate the harm despite such knowledge or obviousness” in situations where the exercise of ordinary care on the part of an invitee, would be insufficient to avoid the open and obvious danger. While the court ultimately dismissed the motion for summary judgment because the employee’s shopping cart created a distraction for Plaintiff that rendered the obviousness of the product display a question for the jury, the holding confirmed that where a danger is open and obvious, and the danger can be avoided by the exercise of ordinary care, landowners do not owe business invitees a duty of care.  Pusateri is a victory for defendant landowners in that it limits the duties owed to invitees which in turn limits potential exposure to liability. Thanks to Stephen Kerstein for his assistance in this article.  Should you have any questions, please feel free to contact Tom Bracken.Read More

Middle Car In “Chain Collision” Can Escape On Summary Judgment

Defending a rear-end collision when plaintiff is in a stopped car can be difficult, the cards are stacked against you and generally speaking, so is the law. Plaintiff only needs to establish that they were stopped as prima facie showing that the operator of the rear vehicle was negligent. However, the Second Department has recently held that, the same rules do not apply for a “middle” car in an accordion accident. In the matter of Liya Robinson v. New York City Transit Authority and Ghilan Noman Ali, 2023 N.Y. Slip Op 00683, Ms. Robinson brought suit to recover for personal injuries resulting from a multiple car pileup. Here, Ms. Robinson was sitting at a red light, when a New York City Bus struck her from the rear, resulting in two other cars being struck. Ms. Robinson brought suit against the NYCTA, as well as the drivers of the two vehicles in front of her. While it may seem clear that the two front vehicles would have no liability in such an action, and in fact summary judgment was held awarded in their favor, the court widened its holding, specifically stating that “in a chain-collision accident, the defendant operator/owner of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead when it was struck from behind by the rear vehicle and propelled into the lead vehicle.” Id., citing Nicola v Nicolas, 208 AD3d 791, 793. Thus, the mere fact that the insured was in a rear-end collision and was not the lead, is not dispositive of the action. In fact, if they were in the middle of the collision, they may be able to successfully obtain summary judgment and share no liability whatsoever. Thanks to Christopher Palmieri for his assistance in this post.  Should you have any questions, please contact Tom Bracken.Read More

College Security Program Creates Duty To Implement That Program Properly (PA)

In Doe v. Moravian College, 2023 U.S. Dist. Lexis 4027, 2023 WL 144436 (E.D. Pa. Jan. 10, 2023), the Court acknowledged that landlords can be found liable for the criminal conduct of other parties when the landlord establishes a program of security. In Doe, Plaintiff asserted a claim of negligence against her college alleging that the school failed to provide adequate security after she was allegedly sexually assaulted in a dorm. Generally, a landlord owes no duty to protect its tenants from the criminal conduct of other parties. However, the Court found that an exception to Pennsylvania’s standard negligence law applied when a landlord establishes a program of security, the tenants reasonably rely upon it, and the landlord negligent carries out the program. In Doe v. Moravian College, the court found that there is evidence that the college had implemented a security program in the dormitories by requiring school identification cards to enter the dormitories, they used residential advisors in their dormitories, and that security workers were employed by the school. The school, therefore, owed a duty to the Plaintiff as a landlord. The College argued that no duty was owed because courts have stopped imposing a duty of loco parentis upon colleges and universities. However, the Court differentiated the case because the tortious act took place in a campus dormitory. Ultimately, the Plaintiff’s case failed when she had to show that the College breached a duty to the Plaintiff by showing that the operation of the security program was negligent. Here, the Court found that the Plaintiff failed to provide evidence of the breach through a negligent security program. Thanks to Jean Scanlan for her contribution to this post.  Should you have any questions, please contact Tom Bracken.Read More

Failure To Facilitate A Meeting Of The Minds On A Pretrial Agreement Is Perilous

In Jones v. Blue Ridge Mfg., LLC, 4D21-1799 (Fla. 4th DCA Dec. 14, 2022), the parties stipulated that the death was the result of decedent’s head’s “direct or indirect contact” with defendant’s vehicle. There was evidence that decedent suffered a basal skull fracture caused by decedent’s head’s “direct or indirect contact” with defendant’s truck. There was also evidence that the basal skull fracture was the result of inertial forces (the fatal injury believed to have been suffered by race car driver Dale Earnhardt) not caused by decedent’s head’s “direct or indirect contact” with defendant’s truck.

The defendant sought to withdraw the stipulation pretrial, arguing that the meaning of “direct or indirect contact” was not clear. The court declined to do so but did allow the defendant to argue its interpretation of the stipulation and put on evidence supporting that interpretation.

On appeal, the court discussed the purpose of, legal analysis applied to, pretrial stipulations. The court recognized that stipulations were valuable to a “well-run and fair trial,” warned that “the failure to facilitate a meeting of the minds on a pretrial agreement is perilous,” and cautioned that “stipulations be clear, positive, definitive, and unambiguous.”

Because it could “fairly be read to mean that the parties intended the ‘direct or indirect’ contact issues to be determined by the jury,” the appellate court found the stipulation ambiguous. Applying this finding, the Court held that the trial court did not abuse its discretion in allowing the jury to determine the meaning of the stipulation or in allowing extrinsic evidence regarding the meaning of the stipulation.

The takeaway: Be aware of the nuances presented by the evidence, and do not let your familiarity with the evidence result in a less than clear stipulation.

Thanks to Charles “Chip” George for this article. Please contact Chip with any questions.

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Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY)

Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article.Read More

Speculation On Causation Of Infections Will Not Be Permitted By New York Courts

In Michael Pecora v. Fitness International LLC, 2023 NY Slip Op 00103 (2d Dept. 2023), plaintiff alleged he contracted infections at his local gym as a gym member in July 2014. He received an infection on his stomach, received medical treatment for that infection, and then alleged that after use of the gym sauna, he thereafter developed MRSA (a bacterial infection) one day later. Plaintiff sued the gym alleging that both infections were caused by a dangerous or defective condition on the premises which caused plaintiff’s infections. However, the Court did not buy plaintiff’s argument and the Appellate Division affirmed that ruling. Of import, Counsel for the gym provided a prima facie argument that the plaintiff would not be able to prove, without resorting to speculation, that the pathogen which caused his infections was present at the defendants’ facility,  Defendants submitted an expert report citing that such infections can be transmitted in various ways in different locations, that the facility was cleaned regularly, and there were no prior complaints or reports of MRSA infections. The Appellate court also determined that “since there could have been many possible sources of the infection-producing pathogen, any determination by the trier of fact that a condition at the defendants’ facility caused the plaintiff’s infections would be based upon sheer conjecture” (Dennis v Lakhani, 102 A.D.3d 651, 652; cf. Ash v City of New York, 109 A.D.3d 854, 855; Garvin v Rosenberg, 204 A.D.2d 388). Plaintiff failed to raise a triable issue of fact against those arguments. As result of Covid and other transmitted infections, property managers have seen the increase in suits of this type and while it can be difficult to defend because plaintiffs allege that the infection came from the property owner,  medical experts are necessary to explain these types of MRSA infections are common and can occur anywhere. This case shows that the Appellate Court will sustain summary judgment ruling if a premises owner can prove that it maintained and cleaned the facility regularly, and there were no previous reports from other public patrons. Thanks to Raymond Gonzalez for his assistance in this post.  Should you have any questions, please contact Tom Bracken.Read More