Negligence

Helmet Safety – Court Permits Defense Expert Testimony on Impact of Helmet Usage (PA)

In Nelson v. American Honda 2 1:18-cv-000210 (W.D. Pa. August 23, 2022), the Court denied  a Plaintiff’s motion to preclude testimony of an expert witness who would testify on the impact a helmet would have in a fatal all-terrain vehicle (ATV) accident.  Seventeen-year-old Dylan Fehlman died while driving an all-terrain vehicle (ATV) manufactured by American Honda Motor Company, Inc. (Honda) without a helmet. His body was discovered on top of railroad tracks with the ATV lying near him overturned.  Dylan’s mother Jamie Nelson, as administratrix of his estate, sued Honda alleging several theories of liability. Dylan’s stepfather Christopher Nelson was the owner of the ATV. Mr. Nelson purchased the vehicle second-hand from a private seller and the previous owner did not give any written materials except a bill of sale. The ATV had a decal that instructed the user to read the owner’s manual and always wear a helmet. Mr. Nelson never inquired about obtaining a copy of the owner’s manual. Plaintiff’s experts argued that the ATV had defects in the design, which caused or materially contributed to Dylan’s accident and death, and that Honda failed in its responsibility to adequately protect Dylan, and provide adequate warnings. Honda’s expert offered differing opinions to Mrs. Nelson. Most notably, a Honda expert placed blame on Dylan’s failure to wear a helmet. In the ruling at issue, the Estate argued that scientific evidence that wearing a helmet lessens head injuries are already known to be true by lay people; therefore, an expert is not needed at trial. Furthermore, Mrs. Nelson argued that the testimony of the expert is not necessary and therefore not helpful to the jury. Honda argued that while the average juror may know that helmets lessen head injuries generally, expert testimony will enlighten as to the effects an available helmet would have had on Dylan’s head injury. Honda’s expert used the helmet that was available to Dylan on the day of the accident and performed testing regarding the particular circumstances of the accident. Using the Daubert test, the Court held that Honda’s expert had specialized knowledge, reliability of scientific evidence, and testimony relevant to the case, thus helmet testimony was related to the post-sale duty to warn claim in that Plaintiff failed to heed the decal warning to wear a helmet and admissible to the jury. Thanks to Jean Scanlan for assistance on this post.  Should you have any questions, please contact Tom Bracken.Read More

NY Appellate Court Affirms “Reasonably Safe” Requirement of Property Owner in Dismissal of Premises Case

In Shuttleworth v. Saint Margaret’s R.C. Church in Middle Village, 2022 NY Slip Op 05730, (2^nd Dept. 2022), plaintiff slipped and fell on a metal drainage grating while it was raining. The defendant property owner moved for summary judgment arguing that the condition was not defective at the time of the incident. The trial court denied defendant’s motion but the Second Department overturned the decision, granting dismissal of all claims. “A property owner has a duty to maintain his or her premises in a reasonably safe condition (see Basso v Miller, 40 N.Y.2d 233, 241). “In order for a landowner to be liable in tort to a plaintiff who is injured as a result of a dangerous or defective condition upon the landowner’s property, the plaintiff must establish, among other things, that a dangerous or defective condition actually existed” (Riley v Lake Rd. Condominiums, 47 A.D.3d 697, 698). The appellate court concluded defendant satisfied the prima facie burden for summary dismissal by showing the metal drainage gate was not in violation of any applicable code, thus showing that the property owner kept the promises in a reasonably safe condition. The fact that the metal grating was wet from rain did not make it inherently dangerous. Plaintiff’s opposition failed to put any triable issues of fact and plaintiff’s expert submitted a report that the parking lot was defectively designed but failed to include any violations or industry-wide standards or accepted standards of parking lot design/construction. This case highlights an important tenet of premises liability – a wet condition on a premises is not inherently dangerous so long as it does not violate any building codes or widely accepted standards for construction. A viable defense for property owners in premises liability cases is showing you complied with all codes and statutes to protect public patrons, the location was reasonably safe and any condition that existed was not foreseeable. Thanks to Ray Gonzalez for his contribution to this article.  Should you have any questions, please contact Tom Bracken.Read More

Open And Obvious Danger Leaves Plaintiff In the Pit (NY)

In Lebron v. City of New York, NY Slip Op 04960 (2^nd Dept. 2022), a claim was filed by plaintiff when he fell into an inspection pit for vehicles at the garage facility operated by the New York City Taxi & Limousine Commission. Defendants moved for summary judgment arguing that the condition was an open and obvious defect and it did not require any duty by the property owner to warn the public. “There is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” (Rosenman v Siwiec, 196 A.D.3d 523, 524 [internal quotation marks omitted]; see Cerrato v Jacobs, 173 A.D.3d 1134, 1135; Schiavone v Bayside Fuel Oil Depot Corp., 94 A.D.3d 970, 971; Rivas-Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 557), or “where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it” (Cerrato v Jacobs, 173 AD3d at 1135; see, Torres v State of New York, 18 AD3d 739).

The City however argued that an inspection pit in a taxi facility would be considered an inherent part of the nature of the property. Although the trial court judge rejected defendants’ argument, the Second Department overturned and granted summary judgment dismissal to the City. The judge’s panel felt that the inspection pit was an open and obvious condition that was not inherently dangerous because of the nature of the facility, and plaintiff’s expert affidavit in opposition failed to specify any violation of an applicable statute or relevant industry standard showing the City’s negligence. The takeaway from this case is that the open and obvious standard is fluid and applicable on a case-by-case basis. Under any other circumstances, a large hole in the ground without any perimeter guard or fence would be considered dangerous, except in a taxi garage setting where one would expect to find it.

Thanks to Ray Gonzalez for his assistance with this post.  Should you have any questions, please contact Tom Bracken.

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Pennsylvania Landowners Also Have a Duty to Protect Invitees from Intentional Harm

In Massaro v. McDonalds Corporation, the Pennsylvania Superior Court found that landowners had an affirmative duty to protect invitees from intentional harmful acts of third parties. On September 21, 2018, the plaintiff, Thomas Massaro, went to a McDonald’s restaurant in Philadelphia to tutor a student. While tutoring the student, a man named Bryant Gordon entered the store and began berating Massaro with racial slurs and hateful remarks. The beratement went on for an hour while McDonald’s staff watched. Massaro repeatedly asked McDonald’s staff to intervene or call 911; however, they did nothing. Bryant physically threatened Massaro and the student and said that he would harm them. Massaro fell during the assault and suffered injuries to his skull. Massaro filed suit against McDonald’s, alleging it was negligent by failing to prevent the attack. In response, McDonald’s filed preliminary objections to the complaint in the nature of a demurrer. Specifically, McDonald’s asserted that the complaint had no legal basis as McDonald’s did not owe a duty to Massaro because (1) Massaro assumed the risk of an attack by remaining in the McDonald’s; and (2) McDonald’s did not have a duty to prevent Massaro from intentional harm. The trial court granted McDonald’s preliminary objections, but Massaro appealed. The Pennsylvania Superior Court reversed reasoning that a landowner has an affirmative duty to protect invitees not only against known dangers, but also against dangers that might be discovered with reasonable care. In Massaro’s case, it was clear that the danger presented to him was clear to McDonald’s employees. Further, Massaro did not assume the risk of an attack. There were no facts indicating that before he went to the McDonald’s he had information that the attacker would be there. Further, it was apparent on the complaint’s face that Massaro feared further harm if he left and the Court thus took issue with the business’ failure to prevent the harm. Thanks to John Lang for his contribution to this article.  Should you have any questions, please contact Tom Bracken.Read More

The Third Circuit’s Stance: Cell Phone Use While Driving & Punitive Damages (PA)

The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss the punitive damages claims a plaintiff passenger asserted against a Greyhound bus driver and his employers. In Brown v. White, the plaintiff, Jasmine Brown was taking an overnight Greyhound bus from New York City to Pittsburgh in the early morning hours of August 1, 2020 when the defendant bus driver, Harry White, rear-ended a tractor trailer causing Ms. Brown to suffer injuries. A dashcam video from the 10 seconds before the accident appeared to show a glowing light in White’s lap near his left hand and his cell phone records show that he used 121.54 MB of data in the three-hour window around the accident. Brown filed suit against Mr. White and his employers, Greyhound and FirstGroup America, asserting that they were vicariously liable for White’s negligence and/or recklessness and that they were negligent and/or reckless in hiring, retaining and supervising him. Ms. Brown seeks both compensatory and punitive damages and the defendants moved for partial summary judgment on the punitive damages claim.

Under Pennsylvania law, punitive damages are an extreme remedy that may be awarded only when a plaintiff has established that the defendant acted in an outrageous fashion due to either defendant’s evil motive or his reckless indifference to the rights of others. Further, punitive damages are available only where a defendant has acted intentionally, willfully, or recklessly – they are not available where a defendant merely acted negligently.

While cell phone usage while driving, without more, is typically insufficient to support a finding of recklessness, courts applying Pennsylvania law have held that cell phone usage may rise to the level of recklessness where aggravating factors render the cell phone usage particularly egregious. The court ultimately found that a reasonable jury could conclude that the driver was reckless in using his cellphone while driving the bus and the following were deemed to be aggravating factors that rendering his actions particularly egregious: he was operating a large bus overnight with 22 passengers at a speed of 72 miles per hour with one hand on the steering wheel and without tapping the breaks prior to the rear-end collision. As such, the court refused to dismiss Brown’s punitive damages claims. This case demonstrates the court’s discretion in considering the aggravating factors surrounding cell phone use and motor vehicle collisions that support punitive damages claims.

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

Plaintiff Hurt In A Pickup Game Found To Have Assumed The Risk Of Injury (NY)

In Lungen v. Harbors Haverstraw Homeowners Assn., Inc., the New York Appellate Division, Second Department, addressed whether a plaintiff injured while playing in a basketball “pickup” game assumed the risk of his injuries. Plaintiff alleged to have fallen when he slipped on condensation on the floor of a gym. The defendants moved for summary judgment on the grounds that plaintiff had assumed the risk since humidity that day created slippery conditions.

The court stated that assumption of risk is not an absolute defense but a measure of the defendant’s duty of care. It observed that “participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport.” However, “[i]f the risks are known by or perfectly obvious to the player, he or she has consented to them, and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.”

The court affirmed the trial court’s award of summary judgment in favor of defendants, finding that plaintiff assumed the gym floor would be slippery due to condensation in light of the humid conditions at that time. Plaintiff had testified that he had played basketball in that gym more than 50 times, and knew the air was humid.

This decision serves as a reminder that playing sports involves certain risks, and that New York courts will apply the assumption of risk defense in cases involving injuries caused by known and obvious risks.

Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.

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Gist Of The Action Remains Useful In PA Motion Practice

In Moravia Motorcycle, Inc. v. Allstate Insurance Company, plaintiffs brought the following claims in connection with damage sustained to a motor home: (1) negligent misrepresentation; (2) breach of contract; and (3) bad faith. Allstate moved for summary judgment on Counts I and III. The claim arose from a curious scenario, as the plaintiffs’ motorhome was parked in a lot they owned when a tree branch fell on the roof, causing serious water damage.

In Count I, plaintiffs alleged Allstate was negligent by misrepresenting the status of the policy by, among other things, failing to fully advise as to the actual terms of coverage and failing to inspect the motor home in a workmanlike manner, which led to additional damages associated with mold and electrical issues, and eventually, complete loss of the motor home. Specifically, it was alleged that an adjuster originally verbally indicated the claim was covered, and the plaintiffs thereafter started the repair process on their vehicle at an approved mechanic. In the meantime, Allstate sent a second adjuster and inspector and denied the claim entirely.

Allstate argued plaintiffs’ negligence allegations should be dismissed under the gist of action doctrine, as the duty Allstate owed to plaintiffs arose pursuant to the contractual relationship (Count II) between the parties, not from a separate societal duty as would be necessary in tort. The court agreed and dismissed Count I, stating, “[i]f Allstate wrongly denied coverage, Plaintiffs have a claim for breach of contract.”

In Count III, plaintiffs alleged Allstate engaged in bad faith by stating the loss was covered, only later to inform plaintiffs, without explanation, the loss was in fact not covered. This allegation alone was sufficient to overcome Allstate’s Motion to Dismiss pursuant to Rule 12(b)(6) as to Count III.

This decision highlights the gist of action doctrine as an important tool in the preliminary stages of litigation and the importance of maintaining one, consistent message.

Thanks to Richard Dunne for his contribution to this article.  Should you have any questions, please contact Matthew Care.

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Claim Of Injury On A City Bus Fails To Take Off From The Ground (NY)

In this week’s review, we study a quirky case where a plaintiff sued the MTA Bus Company because she sustained serious injury when she fell from a sudden and violent stop on a New York City bus. (Who among us has not been in this common situation at one point while living in New York City.)

In Orji v. MTA Bus Co., NY Slip Op 02811 (2d Dept. 2022), the plaintiff alleged the city bus stopped at a red traffic light at an intersection, causing her to lose her grip on the railing and fall. To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, a plaintiff must establish that the movement consisted of a jerk or lurch that was “unusual and violent” (Urquhart v. New York City Tr. Auth., 85 NY2d 828, 830, quoting Trudell v. New York R.T. Corp., 281 NY 82, 85; see, Mastrantonakis v. Metropolitan Transp. Auth., 170 AD3d 823, 824). “Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent” (Mastrantonakis v. Metropolitan Transp. Auth., 170 AD3d at 824). There must be “objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant” (Urquhart v. New York City Tr. Auth., 85 NY2d at 830). The Appellate court indicated the MTA had the burden of proving the movement of the bus was not unusual and violent. (Mastrantonakis v. Metropolitan Transp. Auth., 170 AD3d at 825). The appellate court opined the MTA satisfied their burden for summary judgment because plaintiff testified that the sudden stop by the bus was not unusual and was not different from the regular jerks and jolts that she experienced while traveling on a city bus. Moreover, the plaintiff said she was the only person who fell after the sudden stop, and she could not testify how fast the bus was traveling before the sudden stop.

This case highlights a very specific standard of driving for city bus operators and that standard can be used by carriers in defense of bus companies transporting public passengers. The sudden stop and go traffic experienced by average New Yorkers every day may seem violent at times, but it comes with the territory. As a rule, bus operators with public patrons should always be mindful of any sudden movements which could cause an injury without even colliding with another vehicle. Of course, all of this liability can be mitigated if we simply drive a little slower in the city streets.

Thanks to Raymond Gonzalez for his contribution to this article.  Should you have any questions, please contact Tom Bracken.Read More

Mode Of Operation Delineated By NJ Supreme Court

In September of 2021, we reported on an Appellate Division’s decision in Jeter v. Sam’s Club where the Court found that New Jersey’s “mode of operation” rule did not apply to spilled grapes in a closed plastic container in a Sam’s club. Jeter v. Sam’s Club, 2021 WL 1961122 (App. Div. 2021). The plaintiff in Jeter appealed and were heard by the Supreme Court. The Supreme Court affirmed in a 4-2 vote. The decision was accompanied by a strongly worded dissent.

The Supreme Court granted leave for the New Jersey Association of Justice (NJAJ) and the New Jersey Food Council (NJFC) to file amicus briefs. NJAJ and plaintiff argued on appeal that the Appellate Division’s decision “effectively shifted the risk of self-service to customers who have no ability or right to control commercial premises” while Sam’s Club and NJFC argued that applying the mode of operation rule in this case would “usher in a seismic shift in the law of premises liability since customers can always open products on store shelves that are packaged in paper, cardboard, glass, or plastic.”

The New Jersey Supreme Court noted that the mode of operation rule began nearly six decades ago and after reviewing the variety of situations in which it has been applied, delineated “several seminal conclusions regarding our mode of operation jurisprudence.”  First, the Court noted that the rule is limited to self-service settings where customers independently handle merchandise without the assistance of employees, including product displays, shelving, and packaging. Second, the mode of operation rule applies in all “areas affected by the business’s self-service operations” where “there is a nexus between self-service components of the defendant’s business and a risk of injury in the area where the accident occurred.” Third, the Court stated that the mode of operation rule “creates a presumption of negligence, excusing the plaintiff from having to show notice and shifting the burden to the defendant to show it exercised due care.”

Applying those principles to Jeter, the Supreme Court found that because the grapes were kept in sealed clamshell containers secured by tape, which the Supreme Court found was “a method that posed virtually no chance of spillage during ordinary, permissible customer handling”, there was no nexus between plaintiff’s fall on grapes and Sam’s Club’s self service sale of grape containers. Therefore, plaintiff could not prove Sam’s Club had notice, and her case against Sam’s Club was rightfully dismissed.

Two justices wrote a strongly worded dissent where they argued “the majority opinion lowers the protection for customers of self-service stores.”  The dissent stated that because Sam’s Club knew that “it wasn’t uncommon” for customers to open sealed grape containers, the burden should be on Sam’s Club to show the due care it exercised in mitigating risks stemming from customer actions. The justices also noted a decision from the Supreme Court of Massachusetts which also applies the mode of operation rule and held that a fall resulting from grapes from an individually sealed bags warranted application of mode of operation.

One procedural issue of interest that the Court did not consider on appeal was the trial court sua sponte turning a motion in limine barring a jury instruction on the mode of operation rule into a motion for summary judgment dismissing plaintiff’s case. While this was not raised on appeal, the Supreme Court in a review of the record stated this violated the NJ rules of civil procedure.

Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions.Read More

Bowling Alley Strikes Out In Its Attempt To Be Spared Liability (NY)

Plaintiff’s emanated from a slip and fall at the defendant’s bowling alley in Clifton Park New York. Ms. Muscato alleges she slipped and fell causing her injuries because the floor near the ball return was excessively slippery.

In defending the action and moving for summary judgment, the bowling alley offered the testimony of its manager who stated they neither created the slippery condition nor had notice of it. The manager offered testimony concerning general cleaning and inspection, however, the bowling alley did not answer what was specifically done on the date in question. The court reiterated precedent which states the testimony as to general cleaning and inspection practices are not sufficient to show lack of constructive notice of that dangerous condition.  The alley also argued that plaintiff was unable to identify the cause of her fall, however witnesses testified that the floor in that ball return area was unusually or excessively slippery and that despite not knowing exactly what caused the plaintiff to fall, she offered enough circumstantial evidence from which negligence can reasonably be inferred. The court noted that plaintiffs claim can be deduced from defendants’ practice of moving its oiling machine from lane to lane near the ball return area. As such, the bowling alley was not spared liability.

Please contact Tom Bracken to discuss.

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