Negligence

“Quick Fix” Leads To Liability If Not Done Properly (PA)

In a recent Eastern District of PA case, Zurich Am. Ins. Co. v. A.T. Chadwick Co., Inc., the court denied a third-party defendant’s motion for summary judgment in a construction defect case. The court found that jury could assign a percentage of the blame to the third-party defendant for a “quick fix” gone bad.

In this case, a homeowner had a broken pike in their home which leaked and sagged in the home. It was installed by the primary defendant when building the home.  However, when damages were noticed, the property manager asked a third party to perform a temporary repair of the leaking pipe until such time as the primary defendant could come back to correct its installation. The pipe was repaired but again failed before the primary defendant that originally installed the pipe could return to fix the pipe permanently. As a result, the primary defendant brought claims against the third-party “quick fixer” who performed the temporary repair.

The “quick fixer” who performed the temporary repair  argued that it had no relationship with the primary defendant that would give rise to a legal duty. The court found in favor of the primary defendant and denied the motion for summary judgment. The court stated that although, “correct to the extent that there was no contractual or business relationship that would give rise to a duty.” Nevertheless, a duty did exist because the third party attempted to fix the leak and had a duty of reasonable care to perform a functional temporary fix. Additionally, the court went on to consider that a key factor in the recognition of a legal duty falls to the risk and foreseeability of harm. The importance of the temporary repair required a greater duty of the third-party to prevent the leak from continuing before the primary defendant could permanently fix the pipe. As result the third party’s inability to show that they owned no duty and a blame for damages could be portioned to them led the court to deny the motion for summary judgment.

This case confirms highlights precedent that when someone takes on an undertaking to fix or correct a defect, a duty is created.

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

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Tragedy At CitiField Does Not Create An Unreasonable Duty To The Property Owner (NY)

Antonio Narainasami, decedent, and his friends attended a New York Mets baseball game at Citi Field, and like many New York Mets fans, they decided to leave the game early by the 8th inning, and headed toward the escalators.  The escalators had been turned off at the end of the 7th inning and barricades had been placed to prevent patrons from walking down the escalators and redirected them to the exit ramps. Decedent and his friends decided to walk down the “stopped” escalators, and unfortunately during their descent, the Decedent fell down 50 feet and died. Plaintiff’s administrator sued the New York Mets alleging they breached a duty to maintain the safety of public patrons on its property. However, the property owner was granted summary judgment and plaintiff appealed. “Landowners generally owe a duty of care to maintain their property in a reasonably safe condition, and are liable for injuries caused by a breach of this duty.” (Henry v. Hamilton Equities, Inc., 34 N.Y.3d 136). The court also stated, “where members of the public are invited onto the premises, the owner has ‘a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'” (Cox v. 118 E. 60th Owners, Inc., 189 A.D.3d 1169, 1170)

The court reiterated the the scope of a landowner’s duty extends to maintaining its property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” but “there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous”. A stationary escalator is not inherently dangerous. (see Adamo v. National R.R. Passenger Corp., 71 A.D.3d 557, 558; Schurr v. Port Auth. of N.Y. & N.J., 307 A.D.2d 837, 838; see also Roberts v. Old Navy, 134 A.D.3d 1088; Jaikran v. Shoppers Jamaica, LLC, 85 A.D.3d 864, 867). The Second Department affirmed the trial court’s ruling holding that defendants submitted evidence that the escalators were not defective, and plaintiff failed to offer any evidence demonstrating defendants’ failed to comply with applicable statutes and regulations concerning the escalators. Plaintiff further argued that defendants failed to take reasonable precautions against foreseeable dangers. However, the court opined that there was little else the stadium personnel could have done, other than placing security personal in front of every escalator egress, which would have been an “unreasonable burden”. Plaintiff alleged the stadium failed in their duty to provide a safe means of ingress and egress for the public, but the Second Department held that defendants demonstrated the barricades and directing patrons to the exits ramps with announcements and security personnel was sufficient to satisfy the duty.

This case reiterates non-delegable duties by landowners over the public patrons that come upon their property. While a property owner who sees high-traffic events and a high volume of public patrons must ensure that there are several safe and approachable entrances/exits for the patrons, they also must be wary of unforeseen dangers and demonstrate they have done everything reasonable to mitigate that danger to the public. Moreover, the property owner must maintain security personnel, clear signs, and barricades to prevent public patrons from approaching un-safe or undesignated areas on the property.

Thanks to Raymond Gonzalez for contribution to this post.  Should you have any question, please feel free to contact Tom Bracken.

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Recent Wave Of High Jury Verdicts In Premises Liability Cases

Highlighted by a recent decision by CVS Pharmacies, to close around 900 stores across the country after a Georgia court upheld a $43 million premises liability verdict against the company, there has been a noted increase in high verdicts across the United States. These premises liability cases have involved a number of issues, including criminal acts and inadequate security. The string of recent results has led some commercial insurers to refine their underwriting standards to ensure that their retail business have adequate security measures in place. Nationwide, verdicts in excess of $10 million appear to be on the rise. Verisk, which compiles insurance data from around the country, reported that the average size of jury awards climbed almost 1,000% from 2010 to 2018, to about $22 million. The increase in these verdict amounts has led to some insurance companies reconsidering their policies to increase their levels of reinsurance in areas with plaintiff-friendly jurisdictions. Thanks to Alexander N. DiMeo for his contribution to this post. Please contact Heather Aquino with any questions.Read More

Alec Baldwin Sued For Wrongful Death Of Cinematographer

In a well-publicized incident which took place in October 2021, cinematographer Halyna Hutchins was shot and killed by actor Alec Baldwin on the set of the movie “Rust.” On February 15, 2022, the Hutchins family filed a wrongful death lawsuit in New Mexico’s 1^st Judicial District Court against the movie’s producers and certain cast and crew members, including Alec Baldwin.

At the time of the accident, Baldwin and Hutchins were rehearsing a “line up” shoot-out scene in an old, abandoned church. Baldwin was seated approximately four feet away from Hutchins when he pointed a revolver at her, causing it to discharge. According to the Complaint, “the sole purpose of a line up for this scene was to confirm the positioning, frame and focus of the cameras for a close-up shot of Baldwins’ hand and the revolver he was holding. It is alleged that “Baldwin’s possession of a real revolver, let alone a revolver loaded with any ammunition at all, was unnecessary to achieve this purpose.” The Complaint alleges that Baldwin refused training for the “cross-draw” maneuver he was performing when the weapon discharged.

Though Baldwin fired the bullet that killed Hutchins, Plaintiffs assert claims for recklessness and negligence against numerous others involved in the production. More specifically, the defendants were allegedly aware of several firearm safety issues and complaints on the set, took cost cutting measures and failed to remedy the situation or take adequate precautions for firearm safety.

This high-profile lawsuit will include a complex negligence analysis involving the culpability of numerous parties, including whether Ms. Hutchins should have some responsibility for the accident which caused her death. Several other lawsuits have been filed by cast members and it is unlikely that meaningful discovery will take place while a decision regarding potential criminal charges is pending. WCM will monitor the litigation and report on any significant developments.

Thank you to Alexandra Deplas for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Can New York Horse Owners Be Liable When Their Horses Stray From Property Owned By Others?

In Saddlemire v. Hunsdon, No. 532527, 2022 WL 398883, at *1 (N.Y. App. Div. Feb. 10, 2022), the New York Appellate Division, Third Department, recently addressed the potential liability of the owners of horses who strayed from the property on which they were kept. In that case, two horses were being boarded on a horse farm owned by the defendants. The horses ventured off the farm and collided with plaintiff, who was riding on a motorcycle. Plaintiff sued the owners of the horse farm for negligence, and the owners filed a third-party action against the horse owners. The horse owners filed a motion for summary judgment, arguing that the accident was not caused by their conduct. In opposing the motion, the property owners argued that the horse owners were on the farm on the date of the accident and that their performance of various chores in exchange for rent created a duty of care.

In addressing the liability issues, the court generally noted that a landowner or animal owner may be held liable under ordinary tort principles when a domestic farm animal negligently strays from the property on which the animal is kept. This includes a negligence claim against the animal’s owner if the animal wanders unattended on a road and causes an accident. However, such a claim may be rebutted where it is established that the animal’s presence on the highway was not caused by the owner’s negligence.

Applying these principles to the case, the court found that the horse owners did not contribute to plaintiff’s injuries and were not liable for negligence. The evidence established that the horse owners were present on the farm the morning of the accident and observed the horses fenced in the field but did not have an obligation to maintain or inspect the fence. The property owners also testified that they inspected the property the morning after the incident and observed that the gates were closed, and the fence was intact.

Given such evidence, the court held that the horse owners sufficiently rebutted the presumption of negligence and demonstrated their entitlement to judgment as a matter of law. The court found that the horse owners had no duty to repair the fence since the property owners retained control of the premises, and that their mere presence on the farm and speculation as to what they may have done was not enough to hold them liable.

The Saddlemire case makes it clear that a property owner and horse owner may both be liable for accidents or damage caused by stray horses although a horse owner’s liability hinges on whether they contributed to the accident in some way.

Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Denial Of Summary Judgment Reversed In Trip & Fall Due To “Insignificant” Discrepancy In Height Defect (NY)

In Dingman v. Linchris Hotel Corp., NY Slip Op 00168 (2d Dept. 2022), a plaintiff sustained injury in a trip and fall in a hotel lobby undergoing construction where the lobby floor was being re-tiled. Some parts had new tile, while others had no tile at all, exposing the cement floor. Plaintiff tripped on the difference in elevation from the new tiles and the lobby floor, which the hotel manager testified was approximately ¼ inch in height difference. The hotel moved for summary judgment arguing the “defect” on the lobby floor was trivial. The trial judge denied summary judgment to the defendant and the Second Department overturned that decision thereby granting summary judgment to the hotel and dismissing the claim.

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury’ (Trincere v County of Suffolk, 90 NY2d at 978. There is no ‘minimal dimension test’ or per se rule that the condition must be of a certain height or depth in order to be actionable.”

By submitting photographs and testimony from the construction workers, the Second Department reasoned that the small height difference between the newly tiled floor and the cement sub-flooring was “physically insignificant.” The Appellate Court took note that the physical defect and the surrounding circumstances did not increase the risk of a tripping hazard. Plaintiff could not establish any triable issues of fact in opposition to that argument, and the claims against the defendant were dismissed.

The Court showed some clarity in affording property owners some relief for trivial defects on a premises liability claim. In the event of a reported personal injury involving a trip and fall, property owners/tenants would be prudent to take multiple photographs immediately upon learning of the accident. The photographs of the alleged defect should be taken, up close and preferably with a measurements to establish the height differential of the alleged defect. Photographs should also be taken of the surrounding scene of the accident to establish that the defect did not increase the risk of a trip and fall. Taking down statements and photographs of the scene of the accident can also prove vital in defending against liability if and when a claim heads to court.

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

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Hot Yoga Gone Wrong: Gym Saved by Exculpatory Clause in Member Usage Agreement

When it comes to slip and falls, one doesn’t usually think of a hot yoga studio in a luxury gym as a site rife with hazardous conditions. However, in New Jersey, the Appellate Division had to examine a summary judgment decision in a case where plaintiff allegedly slipped and fell on sweat on the floor of a hot yoga studio in Florham Park. Skarbnik v. Life Time Fitness, Inc., 2021 WL 3923270 (App. Div. 2021).

In Skarbnik, the Appellate Division examined whether an exculpatory clause in plaintiff’s member usage agreement warranted a dismissal for defendant Life Time Fitness, Inc. Plaintiff, who had been a member of Life Time Fitness since 2011, signed a Member Usage Agreement that contained an assumption-of-risk provision which essentially stated that by signing the agreement, plaintiff understood that there was an inherent risk of slip and fall injuries arising from the use of equipment and services at Life Time Fitness. There was also a release of liability provision in the member usage agreement whereby plaintiff agreed to waive any claim arising against Life Time Fitness for personal and bodily injury resulting from the negligence of Life Time Fitness.

Plaintiff’s complaint alleged that Life Time Fitness created a dangerous condition consisting of a wet and slippery floor due to sweat and that Life Time Fitness failed to warn patrons of said dangerous condition. After discovery ended, the trial judge granted defendant summary judgment based on exculpatory language in the member usage agreement. Plaintiff appealed stating that the member usage agreement was too broad and unconscionable.

The Appellate Division affirmed. While noting that exculpatory clauses are generally disfavored for incentivizing careless behavior, the Appellate Division distinguished special assumption-of-the-risk clauses in the context of private gyms from other exculpatory clauses. The Appellate Division stated that a private gym cannot insulate itself through an exculpatory clause from the ordinary duty of care owed by all businesses to its invitees seen in “garden variety slip and fall case” such as where someone slips on the tread of a stair. However, the Appellate Division held that “slipping on sweat while exiting a ninety-degree-heated and darkened hot yoga studio is not the type of accident that ‘could have occurred in any business setting’, but was related directly to plaintiff’s participation in defendant’s hot yoga class.” Id. at 4.

Therefore, while an exculpatory clause in a contract might not be held enforceable for “garden variety” slip and falls, where the exculpatory clause has language pertaining to assumption-of-the-risk and the plaintiff was participating in an activity that places themselves in harm’s way, and the defendant has not acted in a grossly negligent manner, then the exculpatory clause may be enforced.

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

Whether Elf On The Shelf Or Toy On The Floor–You Still Have To Look Where You Are Going (PA)

In Debra Pickett v. Target Corporation, the Middle District of Pennsylvania reaffirmed two fundamental principles of premises liability law:  (1) that a plaintiff must establish that a defendant had actual or constructive notice of an alleged defect; and (2) that a plaintiff must look where he is going.

Debra Pickett was injured while shopping with her husband at a Target store in Wilkes Barre, PA when she slipped and fell on a Spritz Grabber, a children’s grabber toy that was on the floor of the main aisle of the store.   At the close of discovery, Target moved for summary judgment.  In considering Target’s motion, the Hon. Malachy E. Mannion, U.S.D.J. addressed the issues of actual and constructive notice and whether the toy on the floor of the main aisle was an open and obvious defect.

Pickett did not explicitly argue that Target had actual notice of the toy, but suggested that it knew of the Spritz Grabber because it was aware that Target store merchandise frequently fell onto busy areas of the store, including the site of Pickett’s fall.  Judge Mannion rejected this argument, holding that an inference of actual notice, simply because merchandise would frequently make its way onto the floor of the store, would extend the actual notice doctrine beyond its use as established precedent.

Pickett also relied on the constructive notice doctrine arguing that a reasonable jury could infer the that Spritz Grabber was on the floor long enough for Target to have notice of it because there was a genuine issue of material fact as to whether Target monitored the area of the incident prior to her fall.  Pickett argued that Target did not monitor the area of the incident, because if it had done so, the accident would not have occurred.  Judge Mannion rejected this argument as “circular and thus ineffective.”

This case is a great reminder that in determining whether a defendant had constructive notice of an allegedly dangerous condition, one of the most important factors to consider is the amount of time that elapsed between the origin of the hazard and the accident.  Where the duration of the time between the creation of the hazard and a plaintiff’s injury is very short, a possessor of land would not be able to discover the hazard “even in the exercise of reasonable care,” and therefore would owe no duty to protect invitees such as Pickett from the hazard.  Here, Pickett failed to present any evidence in her favor as to the amount of time the toy was on the floor.  The only evidence as to duration of time was that Pickett and her husband were on the main aisle of the Target store approximately 45 minutes before her fall and they did not see any merchandise on the floor at that time.   However, Judge Mannion stated that these facts were insufficient evidence of duration, as it was equally likely that the Spritz Grabber fell on the floor many minutes before the accident or mere seconds before the fall, which case Target would not have been able to discover the toy even in the exercise of reasonable care.  Without evidence in Pickett’s favor, a reasonable jury could not conclude that Target had reason to know of the hazardous condition.  Consequently, Pickett could not defeat Target’s motion for summary judgment.

Although the notice issue was dispositive, Judge Mannion went on to address the dispute over whether Spritz Grabber on the floor of the main aisle was an open and obvious condition, for which Target would owe Pickett no duty of care.  Pickett contended that the Spritz Grabber was not an obvious condition and, in any event, the question of whether a hazard is obvious to a plaintiff is a question of fact reserved for the jury.  Judge Mannion found Pickett’s position unpersuasive.  “It is hornbook law in Pennsylvania that a person must look where he is going.”  The parties agreed that the Spritz Grabber was at least 14 inches long, was red, blue, and green, and was laid in an area that was well-lit and free of debris.  Pickett and her husband conceded that they could see ahead and around as they were walking down the main aisle before the incident occurred.  Given these circumstances, Judge Mannion found that reasonable minds could not differ regarding the obviousness of the Spritz Grabber, because the toy would have been obvious to a reasonable person exercising normal perception under Pickett’s circumstances. Accordingly, Judge Mannion granted Target’s motion for summary judgment.

Thanks to James Scott for his assistance in this article.  Should you have any questions, please feel free to contact Thomas Bracken.

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Show Me The Facts (PA)

In Gayle Staiger and John Staiger v. Weis Markets, Inc., d/b/a Weis Markets, a customer of Weis Markets filed suit against the store after she allegedly slipped and fell while browsing the beverage isle. Gayle Straiger, and her husband John Staiger, asserted claims of negligence and loss of consortium against Weis Markets for failing to properly maintain the premises. However, the sole factual allegation contained in the complaint was that Gayle Staiger “believes and avers that there must have been a substance in the aisle which caused her to fall.” Properly identifying the lack of factual averments in the complaint, Weis Markets moved to have the case dismissed for failure to state a claim. The Court agreed with Weis Markets and dismissed the complaint in its entirety.

To establish a claim under premises liability, a plaintiff is required to allege the existence of a dangerous condition on the premises that creates an unreasonable risk of harm to the invitees. In this case, rather than providing factual averments detailing the existence of such a condition, Gayle Staiger simple alleged that her fall “must have been” caused by a spilled substance, because otherwise she would not have fallen. The Court was not satisfied with this lone factual averment. The Court noted that under Pennsylvania law, the “mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence.” Based on Gayle Straiger’s bare-bone complaint, this is exactly what she was asking the Court to infer.

Pennsylvania is a “fact pleading” state, meaning a complaint must aver sufficient facts upon which a claim for relief can be supported. Here, Weis Market’s attorneys rightly spotted the deficiency in the lawsuit brought against it and brought the case to a quick end by filing a Motion to Dismiss.

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

No Napkin, No Trial (NJ)

In a New Jersey Appellate Division decision from last month, a defendant’s award of summary judgment where a slip and fall was captured on video was affirmed. Estate of Lillianthal by Cohen v. Baskin-Robbins, 2021 WL 5108555 (App. Div. 2021). In this case, plaintiff fell inside a Dunkin Donuts, purportedly because of a green, sticky substance and errant napkin. Plaintiff did not notice a napkin on the floor until her daughter mentioned it. Cohen, plaintiff’s daughter, testified in her deposition that she noticed a stray napkin on the floor and another customer reportedly told Cohen that the napkin caused plaintiff’s fall. Cohen did not see the sticky green substance on the floor before or after her mother’s fall.

Dunkin employees gave deposition testimony and noted that no green beverages were sold on the date of plaintiff’s fall, no napkin was seen on the floor, and plaintiff purportedly told the Dunkin employees that she “fell over her foot.”  Video footage from the time of the incident was also submitted to the motion judge and no green substance or napkin were visible in the video.

The trial judge granted summary judgment to defendants because they claimed Dunkin lacked actual or constructive notice of the dangerous condition and the mode of operation doctrine was inapplicable in this case. The Appellate Division affirmed the trial court’s grant of summary judgment. The Appellate Division noted that while the mode of operation doctrine would apply to a fall on a napkin in a Dunkin Donuts because napkins are obtained in a self-service manner, there was no corroborating evidence on video or otherwise that plaintiff’s fall was caused by a napkin. Therefore, it was the lack of proof that a self-service component in the Dunkin store caused plaintiff’s fall that defeated plaintiff’s ability to invoke the mode of operation doctrine.

Moreover, the Appellate Division ruled that Dunkin Donuts did not have notice of any dangerous condition. The Appellate Division noted that the record was devoid of any evidence establishing where the substance and napkin came from or how long either had been present prior to plaintiff’s fall, and there was no picture, video footage, or statements from eyewitnesses corroborating the presence of a substance or napkin on the floor. Plaintiff also did not offer any evidence regarding improper surface friction of the floor tiles in the absence of any other slip and falls. Thus, the dearth of proofs in plaintiff’s case proved fatal, and summary judgment for the defense was appropriate.

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