Personal Injury

Video of Bicyclist-Pedestrian Collision Raises Many Questions, Just No Triable Issues of Fact

New York judges continue to disagree on what constitutes a triable issue of fact, even where a bicyclist-pedestrian was caught on video surveillance. In a single-paragraph decision issued on February 9, 2023, the New York Court of Appeals affirmed the First Department’s grant of summary judgment to the defendant bicyclist in Zhong v. Matranga, which reversed the trial court’s denial of that motion. Of the 12 judges to consider the motion (albeit at different stages), eight found that plaintiff pedestrian failed to raise an issue of fact, while four held that she had. All watched the same video.

The First Department’s 3-2 decision – after a lively oral argument in which a divided panel peppered attorneys with questions – thoroughly examined the many dinner-table questions presented by a split-second collision on 91st Street and First Avenue on a busy Friday evening of Memorial Day weekend in 2016.

The majority held that defendant was riding his bicycle through the intersection with the green light in his favor, while plaintiff suddenly walked off the curb and into the bicycle lane against the red light for pedestrians without looking both ways and less than ten feet from the incoming bicyclist. It was undisputed that the bicyclist was riding at approximately 14mph, well below the 25mph speed limit. For those reasons, the First Department held that defendant was not negligent, and plaintiff was the sole proximate cause of the accident. The Court further held that the plaintiff’s expert’s testimony was insufficient to raise an issue of fact as it expressed in a conclusory manner that defendant was riding at an excessive speed when compared to the speed of the three other bicyclists in the video and could have slowed down, stopped, or maneuvered around plaintiff to avoid the collision. The majority pointed to the defense expert who opined that defendant could not have evaded plaintiff to the left or right without putting himself or other pedestrians at risk.

The two-Justice dissent, endorsed by Judge Rivera of the Court of Appeals, stated that, although neither party disputed that the bicyclist had the right of way, plaintiff raised a triable issue of fact through her deposition testimony that she had looked both ways and did not see defendant coming before stepping off the curb, which a jury might find indicative of excessive speed. Despite both experts testifying that defendant was riding at approximately 14mph, the dissent pointed to the video showing that defendant was at least keeping pace with a bus driving in the same direction. Moreover, a jury might find defendant’s riding faster than other bicyclists in the video surveillance probative of what constituted a safe speed under the circumstances. Ultimately, the dissent suggested that the majority was sifting and weighing relevant facts, which should be within the province of the jury.

Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions.

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Dismissal Granted Where Claim Against Party Added After the Statue of Limitations Did Not Relate Back to Filing of Original Complaint

In Coleman v. Western Oilfields Supply Co.,, the Judge Brann of the Middle District of Pennsylvania rejected the application of the relation back doctrine and granted a Defendant’s Motion to Dismiss based on the two-year statute of limitations.  Willie Coleman was injured while setting up a gas well at Chief Oil & Gas, LLC’s well pad in Wyalusing, Pennsylvania.  Evergreen Oilfield Solutions, LLC and Western Oilfield Supply Co. were allegedly responsible for “containment” at the well pad which involves “preventing containment of the grounds by laying down a cloth or other substance that covers the grounds to prevent . . . contamination.”  Around midnight on March 19, 2019, Coleman and a coworker were carrying a heavy pipe on their shoulders and began to move it through the well pad.  Coleman’s foot fell into a hole or depression causing him to trip, resulting in a severely fractured ankle.  Because the hole or depression was covered by a containment cloth, Coleman was unable to see it before he stepped in it. Plaintiffs filed a Complaint on January 15, 2021 against Chief and Western, alleging that both entities were responsible for containment at the well site.  Chief filed a Motion to Dismiss which the court converted to a Motion to Dismiss and then granted.  With leave of Court, Plaintiffs filed an Amended Complaint on May 12, 2022, that for the first time, named Evergreen as a Defendant, alleging that it was responsible for containment at the well pad.  Evergreen filed a Motion to Dismiss based on the two-year statute of limitations.  Plaintiffs responded by arguing that their claims against Evergreen related back to original complaint, which was filed within the limitations period and was therefore timely. Federal Rule of Civil Procedure Rule 15(c) permits an amended complaint that adds a new party to relate back to the filing of the original Complaint if three requirements are meant: (1)          The claims in the amended complaint must arise out of the same occurrences set forth in the original complaint; (2)          The party to be brought in by amendment must have received notice of the action within 120 days of its institution; and (3)          The party to be brought in by amendment must have known, or should have known, that the action would have been brought against the party by for a mistake concerning its identity. Although Evergreen conceded that the first requirement had been met in that the claims in the Amended Complaint arose out of the same occurrence as the original Complaint, it disputed that it had received notice of the original action within 120 days or knew or should have known that the action would have been brought against it but for a mistake concerning its identity. Plaintiffs produced no evidence of actual notice with 120 days of the initiation of the original Complaint.  The Third Circuit has endorsed two methods of imputing notice where a plaintiff cannot demonstrate that a defendant had actual notice of the suit against it.  First is the “shared attorney” method whereby notice is imputed when the originally-named party, and the party that is being added are represented by the same attorney, the attorney is likely to have communicated to the latter party that he may very well be joined in the action.  Second is the “identity of interest” method whereby the parties are so closely related in their business operations or other activities that the institution of action against one served to provide notice of the litigation to the other.  Judge Brann held that Plaintiffs had failed to meet their burden of establishing either actual or imputed notice of the action within 120 days of filing of the original complaint.  None of the Defendants shared attorneys or law firms, and there was no evidence that there was any special relationship between any of the current of former Defendants. Having failed to establish the second prong of the relation back test, Judge Brann held the Plaintiffs’ claims against Evergreen were barred by the statute of limitations and therefore granted its Motion to Dismiss. Thanks to James Scott for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More

No Duty Of Care While Freezing Rain Still In The Air (PA)

A Pennsylvania trial court granted summary judgment in a premises liability case where the plaintiff slipped and fell during an ongoing storm of rain and freezing rain, thereby reaffirming that a property owner has no obligation to remove all of the ice from its premises while the icy precipitation continued to fall.  In  Nunez v. Johnson & Johnson, Henry Nunez was employed by Allied Universal as a security guard at a FedEx warehouse in Tobyhanna, Pennsylvania when he arrived for work at approximately 1:50 p.m. to begin his work shift and parked in a parking area along the roadway within the facility, behind several other vehicles.  As he exited his vehicle, he slipped and fell on ice.  On that date of the incident, it had been raining throughout the day with periods of freezing rain.  Weather records indicate that there was freezing rain, mist, and other unknown precipitation in the immediate area from just after midnight that day until at least 2:34 p.m., which was after Nunez fell.  Throughout that period of time, rain and icy rain was falling, temperatures were under the freezing mark, and icy conditions existed on roads and parking areas.  Nunez himself confirmed there had been icy rain falling that day before he went to work, that it continued when he left for work at approximately 1:30 p.m., and during his drive to work.  Further, when he arrived at work, the icy rain event was still ongoing. Plaintiff sued the snow and ice removal contractor (SRI), who had been actively engaged in efforts using various types or remediation machinery, including graders, plow trucks, wheel loaders and manual shoveling.  SRI’s work began on the day before the loss and continued throughout the day and night of the 17^th.  The icy storm event was of a long duration.  Based on this, the Court granted the motions for summary judgment to all Defendants.  Nunez was considered a business invitee, and thus, the duty of care to a business invitee regarding conditions on the land will be breached only if: (1) the defendants know or by the exercise of reasonable care could have discovered the conditions and realized that they involved an unreasonable risk of harm to the invitee; (2) defendants should expect the plaintiff will not realize or discover the danger or will fail to protect himself from the danger; and (3) defendants fail to exercise reasonable care to protect plaintiff from the danger.  Regarding snow and ice on a walkway, it is an impossible burden to require that walkways always be free and clear of ice and snow.  The issue is whether or not defendants acted reasonably under the circumstances.  Wentz v. Pennswood Apartments, 518 A.2d 314 (Pa. Super. 1986).   Here the Court concluded that no duty of care was breached.  “A landowner [or occupier of land] has no obligation to correct conditions until a reasonable time after the winter storm has ended.”  Similarly, SRI, who was actively engaged in treating the icy conditions elsewhere on the property, cannot be held responsible for keeping the location where Nunez fell completely clear of ice at all times while there was an active ice storm occurring. The Court found that summary judgment was also appropriate due to the lack of proof of hills and ridges where Plaintiff fell.  Under Pennsylvania’s Hills and Ridges Doctrine, where generally slippery conditions exit, a plaintiff must prove: (1) that snow and ice had accumulated in ridges and elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians; (2) that the property owner had notice, either actual or constructive, of the existence of such conditions; and (3) that it was the dangerous accumulation of snow and ice that caused the plaintiff to fall.  Gilligan v. Villanova University, 584 A.2d 1005 (Pa. Super. 1991).  Here, it was indisputable that generally slippery conditions existed.  Nunez fell on a patch of ice by his vehicle.  He described a sheet of ice from his car all the way to the building where he worked.  He was unable to describe any hills or ridges that accumulated, thereby rendering summary judgment appropriate under the Hills and Ridges Doctrine. The court appropriately applied existing Pennsylvania caselaw to this case and does not alter existing obligations on landowners and contractors hired to perform premises snow removal/maintenance. Thanks to James Scott for his assistance in this post. Should you have any questions about this case, please feel free to contact Tom Bracken.Read More

Sanctions Or A Slap-On-The-Wrist? (NY)

In Castillo v. Charles (2022 NY Slip Op 06103), an action to recover damages for personal injuries, the Appellate Division Second Department, department modified the lower courts order striking the plaintiff’s pleadings, as it was “too drastic of a remedy”  (see Turiano v. Schwaber, 180 AD3d 950, 952; see also Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 211). Here, plaintiff violated court multiple court orders including those directing her to appear for a continued deposition. Plaintiff also failed to disclose photographs referenced in her first deposition, and failed to provide authorizations to obtain records from certain medical providers. The court agreed that the record supports an inference of willful and contumacious behavior, striking the pleading, in this instance, was too drastic of a remedy. The court modified the lower courts order,  granting defendant’s motion only to the extent of precluding plaintiff from using the undisclosed photographs at trial, directing plaintiff to provide medical authorizations demanded by defendants and directing plaintiff’s counsel to personally pay $3,000 as a sanction to defendant. Sanctions are intended to reinforce the notion that all parties must “play by the rules”. This decision hands out a slap-on-the-wrist as a penalty for plaintiff, while ignoring the fact that failing to disclose evidence could be detrimental to opposing counsel’s ability to make or defend their case. Thanks to Kara Nelson for her contribution to this article.  Should you have any questions, please contact Heather Aquino.Read More

Court Dismisses Defamation Suit Stemming From Negative Google Review (NY)

This past week, in DeRicco v Maidman, the First Department of the Appellate Division of the Supreme Court of New York reversed a trial court decision that denied a defendant patient’s motion to dismiss an orthodontist’s defamation claims against them.  The claims were brought by the orthodontist and his professional corporation against the patient and his parents after the parents posted an unfavorable (but anonymous) Google review. The First Department held that the review, which asserted that the orthodontist charged hidden fees, was not open during his stated business hours, and “did a horrible job” on the patient’s braces rendering the patient’s teeth “crooked and misplaced”, contained elements of both fact and opinion but was not actionable under New York law. Generally, NY courts presented with defamation suits must consider the “circumstances and [ ] the broader social context (i.e., the factual background)” to evaluate whether the message would be taken literally or figuratively by the ordinary person. Steinhilber v. Alphonse, 501 N.E.2d 550, 555 (N.Y. 1986). Here, the First Department considered the review in its overall context; for more than a decade, New York courts have noted that readers “give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” With this in mind, the court held that the review of the orthodontist posted by the patient’s parents would be understood by a reasonable reader to be “pure opinion” based on its anonymity and its “arguably loose, figurative, or hyperbolic tone.” Thus, the First Department ordered the trial court to dismiss the orthodontist’s complaint against the patient and his parents.   Thanks to Jason Laicha for his contribution to this post.   Please email Brian Gibbons with any questions about defamation claims and the defenses thereto.Read More

Readily Observable (NY)

In a recent decision, Williams v. E And R Jamaica Food Corp., the Second Department held that ” a condition is open and obvious if it is ‘readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident.” The Appellate Court granted defendant’s appeal in matter where plaintiff sustained personal injuries as a result of tripping and falling on a rolled up mat in the supermarket. The Appellate Court held that the defendant established entitlement to summary judgment by submitting evidence that the rolled-up mat was known to plaintiff prior to the accident as it was open and obvious, and thus was not inherently dangerous.  Thanks to Marium Sulaiman for her assistance with this article.  Should you have any questions, contact Tom Bracken.Read More

Burden On Defense In Multi-Accident Injuries To Prove Separate Causation (NJ)

In a recent case in the New Jersey Appellate Division, the court held that when there are claims stemming from multiple car accidents, the burden is on the defense to prove that the resulting injuries were not caused solely by the accident in which they are the defendant, rather they must demonstrate that there are multiple different causes for the injuries.

In 2015, the Plaintiff was involved in a worker’s compensation claim that damaged her spine. One year later in 2016, she was involved in a three-car accident where she was treated for injuries prior to a second car accident in 2018. Following this 2018 accident, she claimed her injuries became much worse and her pain accelerated. The trial judge dismissed the case upon a motion for summary judgment filed by defendant due to the reasoning that plaintiff’s expert report did not compare the prior injuries of the worker’s compensation injury to the acceleration caused by the two subsequent accidents.

When considering defendant’s motion, the court relied on Davidson v. Slater, where the Supreme Court of New Jersey stated that “a plaintiff could carry her burden of moving forward in her non-aggravation case by demonstrating the existence of a permanent injury resulting from the automobile accident without having to exclude all prior injuries to the same body part.” Davidson v. Slater, 914 A.2d 282, 284 (2007). In the case at hand, defendants alleged that the plaintiff was the party that had to show proof of which accident caused which specific injuries and aggravations, but the Appellate Division found that the burden of proving the causative effect of multiple collisions in relation to injuries is with the defendant.

Thanks to Domenica Tomasetti for her contributions to this post.  Please feel free to contact Tom Bracken with any questions.

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Plaintiff Is Not Entitled To 24-hour Security Camera Footage (PA)

The E.D.P.A in Dietzel v. Costco Wholesale ruled that plaintiff Dietzel was not entitled to the defendant’s Costco Wholesale’s security camera footage, unless the footage actually captured Dietzel’s accident. This case was centered on Dietzel’s trip and fall that occurred as he tried to enter a Costco location in North Wales, Pennsylvania. During discovery, Costco claimed that the alleged fall was not captured on its video camera because there were no cameras facing the area where the fall occurred. Costco refused to turn over any security camera footage, even though Dietzel’s discovery requests explicitly called for the production of security camera footage for the one hour leading up to the fall, even if the footage did not capture the fall itself. In response, Dietzel filed a Motion to Compel “any and all” footage from the property, and demanded the footage be produced prior to Dietzel’s deposition.

The Court ruled that Dietzel’s request for the entire 24-hour security camera footage from the day of the accident was overbroad and not proportional to the needs of the case. Instead, the Court instructed Costco to produce any footage capturing the 30 minutes before and after the fall occurred. If Costco didn’t have footage of the fall, Costco was required to certify that in writing. Arguably more interesting is that the Court ruled Costco must produce the footage, or certify its non-existence, prior to Dietzel’s deposition. The Court was persuaded by the reasoning used in Williams v. D.P. Fence-North. In that case, the Court discussed the differences between security camera footage and surveillance footage. Surveillance footage, typically footage of the plaintiff taken after a lawsuit has been commenced, is considered attorney work product created for purpose of impeaching a plaintiff regarding the extent of his/her injuries. As a result, surveillance footage isn’t required to be disclosed until after the plaintiff has been deposed. On the other hand, security camera footage is made in the routine course of business and is not attorney work product. The Court agreed with the ruling of several other courts which required security camera footage be produced prior to a deposition of the plaintiff.

The takeaway from this case is that while surveillance footage can be withheld until after a plaintiff’s deposition, security camera footage must be produced beforehand. In addition, a party is not entitled to an entire day’s worth of security camera footage.

Thanks to Brian Zappala for his contribution to this article.  Should you have any questions, please contact Heather Aquino.Read More

Drivers Have Duty to Yield to Pedestrians in Cross Walks Despite Driver’s Green Light (NY)

In Perez v. Bobcar Media LLC and Benny M. Cohen, the Kings County Supreme Court of New York confirmed that a driver of a motor-vehicle has a statutory duty to use due care to avoid colliding with a pedestrian, including yielding to the right-of-way to pedestrians lawfully within a crosswalk despite a driver’s green light. Both parties following discovery moved for summary judgment: the defendant on the grounds that plaintiff’s injuries failed to satisfy the “serious injury” threshold required under New York insurance law, and the plaintiff on the grounds of defendant’s liability.

Confronted with plaintiff’s and defendant’s competing medical experts, the Court denied the defendant’s motion for summary judgment because defendant’s medical expert’s statements were conclusory, claiming plaintiff’s injuries were a result of a degenerative disease despite plaintiff, a 24-year-old, never having such symptoms pre-accident.

The New York Supreme Court granted plaintiff’s motion for summary judgment on liability upon finding that plaintiff was lawfully walking in the cross-walk when defendant attempted to make a left turn, failed to yield to plaintiff, striking him. Defendant’s failure to yield was a violation of New York Traffic and Vehicle Law rendering defendant strictly liable. Moreover, defendant had a common law duty to exercise care “to see that which he should have seen through the proper use of his senses.”

The takeaway of this decision serves as a reminder that a New York driver’s violation of a Vehicle and Traffic law holds an individual strictly liable, meaning regardless of culpability, a defendant will still be on the hook for damages.

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

Video Surveillance Leaves Questions For The Jury (NY)

Even though video surveillance showed the plaintiff switching lanes in front of defendant’s bus at the same time as defendant, the Appellate Division still found there to be several issues of fact in a recent New York case. In Fergile v. Payne, plaintiff was riding a motor scooter in the right lane of traffic. Defendant bus driver was also traveling in the right lane, behind plaintiff. As the plaintiff approached an intersection he moved into the left lane. The bus also moved into the left lane and stuck the rear of the plaintiff’s motor scooter.

In New York, the “emergency doctrine” provides that when an actor is faced with a sudden and unexpected circumstance which leaves little time for deliberation, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. The Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on this doctrine.

On appeal, the Appellate Division reversed and held that despite the defendant bus driver claiming she did not see the plaintiff until seconds before the incident, there were still issues of material fact sufficient to overcome the motion, including whether the defendant’s own actions caused the emergency, and her response to the emergency.

This case reveals that even when there is surveillance video clearly showing that a driver only had a split second to make a decision, summary judgment may not be granted easily based on the emergency doctrine. The actions leading up to the emergency as well as the party’s response will be weighed thoroughly when evaluating the motion.

Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions.

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