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News Mode of Operation Rejected in Sandwich Shop Slip (NJ) October 20, 2017 < Back Share to: In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the "mode of operation" doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens). In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival. At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages. Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Lack of Boundary or Lack of Claim (NY) June 25, 2021 < Back Share to: In New York, a plaintiff commenced an action against a School District for alleged personal injuries sustained by her child while he was engaged in a drill during school basketball practice. In Secky v. New Paltz Central School District, the New York Supreme Court denied defendant's motion for summary judgment dismissing the complaint. The plaintiff’s child in Secky was participating in a basketball drill that did not use the boundary lines of the court. Accordingly, players continued to play even when the ball when out of bounds. Following a missed shot, the child went to retrieve a ball that had left the court. As the child approached the ball, around 2-4 feet from the retracted bleachers, he eased up and reached for the ball. While this was happening, a teammate bumped the child from behind face first into the bleachers. In New York, a person who voluntarily participates in a sport or recreational activity assumes the risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. However, the Plaintiff argued that the inherent risks of participating in basketball were increased by the elimination of the boundary line during the drill. On appeal, the Appellate Court concluded that the risks inherit in playing basketball were not increased by the removal of boundaries for the drill. The plaintiff provided an expert witness who claimed that the drill could have been safer by utilizing the boundary lines of the basketball court. The Appellate Court determined this assessment was insufficient to raise an issue of fact, especially because plaintiff’s expert had not proved that defendant violated a specific industry standard. As a result, the Appellate Court reversed the lower courts decision to deny the motion dismiss. This matter confirms that a defendant should always ensure that they are following specific industry standards. Because the plaintiff in this case was unable to show that the school district had not violated industry standard, her case was dismissed. Thanks to Cory Maiorana for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Staircase Not Defective Using Ancient Codes (NY) March 26, 2021 < Back Share to: In Jackson v. Bethel A.M.E, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment on the issue of liability after the plaintiff allegedly fell while descending an exterior staircase owned by defendants Bethel A.M.E and African American Methodist Episcopal Church (“Bethel Defendants”). Bethel defendants retained co-defendant D'Alessandro & Son Contractors, Inc. to regrout the staircase at issue. Plaintiff alleged the staircase was defective since it did not have a handrail in the center, in violation of the 2003 and 2007 New York State Building Code. The court stated, “….. the Bethel defendants established, prima facie, that the plaintiff did not know what had caused her to fall and that the subject staircase, which predated the 2003 and 2007 versions of the Building Code, was not required to be equipped with a handrail in the center.” The Bethel defendants were able to show they were entitled to summary judgment by establishing 1) that plaintiff did not know the cause of her fall and 2) that the defendants were not required to have a handrail in the center of this particular staircase. This decision serves as a reminder that if the plaintiff ever alleges that a defendants building is not up to code, it is imperative to hire an engineer to review the applicable code and to see if the alleged code violations pertain to the alleged defective condition. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Third Circuit Agrees that Business Earnings Prior to an Accident Are Inconclusive (PA) May 7, 2020 < Back Share to: The United States Court of Appeals for the Third Circuit recently affirmed a decision from the United States District Court for the Western District of Pennsylvania and determined that an insurer’s issues with trial evidence and claims were invalid. In Kirkpatrick v. GEICO Casualty Company, the insurance company moved for relief from a judgment or, alternatively, for a new trial which was ultimately denied on appeal. The underlying incident involved a motor vehicle accident in which Ronnie Kirkpatrick and Michelle Vensel (“Plaintiffs”) suffered permanent injuries after an automobile accident caused by a negligent driver. The plaintiffs alleged that Geico failed to make proper payment of claims under the underinsured motorist benefit of their Geico insurance policy. Specifically, the plaintiffs argued that the accident impacted their car restoration business, despite reporting losses to the IRS in the years leading up to the accident and not having finished or sold any cars to date. In response, Geico argued that the loss of earning capacity was not a result of the automobile accident. However, at the close of trial, a jury returned an award of $900,000.00 in favor of the plaintiffs. On appeal, Geico argued that the jury’s award was against the weight of the evidence because there was no evidence that the plaintiffs’ business lost profits. In fact, the plaintiffs had only recently launched their business and restored extremely expensive antique cars. The jury was able to hear evidence that the cars currently in production had “substantial estimated appraisal value upon completion” and the delays resulted in later-than-anticipated dates of sale. Furthermore, the plaintiffs demonstrated that Ronnie Kirkpatrick was unable to perform his work at the same pace as prior to the accident. Overall, the Court determined the jury had sufficient evidence to conclude that the plaintiffs’ injuries led to a “shorter economic horizon” for their business in the form of less cars restored due to more time per restoration and delayed sales dates. In affirming the District Court’s decision, the Third Circuit relied on Pennsylvania case law holding that “[d]amages for loss of earning capacity arise out of an impairment of that capacity, and not out of loss of earnings.” The Court also determined that the plaintiffs’ earnings subsequent to the injury compared with their earnings at the time of the injury is not conclusive evidence as to whether earning power has been diminished by the accident. Additionally, Geico argued that there was insufficient evidence from which the jury could use as a “yardstick” for calculating lost earning capacity. The Third Circuit disagreed and determined that the damages presented to the jury on the issues were not impermissibly speculative. The Court relied on the Pennsylvania Supreme Court decision Kaczkowski v. Bolubasz, which concluded that some speculation does not justify excluding reliable economic evidence since impression is inherent in any computation of lost future benefits. The Third Circuit also pointed out that inflation and productivity can be included in the computation of lost future earnings. Overall, the Third Circuit held that, based on the evidence presented by the plaintiffs, the jury had a sufficient evidentiary foundation and were not unduly speculative so as to warrant vacating the award. Thanks to Zhanna Dubinsky for her contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News NY Appellate Division Rules Leaseholder Can Be Responsible for Sidewalk Fall February 23, 2010 < Back Share to: In Abramson v. Eden Farms Inc., the plaintiff tripped and fell over a cracked portion of the sidewalk abutting a store leased by Eden Farm. The plaintiff brought an action against Eden Farm for the personal injuries she suffered in her fall. Eden Farm moved for summary judgment arguing that it did not create the alleged defect in the sidewalk and that, as a leaseholder, it did not have a statutory duty to maintain the sidewalk in a reasonable safe condition. The trial court denied the motion and Eden Farms appealed. Upon appeal, the First Department affirmed the denial of Eden Farms motion. In its decision, the court noted that Eden Farm had ignored the provision of its lease that required Eden Farms to make all repairs and replacements to the sidewalks and curbs adjacent to the store. The First Department also found that there was a legal question whether the lease was “comprehensive and exclusive” that it would have reassigned the landowner's duty to maintain the sidewalk to Eden Farm. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01418.htm Previous Next Contact

News Chutes and Falling Ladders: Superior Court Delves into the Appropriate Venue for a Strict Products Liability Case (PA) November 13, 2020 < Back Share to: In Kornfeind v. New Werner Holdings Co., Inc. William Kornfeind (“plaintiff”) was standing on a ladder when it slid downward, causing plaintiff to fall and sustain severe injuries. Plaintiff brought claims of strict products liability and negligence against New Werner, the designer of the ladder. Defendant filed a motion for summary judgment after discovery concluded. New Werner claimed that Pennsylvania was an improper venue because plaintiff was injured in Illinois. The trial court denied the motion and defendant appealed. The Superior Court affirmed the trial court’s ruling, noting that while plaintiff is a resident of Illinois, purchased the ladder in Illinois, and was injured in Illinois, his claims surround the design of the ladder, which allegedly occurred in Pennsylvania. Thus, venue was proper in Pennsylvania for this matter. This case reveals that when defending a strict products liability case we should look to the essence of plaintiff’s claims to determine the appropriate venue for an action. Thanks to Nicholas Wight for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News The Path Less Traveled: Walk on Grassy Medium Leads to Summary Judgment March 4, 2022 < Back Share to: Last month, New Jersey’s Appellate Division affirmed a trial court’s summary judgment decision where a Poconos Casino was granted summary judgment in a premises liability action. In Failla v. Mount Airy Casino Resort, LP, a plaintiff and her son travelled from Lyndhurst, New Jersey to Mount Airy Casino Resort in Mount Pocono Pennsylvania. Plaintiff was walking in the casino’s handicapped parking lot when she fell over a Belgian block curbing and uneven dirt path on a grassy parking lot medium. Plaintiff claimed that other patrons were walking in front of and behind her on the path. Plaintiff lost consciousness and sustained a concussion – and despite her son urging her to go home, she decided to stay at the casino. She stayed for five hours when she again lost consciousness, after which she went to the hospital and was found to have fractured her right shoulder. Plaintiff alleged that defendants breached a duty their duty to maintain a safe premises for plaintiff by failing to inspect the property for dangerous conditions and failing to remedy the dangerous condition that caused plaintiff’s fall. Defendants moved for summary judgment arguing that plaintiff fell in an area not intended for pedestrians to walk on and that the plaintiff could not identify the cause of her fall. The trial judge granted summary judgment. Plaintiff appealed, arguing that summary judgment was inappropriate as discovery had not been completed, competing expert opinions created a question of material fact, and the judge erred in applying the Choice of Ways Doctrine. Plaintiff’s expert alleged a dangerous condition existed on the grassy medium due to worn areas in the grass behind the curb which present tripping hazards and the presence of wetness on the ground. Based on these conditions and defendant’s failure to discourage patrons from crossing the parking lot islands, plaintiff’s expert concluded that defendants were negligent. Defendant’s expert noted that the parking lot was code compliant for pedestrian conditions and plaintiff’s fall was from her failure to exercise caution. Plaintiff’s expert report was disregarded by the Appellate Division since although it identified dangerous conditions based on moisture on the ground and low spots in the grass, it failed to identify which of these hazards caused plaintiff’s fall. Moreover, plaintiff could not testify whether she tripped and fell or slipped and fell. She also did not remember how she fell. Moreover, even though discovery was not complete, plaintiff’s requested discovery that was outstanding would not supply the missing elements of negligence, so this was not a reason to deny summary judgment. Finally, the court analyzed Pennsylvania’s Choice of Ways Doctrine propounded by the Pennsylvania Superior Court in Gilligan v. Villanova University, 584 A.2d 1005 (Pa. Super. Ct. 1991). Under this doctrine, where a plaintiff voluntarily chooses to walk upon an area not intended to be traversed by pedestrians and subsequently falls, that plaintiff fails to state a viable cause of action. The New Jersey Appellate Division found that case to be analogous here as there were adequate crosswalks which Plaintiff could have used, yet she was injured when she chose to walk on a grassy medium not intended for pedestrians. Therefore, summary judgment was affirmed. Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News 2nd Dept. Sides with the Medical Records (NY) January 3, 2020 < Back Share to: In Wettstein v. Tucker, the Appellate Division, Second Department addressed whether the two plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of a motor vehicle accident. The defendant moved for summary judgment to dismiss the complaint on the ground that neither plaintiff sustained a serious injury. Plaintiff Timothy alleged injuries to his spine and left shoulder, and plaintiff Michelle alleged injuries to the cervical region of her spine as a result of the subject motor vehicle accident. The Supreme Court, Nassau County granted the defendant’s motion for summary judgment, which was affirmed by the Appellate Division. The Appellate Division stated that the defendant submitted medical evidence that the plaintiffs’ injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (including under the 90/180 – day category) and that each plaintiff suffered from pre-existing conditions. This decision serves as a reminder that when making a summary judgment motion on the grounds that the plaintiff did not sustain a serious injury that it is imperative to submit medical records with your motion to prevent the plaintiff from raising a triable issue of fact. Additionally, the medical records should try to focus on the severity of the alleged injuries, and if the plaintiff suffers from any pre-existing conditions. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Crocs, children and escalators -- a marriage made in liability heaven. October 1, 2007 < Back Share to: Apparently, children who wear soft-soled sandals (like Crocs) on escalators run the risk of significant toe injuries. http://www.insurancejournal.com/news/national/2007/09/24/83639.htm Previous Next Contact

News "Brawl" At NY Hockey Game Not Assumed Risk October 5, 2009 < Back Share to: Plaintiff was injured at Nassau Coliseum while attending a charity hockey game. During the game, T-Shirts were tossed into the stands and the plaintiff was knocked over in all of the commotion caused by the other spectators trying to catch the tossed T-Shirts. Defendants moved for summary judgment, using an assumption of risk defense. The Appellate Division, Second Department, though not all in agreement on the reason, denied defendant’s motion for summary judgment. The majority concluded that defendants did not prove as a matter of law that they were entitled to summary judgment. In order to prove that plaintiff assumed the risk, they had to prove that “injury-causing events” were a known and foreseeable consequence of attending a hockey game. The majority concluded that defendants had not proven the events were a known and foreseeable consequence. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06791.htm Previous Next Contact

News Pennsylvania Law Stands Firm: Unlicensed Driver Exclusion Rejected For Medical Expense Coverage December 15, 2023 < Back Share to: Insurance policies often contain exclusion clauses designed to mitigate risks, yet the treatment of unlicensed drivers within these agreements remains a contentious issue. In particular, the denial of coverage for accidents involving unlicensed drivers has sparked legal debates across various states. The Superior Court of Pennsylvania held in Nationwide v. Castaneda that for the purposes of first-party medical expense benefits, unlicensed driver exclusions may not apply under Pennsylvania law. Nationwide Prop. & Cas. Ins. Co. v. Castaneda, 2023 PA Super 253, 2023 WL 8391516 (Dec. 5, 2023). In the underlying case, the daughter of the insured, with her mother’s permission but without a valid license, was rear-ended while operating her mother’s car. The daughter subsequently sustained severe injuries. The mother, under her auto policy, submitted a claim for first party medical expense benefits, which Nationwide denied under the policy’s “unlicensed driver exclusion”. The trial court agreed no coverage was owed. On appeal, the insured argued that even if the exclusion as written applied, the Motor Vehicle Financial Responsibility Law (“MVFRL”) made the exclusion invalid for the purposes of first party medical expense benefits . The Superior Court agreed. Citing to Section 1711 of the MVFRL, the court noted that it “specifically mandates that policyholders purchase, and insurers provide coverage for, first party medical expenses for injuries arising from the use of a motor vehicle”. Castaneda at 4. In other words, medical coverage was explicitly listed as the single benefit under Section 1711 that was to be considered a “Required Benefit”. The Court then dug into the intent of the General Assembly and remarked that by making medical expense coverage mandatory under the law, it was clearly intended to be treated differently from other first party benefit coverage. As the final nail in the coffin, the court cited to Section 1718 of the MVRFL, which sets out an enumerated list of limited circumstances when the insurer may exclude someone from the benefits of medical expense coverage. As an “unlicensed driver” exclusion was not part of the enumerated list written by the legislature, it could not be used as a means of denying “otherwise mandated coverage for first party medical benefits”. Id. at 6. The Court noted that if insurers could add to the statutory list of exclusions to deny coverage, the mandate would unreasonably be diluted to the point of losing its effect. In conclusion, because the insured’s medical expense claim did not fall under one of the limited exclusions set forth in Section 1718, Nationwide did not have a valid exclusion to rely on to refuse coverage in this limited context. The Superior Court was clear that their conclusion was to be read strictly within the confines of claims made for first party medical expense benefits. Insurers may still exclude benefits if injury arises out of intentional action by the insured, or other enumerated reasons set forth in 1718. Nationwide Property and Casualty Insurance Company v. Castaneda .pdf Download PDF • 195KB Previous Next Contact

News Windstorm Knocks Out Sublimit In Coverage Dispute (NJ) December 6, 2019 < Back Share to: The New Jersey Appellate Division recently held that the New Jersey Transit Corporation (“NJT”) was entitled to the full $400 million in policy limits from its insurers for losses sustained in the wake of Superstorm Sandy, notwithstanding the presence of a $100 million flood sublimit. The case, NJ Transit v. Lloyds reaffirms numerous central tenets of insurance law which, in this case, worked decidedly against the insurers. In 2012, NJT obtained a multi-layered property insurance program from 11 different insurers covering the period from July 1, 2012 to July 1, 2013. The policies provided “all risk” coverage through four layers of coverage totaling $400 million of limits. However, the policies contained a $100 million per-occurrence sublimit for “losses caused by flood”. The definition of “flood” included “surge.” In addition, by endorsement, the policies separately defined a “named windstorm” as wind and the resulting storm surge caused by a storm named by a national weather service. Thus, both definitions seemingly included a “surge.” When Superstorm Sandy struck in 2012, NJT quickly notified its insurers of its losses, and sought coverage under the policies. The insurers argued that the flood sublimit applied and refused to reimburse NJT for any amounts greater than $100 million. As a result, NJT filed this action seeking a declaration that the insurers owed the full $400 limits. The trial court granted NJT’s motion for summary judgment, and the ensuring appeal followed. There was no dispute that the losses were caused by Superstorm Sandy and the resulting storm surge. At specific issue on appeal was the effect of the “named windstorm” endorsement and the interplay between that language and the sublimit for “losses caused by flood.” The insurers argued that, because NJT’s losses were caused by “flood,” which included a “surge”, the sublimit applied. In affirming the trial court, the appellate court relied on the concept that, when two provisions of an insurance policy address the same subject, the more specific provision controls over the more general. Here, while the definition of “flood” included a “surge,” the definition of named windstorm specifically extended to wind driven water or storm surge associated with a "named windstorm,” which included Sandy. Thus, if the parties intended the term “flood” to include a storm surge associated with a named windstorm, the endorsement would have been unnecessary. The court further rejected the insurers’ arguments that the purpose of the endorsement, when read in conjunction with other provisions, was to highlight that losses caused by a named windstorm within a 72 hour period constitute one “occurrence” under the policy. Notably, NJT’s broker apparently represented that the flood sublimit would remain applicable notwithstanding the named windstorm definition. Nonetheless, the court found that the “named windstorm” provision was its own named peril, separate and apart from “windstorms” referenced elsewhere. The decision highlights the importance of the plain language of the policy. Although the insurers contended that the broker misrepresented their intentions when adding the “named windstorm” definition, the court sternly held that the insruers “had an obligation to read those terms before agreeing to participate in the program and provide coverage.” Thanks to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact