News No Horseplay On The Part Of Defendant-Third Circuit Affirms Grant Of Defendant’s Motion For Summary Judgment July 28, 2023 < Back Share to: In a recent opinion handed down by the United States Court of Appeals, Third Circuit, for Garcia v. Mountain Creek Riding Stable Inc., a defendant stable owner, who provided horses and guides for trail rides, who had been sued by a plaintiff who was thrown from horseback while taking part in a trail ride, had its motion for summary judgment affirmed after the plaintiff appealed the district court’s grant. The court came to its decision by applying Pennsylvania law. The evidence established that the plaintiff Garcia, who did not speak English, was asked to change into riding boots provided by the defendant Stable. Garcia v. Mountain Creek Riding Stable Inc., No. 22-1700, 2023 WL 4418230, at *1 (3d Cir. July 10, 2023). While changing into the boots, the defendant Stable provided riding instructions to the patrons. Id. Although neither plaintiff Garcia, nor her husband, spoke English, Garcia’s son was translating for her on that day. Id. Garcia’s son, however, did not provide translation of the riding instructions because the plaintiff was busy with her boots and distracted. Id. Plaintiff Garcia provided testimony that she had been in a hurry because she was worried that she would be left behind. Id. The plaintiff’s husband, who had ridden a horse before instead gave Garcia brief instruction, rather than Garcia receiving translated instruction from the employees of the defendant Stable. Further, during the period plaintiff Garcia changed into the boots, her husband signed the waiver on her behalf, which had been provided by the defendant Stable. Id. The waiver, as well as signage on the property “informed patrons that they “assume[d] full responsibility for...risks including, but not limited to, the negligence of” Mountain Creek.” Id. There had also been testimony that the senior trail guide that she was concerned about plaintiff Garcia’s “riding ability and safety, particularly because she did not speak English” however multiple witnesses stated that neither of the two trail guides rode behind plaintiff Garcia. Id. At some point during the ride, plaintiff Garcia’s horse went off trail, and although Garcia testified that at least once she tried to stop the horse by pulling on its reins, she was thrown from the horse after it reared up on its hind legs. Id. Subsequently, plaintiff Garcia brought an action alleging that the defendant Stable had been negligent by failing to prevent the harm. Id. The defendant Stable then filed a motion for summary judgment, arguing that Garcia had not provided “sufficient evidence showing that Mountain Creek failed to prevent the harm, as required under Pennsylvania law.” In reaching its decision to affirm the lower court’s judgment, the Third Circuit applied Pennsylvania law, which “follows the Restatement (Second) of Torts, §§ 509 and 518, which identify the proof required to hold the possessor of a domesticated animal, such as a horse, liable for damages. Id. *2. Because there was no evidence showing that the horse had dangerous propensities, the court applied §518, rather than §509, which would apply in a circumstance when a domesticated animal is known to have dangerous propensities. Id. Under §518, to establish liability when a plaintiff does not assert that the possessor of the animal caused the animal to do harm, the plaintiff must instead show that the possessor was “negligent in failing to prevent the harm.” Id. plaintiff Garcia alleged five ways in which the defendant Stable had been negligent: that the senior guide, despite the testimony of having been concerned for Garcia’s riding ability, allowed Garcia to ride the horse, that the guides on the trail did not notice that Garcia was incorrectly holding the saddle instead of the reins, that the guides did not tell Garcia to pull the reins instead of holding onto the saddle improperly, that Garcia did not receive instructions in Spanish, and that the guides were in front of Garcia on the trail and thus could not monitor her. Id. The Third Circuit based its decision on the following conclusions: plaintiff Garcia acknowledged that the defendant Stable had provided instructions before the ride, and because Garcia’s son who had been her translator that day did not translate the instructions and instead Garcia’s husband gave her instruction, and because Garcia “demonstrated that she understood at least some of the instructions for controlling the horse as demonstrated by the fact that she knew to pull the reins back to stop the horse on at least one occasion.” Id. Further plaintiff Garcia “presented no evidence that Mountain Creek engaged in any conduct that caused the horse to begin running and presented no evidence that “the horse was unsafe for a novice rider or that the position of the guides would have impacted the horse’s behavior,” id., Thus the Third Circuit ruled that plaintiff Garcia had “not provided evidence upon which a reasonable juror could find” the defendant Stable to be negligent under Pennsylvania law. Id. This ruling serves as a reminder of the basic requirement to support a motion for summary judgment in Pennsylvania, or to refute one on appeal. Simply put, a motion for summary judgment cannot have material facts in dispute which would require it to go before a jury. Absent those disputed material facts, a court a litigant runs the risk of receiving the same judgment as plaintiff Garcia. Thanks to Ryan Hunsicker for his contribution to this article. Should you have any questions, contact Tom Bracken. Previous Next Contact

News Definition of “Premises” Defines Extent of Coverage (PA) October 4, 2018 < Back Share to: A Pennsylvania federal court recently decided whether a landlord’s insurer can shift a shopping center’s responsibility in a slip and fall case to a tenant’s insurer, in Liberty Mutual Insurance Co. v. Selective Insurance Co. of America, case number 2:16-cv-00759, U.S. District Court for the Eastern District of Pennsylvania. In this case, the plaintiff was injured while tripping on an allegedly defective sidewalk outside of Business 21 Publishing LLC, a tenant of Stoney Creek Center. The plaintiff, an employee of Business 21, ultimately sued Stoney Creek Center and received a confidential settlement. Stoney Creek Center’s insurer sought reimbursement from Business 21’s insurer for costs associated with defense and settlement of the suit, believing it was an additional insured under its policy. Business 21 held a liability policy that extended additional insured status to companies that owned and operated the shopping center for claims of bodily injury involving premises owned or used by Business 21. Stoney Creek Center believed it was an additional insured under Business 21’s policy, taking the position that “premises” included both internal offices and outside common areas. In deciding whether additional Stoney Creek Center is owed insured status, the court turned its focus on the meaning of the word “premises” as used in the additional insured endorsement of Business 21’s policy. The judge decided that Business 21’s lease agreement with Stoney Creek Center defines the word “premises” and not the policy. The judge ruled that the terms of the lease agreement make a clear distinction between Business 21’s internal office space and its right to use the outside common areas, demonstrating that Business 21 intended for “premises” to solely mean its internal offices and not outside common areas such as the walkways and parking lot, thus determining that there was no additional insured coverage owed. Thanks to Chelsea Rendelman for her contribution to this post. Previous Next Contact

News Sidewalk Similar in Color to Lower Sidewalk = Dangerous Condition? (PA) April 6, 2019 < Back Share to: In Slappy-Sutton, et al. v. Speedway LLC, the District Court for the Eastern District of Pennsylvania entered summary judgment in favor of defendant, Speedway LLC and the plaintiffs appealed. The Third Circuit reversed the district court’s entry of summary judgment finding that there were genuine disputes of material fact. Plaintiff, Slappy-Sutton went inside Speedway convenience store to purchase snacks. After exiting the store, he crossed the sidewalk, but failed to perceive the drop-down to the ground below, and he fell. According to plaintiff, the end of the sidewalk was imperceptible due to a one-foot-wide concrete apron that was nearly identical in color to and abutted the sidewalk. Plaintiff alleged suffered physical, economical, and emotional damages in state court. Following discovery, the district court granted Speedway’s motion for summary judgment, finding that the similarity in color between the sidewalk and concrete apron did not create a dangerous condition, and that, if it did create a dangerous condition, it was open and obvious, such that Speedway was not liable for Plaintiff’s injuries. Plaintiff appealed arguing that a dispute of material fact exists as to whether the sidewalk was a dangerous condition, and, if it was, whether it was open and obvious. Based on the Third Circuit’s review of the record, the court agreed with the plaintiff. For example, plaintiff testified that, in his experience, a sidewalk’s end is usually perceptible because it either clearly contrasts with the pavement below or is marked with paint, and that he had never seen a sidewalk like Speedway’s. Also, plaintiff was prepared to introduce expert testimony to support his contention that the sidewalk’s condition was dangerous if the case went to trial. According to the Court, reasonable minds could differ on the issue of whether the sidewalk was dangerous and whether the condition was open and obvious; thus this was a question of fact for the jury. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Piano Lawsuit Dismissed - Music to the Defense's Ears (NJ) April 2, 2021 < Back Share to: What do you do when the very experienced piano movers that you hired are unable to move the piano on your property? In a recent New Jersey case, the defendants were faced with that dilemma after the plaintiff was unsuccessful at moving a piano down the home’s stairwell. In Barbato v. Gallagher, the defendant homeowners noted that the piano had been moved into the home by utilizing the back deck, and the plaintiff opted to try this method himself. The plaintiff and his coworkers reported to the back deck but realized they could not move the piano due to the presence of a grill stand on the deck. The plaintiff then opted to stand on the grill stand while moving the piano. Not surprisingly, this resulted in an injury when the grill stand separated from the main portion of the deck. The plaintiff fell, and a portion of the piano fell on top of him. The facts of the case revealed that the grill stand was in place when the defendants purchased the home, and a home inspection did not reveal any issues with the stand. However, plaintiff’s expert found issues with the screws in the grill stand and corrosion/deterioration. Defendants moved for summary judgment, arguing that they did not owe the plaintiff a duty of care because he was hired as a professional piano mover, and the defendants did not supervise him or oversee his work. Additionally, the defendants argued that they had no actual or constructive notice of any issues with the grill stand. The trial court found that the defendants did not owe the plaintiff a duty of care and dismissed the complaint. The Appellate Court upheld the dismissal but disagreed with the trial court’s reasoning. While finding that the defendants did owe the plaintiff a duty of care, the Court found that there was no evidence of actual or constructive notice of a dangerous condition on the property. Accordingly, defendants did not breach their duty of care. This case highlights the importance of establishing the lack of any actual or constructive notice of a dangerous condition on a defendant's property. Please contact Heather Aquino with any questions. Previous Next Contact

News New Jersey Supreme Court Finds Violation Of Free Speech By Banning Giant Rat Balloon At Protest. February 17, 2009 < Back Share to: In State v. DeAngelo, the unanimous Court found that a Lawrence Township ordinance which prohibited " banners, pennants, streamers...portable signs, balloons or other inflated signs ( except grand opening signs)" was unduly restrictive of free speech and expression. The case stemmed from IBEW Local 269 being fined for using a giant inflatable rat to protest a Gold's Gym being built without union labor. The Court found the protest protected by state and federal constitutions, as to both labor and content. http://lawlibrary.rutgers.edu/courts/supreme/a-73-07.opn.html Previous Next Contact

News City Sidewalks, Defective Sidewalks, Dressed in Holiday Style (NY) December 23, 2019 < Back Share to: In Rizzo v. City of New York, the plaintiff was injured when she tripped and fell on the sidewalk in front of a residence. The plaintiff commenced an action to recover damages for personal injuries against the homeowners and the City of New York. In response, the homeowners moved for summary judgment seeking to dismiss the complaint. However, their motion was ultimately denied by the Bronx County Supreme Court. In their motion for summary judgment, the homeowners alleged that they were exempt from the statutory liability imposed by the Administrative Code of the City of New York §7-210(b) because their property was an owner-occupied, two-family residence and there was no evidence showing that they made special use of the area. Further, the homeowners also made a prima facie showing that they did not cause or create the alleged defect. The homeowners supported their claim by submitting deposition testimony where they denied that they attempted to repair the area before the accident. Additionally, the homeowners submitted testimony from the City of New York's witness who attested that the property records from two years prior and the accident date were searched and no permits for sidewall repairs were found. In opposition, the plaintiff raised a triable issue of fact when she provided photographic evidence that there was a patched area on the portion of the sidewalk where she allegedly fell. Further, the plaintiff provided evidence that the City did not undertake any repairs until after the plaintiff's accident. The Appellate Division, First Department held that the defendants' denials that they repaired the sidewalk before the accident presented a credibility issue that could not be resolved on a motion for summary judgment. This decision serves as an important reminder that credibility issues raise a triable issue of fact and may defeat a motion for summary judgement. Thanks to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Can't Use Facebook To Serve Process June 13, 2012 < Back Share to: Last week we posted that NY state courts are permitting discovery of Facebook accounts in certain contexts. This week, a federal court judge in the Southern District of New York rejected a request to use Facebook as an alternative means of serving process on a hard to find third-party defendant. In Fortunato v. Chase Bank, Chase wanted to use Facebook to locate and serve the third-party defendant who had a history of providing inaccurate addresses. Chase argued that this history prevented its investigators from locating the sought after third-party defendant through normal channels. Although the judge agreed that service by normal means was impractical, he would not allow Chase to use Facebook to locate and serve the third-party defendant stating that Chase had not set forth any facts that would give the court some degree of certainty that the Facebook profile their investigator found was in fact maintained by the third-party defendant. The court, instead, allowed service by publication in four local newspapers to cover areas where the third-party defendant had listed addresses. If you have any questions or comments about this post, please email Nicole at nbrown@wcmlaw.com . Fortunato v. Chase Bank USA Previous Next Contact

News Insured's Declaratory Judgment Goes Up In Flames (PA) December 22, 2016 < Back Share to: The Eastern District of PA recently awarded summary judgment to an insurer, as well as $25,000 in damages, for an insured’s material misrepresentation in his insurance application in the case Payne v. Allstate Insurance Co.. On December 31, 2009, the insured, Payne, entered into a homeowner’s insurance agreement with Allstate Insurance Company (“Allstate”) to insure his home located in Philadelphia, PA. As a prerequisite to obtaining the insurance agreement, Payne had to fill out an insurance application. On the application, Allstate specifically asked Payne whether he used any alternative or supplemental heating source in his home. Payne answered “no.” Unsurprisingly, on February 9, 2010, Payne’s home caught fire. Thereafter, Payne filed a claim with Allstate. As part of its claim investigation, Allstate requested that Payne submit to an examination under oath. During the examination, Payne admitted to using kerosene heaters in the home and that the kerosene heaters may have started the fire. After the examination, Allstate denied Payne’s claim leading to a declaratory judgment action. Allstate counterclaimed, suing Payne for breach of contract, breach of common law duty of good faith, and insurance fraud. Both parties filed motions for summary judgment on the issues. Upon review, the court found that Payne made a material misrepresentation when he failed to disclose that he used kerosene heaters, an alternative or supplemental heating source, on his insurance application. Specifically, the court stated that the misrepresentation was material because whether Payne used alternative sources of heat was pertinent to the risk at issue in this case: fire. Because of Payne’s material misrepresentation regarding the use of an alternative heat source in the house, the court granted summary judgment as to Allstate’s claims for breach of contract, breach of common law duty of good faith, and insurance fraud. The court also awarded Allstate $25,000 in damages. Likewise, because of Payne’s material misrepresentation, the court dismissed Payne’s breach of contract claim against Allstate with prejudice. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Witness Fee Jeopardizes Defense Verdict (N.Y.) February 11, 2013 < Back Share to: The stresses of trial are many for those attorneys who try cases. One particular demon that keeps trial lawyers up at night is the worry that key witnesses, particularly non-party fact witnesses, will refuse to cooperate or honor subpoenas requiring their testimony at trial. Some witnesses claim that they are too busy, too important or can’t afford to lose the time from work to appear at trial. What may a trial lawyers ethically do to secure important trial testimony from a non-party fact witness? Just how much may the trial attorney “reimburse” a fact witness for the claimed cost and expense of appearing at trial? Can such fees become so unreasonable that a witness’s testimony may be precluded or stricken as irrevocably tainted by undue influence or bias? The New York Court of Appeals decided this thorny issue in Caldwell v. Cablevision Systems Corporation, taking a balanced approach to the problem. In Caldwell, plaintiff claimed to have tripped and fallen while walking her dog due to the negligent construction work performed in the area by the defendant. In response, the defense lawyer subpoenaed the emergency room physician who spoke with plaintiff when she first sought medical treatment and documented in his note that plaintiff “tripped over a dog while walking last night in rain.” The problem arose when it turned out that the doctor was paid $10,000 for his short appearance in the courtroom with little discussion about how the attorney or the witness arrived at that significant sum. The trial court gave plaintiff’s attorney substantial leeway in exploring the size of the payment during both cross examination and summation. Not surprisingly, the jury found the defendant negligent but that such negligence was not a proximate cause of plaintiff’s accident. On appeal, plaintiff sought a bright line ruling that the payment of a $10,000 witness fee rendered the doctor’s testimony inadmissible as a matter of law. The Court of Appeals was troubled by the size of the witness fee and its potential to influence the doctor’s fact testimony. It noted that the statutory, minimum fee for subpoenaed witnesses was a $15 appearance fee and .23 per mile for travel expenses. However, the court rules and relevant case did not forbid witness fees in excess of the statutory minimum where they reimburse a witness for “actual expenses and reasonable compensation for lost time.” In sum, the court permitted the challenged testimony to stand with the caveat that in future cases the trial judge should specifically charge the jury that it may consider whether a witness fee is “disproportionately more than what was reasonable for the loss of the witness’s time from work or business,” and, if so, whether the payment “had the effect of influencing the witness’s testimony.” Justice may be blind but it is rarely cheap. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Expertly Explained (NY) February 20, 2020 < Back Share to: The New York First Department recently held in Perez v. 139 Med Facility PC, that the defendants’ failure to order a diagnostic work-up of plaintiff’s decedent, including a chest x-ray, constituted a deviation from the standard of care sufficient to constitute a triable issue of fact and warranted reversal of the trial court’s grant of summary judgment to the defendants. In Perez, the plaintiff, the Estate of decedent Ramona Perez, filed this medical malpractice action against 139 Medical Facility, a medical group in Manhattan where Ms. Perez was treated from 2008 to 2013. In 2013, Ms. Perez was diagnosed with metastasized stage IV lung cancer and subsequently succumbed to the condition. Her Estate came to believe that the failure of 139 Medical Facility to give her a chest x-ray constituted medical malpractice, and the lawsuit was initiated. 139 Medical Facility subsequently moved for summary judgment and dismissal of claims against them, which the trial court granted. The First Department reversed, reaffirming the prior decision of McManus v. Lipton, on the basis that the plaintiff’s expert’s affirmation was sufficient to defeat summary judgment dismissal of the claims related to the failure to perform the chest x-ray because it contained “adequately detailed assertions”, which were predicated on “specific factual evidence, and were not merely speculation.” The defense bar should take note of this threshold when retaining experts. Further this case illustrates that the defense bar should also ensure that its defense experts draft reports to meet this standard, as well as note this as a potential ground upon which to attack inadequate plaintiff expert affirmations. Thanks to Shira Straus for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Material Misrepresentation in Auto Policy Application February 27, 2009 < Back Share to: In Consumer First Insurance v. Lee, the plaintiff appealed a dismissal of its declaratory judgment action against its insured. The Superior Court Appellate Division reversed and remanded, concluding that the insured made a material misrepresentation on his automobile insurance application regarding his lifelong epilepsy. As a result, plaintiff was required to extend only minimum mandatory statutory amounts of coverage to all claimants. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a5821-06.pdf Previous Next Contact

News Creative Pleading In PA Requires A Duty To Defend September 30, 2022 < Back Share to: In Siehl v. City of Johnstown, et al., the plaintiff was convicted of murder and was incarcerated for twenty-five years. The plaintiff alleged that, during his period of incarceration, the defendant city and county withheld exculpatory evidence and produced false disclosure statements. After multiple hearings, the Court determined that the defendant officers were untruthful and hid exculpatory evidence. The plaintiff was thereafter free. The plaintiff therefore sought damages for wrongful imprisonment, loss of freedom, economic loss, and critically, exposure to physically harmful prison conditions (e.g. a bodily injury). The defendant city and county thereafter added their insurance carrier to the action with a third-party complaint. The third-party defendant insurer issued an insurance policy to Cambria County, Pennsylvania. The policy in question included general liability coverage and law enforcement liability coverage that extended to cover damages because of “injury, sickness, disease, disability, shock, mental anguish, mental injury and humiliation” as well as false imprisonment, malicious prosecution, and deprivation of constitutional rights. The Eastern District began its analysis by citing the foundational pillars of insurance coverage law in Pennsylvania: the insurer's duty to defend is broader than the duty to indemnify and the duty to defend arises whenever an underlying complaint may potentially come within the insurance coverage. The insurer argued that it owed no duty to defend the claims that were derivative of the initial malicious prosecution. The court disagreed. Concluding that the allegations in the lawsuit would, if true, be covered by the policy, the Eastern District concluded that “under the legally appropriate interpretation/evaluation of the applicable language at issue, [the insurer] owe[d] a duty to defend” partially because of the allegations in the complaint concerning a bodily injury caused by an occurrence. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact