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TT&H eNotes: Liability: January 2018


Thomas, Thomas & Hafer LLP launches new office in Marlton, NJ effective January 2018.

Thomas, Thomas & Hafer LLP announces the opening of its 9th office: Marlton, New Jersey. Located east of Cherry Hill, this office will complement the firm’s Clinton, New Jersey office and allow the firm to represent its clients in northern and southern New Jersey in a cost efficient manner.

The office initially will be staffed by Attorneys Mark R. Sander and William M. Markwardt, both of whom have more than 30 years experience as trial attorneys. Between them, their expertise includes the handling of commercial disputes, banking matters, real estate broker/dealer claims, securities litigation, appellate work, and the defense of product liability, construction defect, employment, environmental, professional malpractice, and personal injury claims.

The office address is:

Thomas, Thomas & Hafer LLP
Willow Ridge Executive Park
750 Route 73 South, Suite 205
Marlton, NJ 08053
(856) 983-0200

For additional information regarding the office, please contact Mark R. Sander at (856) 983-0200 or e‑mail at


TT&H Attorneys Scott McCarroll and Matt Clayberger win summary judgment on behalf of landlord in dog bite case with claimed serious facial injuries.

Plaintiff was visiting a friend’s apartment when a pit bull reportedly bit off the tip of his nose. Plaintiff sued the pit bull’s owner, and the apartment resident and landlord. Attorneys McCarroll and Clayberger argued that the landlord was entitled to judgment as a matter of law because the record confirmed the landlord was unaware of the pit bull’s dangerous propensities at the time of the bite. In fact, there was no evidence of record that the landlord was aware that the dog was a pit bull until after the incident.

The Court entered summary judgment in favor of the landlord finding that the undisputed evidence of record proved that the landlord had no prior knowledge of the pit bull’s asserted dangerous propensities prior to the incident. Absent actual notice of such dangerous propensities, as a matter of law, the landlord could not be held liable for the Plaintiff’s injuries.

Questions about this case can be directed to Scott McCarroll, at (717) 237-7131 or, or to Matt Clayberger, at (717) 237-7150 or


PENNSYLVANIA   |    MD    |    NEW JERSEY    |   D.C.    |   VA


Dubose v. Quinlan

Pennsylvania Supreme Court

No. 21 EAP 2016

Decided: November 22, 2017

Pursuant to § 513(d) of Mcare, the statute of limitations for survival actions in medical malpractice claims begins to accrue at time of death, not at time of injury.


In July of 2005, the Plaintiff was admitted to Albert Einstein Medical Center after falling at her home and sustaining a head injury. Plaintiff was thereafter transferred to Willowcrest Nursing Home and, upon arrival, was diagnosed with several underlying medical conditions to include pressure ulcers (bedsores). While under the care of Willowcrest from 2005 to 2007, Plaintiff’s pre-existing bedsores went untreated and new sores began to proliferate her body. In July, 2007, one of the initial bedsores became infected and the Plaintiff eventually developed sepsis. Plaintiff was again admitted to Albert Einstein Medical Center where she died of complications from sepsis and organ failure on October 18, 2007.

Plaintiff’s husband, as administrator of the Estate, initiated a wrongful-death and survival action against Willowcrest, Albert Einstein Health Network, Jefferson Health Network, and individual medical providers in August and September of 2009. The cases were then consolidated in October of 2010. After the first trial ended in a mistrial, the second jury trial returned a verdict in favor of the Estate and the Defendants filed post-trial motions. The Defendants argued that the survival action was time-barred as the statute of limitations commenced at the time that the Plaintiff sustained the bedsore in 2005, not at the time of her death in 2007.


The Supreme Court held that the plain language § 513(d) of Mcare established that a survival action in a medical professionally liability claim accrues at the time of death, not at the time of injury. The Court reasoned that the language of §513(d) clearly indicates a legislative intent to enact a specific statute of limitations for medical professional liability claims which result in a patient’s death.

Questions about this case can be directed to John Lucy, at (717) 441-7067 or

Erie Ins. Exch. v. Bristol

Pennsylvania Supreme Court

No. 124 MAP 2016, 2017 Pa. LEXIS 3183

Decided: November 22, 2017

Pennsylvania Supreme Court holds that the statute of limitation on a UM/UIM claim does not begin to run until there has been a denial of the claim or a refusal to arbitrate.


The UM claim arose out of a July 22, 2005 hit and run accident. The injured driver gave notice of his claim to his UM carrier on June 19, 2007. Over four years after the accident, the parties selected arbitrators pursuant to an arbitration clause in the policy. In 2012, the parties discussed delaying further action due to the incarceration of the insured. On May 29, 2013, Erie filed a declaratory judgment action seeking a determination that the statute of limitations on the insured driver’s UM claim had expired.

In the lower courts, the UM insurer prevailed, based on the Superior Court’s precedent in Boyle v. State Farm Auto. Ins. Co., 456 A.2d 156, 162 (Pa. Super. Ct. 1983), which held that a UM/UIM claim begins to run when the “action accrues”—that is, when the insured first knows that the other driver is underinsured or uninsured. The insured driver, however, argued for reversal of this decision on the basis that a cause of action premised on a contract cannot accrue until there has been a breach of that contract. With no breach of contract, there would be no right to sue, so the statute could not start to run. The insured contended that his insurer had never denied the claim or refused to arbitrate, so the statute had not begun to run on his 10-year old claim.


The Supreme Court found for the insured holding that the statute of limitations had not expired. The Court noted that “[u]nless a statute provides otherwise, the statute of limitations begins to run at the time when a complete cause or right of action accrues or arises, which occurs as soon as the right to institute and maintain a suit arises.” Explaining that UM/UIM claims should receive treatment no different than any other breach of contract action, the Court held that a UM cause of action does not accrue until there has been a breach of the contract “which will be occasioned in this context by a denial of a claim or the refusal to arbitrate.”

Questions about this case can be directed to Lindsey Cook, at (717) 237-7111 or

Justice v. Lombardo

Pennsylvania Commonwealth Court

No. 1439 C.D. 2016, 2016 WL 5329370

Decided: November 14, 2017

State Trooper had sovereign immunity from intentional tort claims stemming from a 50-minute traffic stop without regard to the reasonableness of his conduct.


Shiretta Justice was the driver of an automobile on I-76 in Philadelphia County (the Schuylkill Expressway). Trooper Lombardo observed the automobile switch lanes without proper signaling. After confirming her license was suspended, the Trooper permitted Ms. Justice to phone a friend to drive the vehicle. After a period of waiting, the Trooper advised he was going to have the car towed. After the Trooper’s several requests, Ms. Justice removed herself from the vehicle and then climbed over a concrete barrier on the side of I-76. The Trooper offered Ms. Justice a ride which she refused. The Trooper testified that, for safety reasons, he had to remove her from the busy highway so he grabbed her arm. Ms. Justice resisted and a “wrestling” match ensued. As soon as the Trooper handcuffed Ms. Justice, the friend arrived and the Trooper immediately uncuffed her and let her go.

Ms. Justice filed a complaint alleging numerous intentional tort claims. At trial, the Trooper moved for a directed verdict claiming sovereign immunity. The Trooper asserted that, because he was acting within the scope of his employment as a Pennsylvania State Police Officer when he handcuffed Ms. Justice, he was entitled to sovereign immunity on the intentional tort claims. The Trial Court denied the motion and a verdict of $160,000 was returned in favor of Ms. Justice. The Trooper unsuccessfully moved for judgment notwithstanding the verdict.


The Commonwealth Court held that because Trooper Lombardo was acting within the scope of his employment during the altercation, he was immune from suit for intentional torts. Per Section 229 of the Restatement (Second) of Agency, for conduct to be within the scope of employment, it must be of the same general nature as that authorized, or incidental to the conduct authorized. As the Pennsylvania State Police has authorized warrantless arrests for all violations of law, including law regulating the highways, the Trooper’s conduct in placing Ms. Justice in handcuffs was authorized, regardless of whether the conduct was reasonable, intentional, or tortious.

Questions about this case can be directed to Brad Peiffer, at (717) 237-7106 or

Roverano v. John Crane, Inc.

Pennsylvania Superior Court

No. 2837 EDA 2016

Decided: December 28, 2017

Pennsylvania Superior Court holds that the Fair Share Act applies to strict liability cases and apportionment of damages.


Plaintiffs filed suit in the Philadelphia County Court of Common Pleas against numerous defendants, alleging that husband-plaintiff’s exposure to their asbestos-containing products caused him to develop lung cancer.  The case went to trial and 8 defendants were on the verdict sheet.  The jury awarded the plaintiffs $6.3 million, but did not decide each defendant’s apportioned share of the verdict.  Rather, the Trial Court apportioned the judgment equally among the eight defendants.  Two of the defendants appealed arguing, among other things, that the Court erred in failing to apply the Fair Share Act, which would have required the jury to apportion liability among the alleged tortfeasors.


On appeal, the Superior Court vacated the Trial Court’s ruling that the Fair Share Act did not apply and remanded the case for a new trial to apportion the jury’s verdict on damages among the defendants.  In doing so, the Court examined the Fair Share Act, 42 Pa.C.S. § 7102, and noted that it explicitly states that it applies to actions for strict liability.  Prior to the passage of the Fair Share Act in 2011, Pennsylvania operated under a system of joint and several liability whereby any defendant found even 1% liable would be responsible for the full amount of the verdict.  Moreover, under the law preceding passage of the Fair Share Act, product liability defendants were to share per capita in any verdict, meaning that they would share equally in the verdict. With the passage of the Fair Share Act, defendants were to be responsible for only their proportionate share of the judgment as determined by the jury.  The Superior Court held, therefore, that because the Fair Share Act explicitly applies to actions for strict liability, the jury must apportion liability amongst product liability defendants on the verdict slip.

Roverano is an important decision for Pennsylvania product liability defendants.  Per capita verdict allocation amongst strict liability defendants is no longer the law.  Rather, apportionment will be made by the jury upon submission of appropriate evidence from which the jury is provided with a reasonable means of making an appropriate allocation.

Questions about this case can be directed to Kenneth Newman, at (412) 926-1425 or

Hodge v. Aramark Healthcare Support Servs. LLC

Pennsylvania Superior Court

No. 2201 EDA 2016

Decided: December 5, 2017

In a non-precedential decision, the Superior Court reverses summary judgment and remands case to determine whether cleaning contractor’s supervisors controlled hospital’s custodian as a “borrowed servant” when custodian failed to erect a wet floor sign, but yelled instead.


Although the hospital’s custodian yelled, “Watch, the floor is wet,” it was a moment too late for nurse-plaintiff who slipped and fell on the freshly mopped floor and suffered disabling back and neck injuries.  Defendants were alleged to be responsible, among other things, for the wet mopping of the floors at the hospital.  Defendants raised several defenses.  Germane to their motion for summary judgment, Defendants alleged that the hospital, through its custodian-employee, created the alleged dangerous condition.  Plaintiff argued that since Defendants’ supervisory personnel, including an on-site manager, trained, and supervised the custodians, Defendants asserted control over the manner in which the hospital’s custodian performed his work, including when and where to place warning signs that floors were wet. Plaintiff further argued that the hospital’s custodian was the “borrowed servant” of Defendants.  Defendants contended that they only provided consulting and supervision of the hospital’s custodians, but not control.  The lower court entered summary judgment for Defendants.


The Superior Court reversed, reiterating that in Pennsylvania, “‘[t]he test for determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it . . . irrespective of whether the control is actually exercised.’”  Although other factors may be relevant to the determination , e.g., right to select and discharge the employee, payment of wages, “ . . .each case must be decided on its own facts.”  Therefore, the Superior Court determined that Defendants right to summary judgment was not clear, that a reasonable juror could decide that Defendants  controlled the daily activities of the custodian, and remanded the case for further proceedings.

Questions about this case can be directed to Joe Holko, at (610) 332-7005 or

Erie Ins. Exch. v. Moore

Pennsylvania Superior Court

No. 869 MDA 2016

Decided: November 22, 2017

A “chaotic brawl” during which gunshots seriously injured claimant was a covered “occurrence,” based upon accidental actions, rather than conduct deliberately intended to inflict harm, and therefore insurer had duty to defend.


Insured McCutcheon went to the home of his former wife and killed her, and then committed suicide. Before he killed himself, his former wife’s boyfriend, Mr. Carly, arrived at the home and a “chaotic brawl” ensued between Mr. McCutcheon and Mr. Carly during which gunshots were fired and struck Mr. Carly. Mr. Carly sued for personal injuries. Erie Insurance, Mr. McCutcheon’s homeowner’s and excess insurer, obtained a declaration that it was not obligated to defend or indemnify McCutcheon’s Estate in the personal injury action because Mr. McCutcheon acted intentionally to harm Mr. Carly, thus taking Mr. McCutcheon’s conduct out of the realm of a covered “occurrence.” Both policies excluded coverage for conduct that was “expected or intended” by the insured. Based upon this declaration, summary judgment was entered in favor of Erie.


Mr. Carly argued that based on the facts as plead in the Complaint, Mr. McCutcheon’s actions amounted to accidental, erratic gunfire in the course of an unplanned struggle, and were thus covered. The Superior Court agreed, finding that based on the allegations raised in Mr. Carly’s Complaint, alone, Mr. McCutcheon accidentally shot Carly while Mr. McCutcheon waived his gun around during the struggle. These events fit the polices’ definitions of a covered “occurrence,” rather than conduct deliberately intended to inflict harm. Where Mr. McCutcheon did not intend the resultant damage, the exclusions for “expected or intended” conduct did not apply. Erie therefore had a duty to defend Mr. McCutcheon’s Estate in Mr. Carly’s tort action. Accordingly, the entry of summary Judgment in favor of Erie Insurance was reversed.

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or

Rickard v. Am. Nat’l Prop. and Cas. Co.

Pennsylvania Superior Court

No. 774 WDA 2015

Decided: October 25, 2017

Wife and child were not estopped from receiving wrongful death settlement funds, and decedent’s benefit plan had no lien against UIM proceeds at issue.


The Rickards filed for bankruptcy. Mr. Rickard then sustained a work-related injury in a personal vehicle. The Western Pennsylvania Teamsters and Employers Welfare Fund (the Fund), a self-insured ERISA plan, paid $279,498.03 in workers’ compensation benefits. Mr. Rickard made a UIM claim to American National Property and Casualty Company (ANPAC), settlement of which required approval of the bankruptcy court. ANPAC issued a settlement check for $250,000, and the Fund asserted a lien. The Bankruptcy Court issued an order refusing to approve the settlement or distribution, because no distribution was offered to the Fund.

Mr. Rickard then died from his injuries. The bankruptcy proceedings terminated. Mrs. Rickard submitted a wrongful death UIM claim on her and the Rickard’s daughter’s behalf. ANPAC issued a settlement check, but the Orphans’ Court would not approve distribution, holding that it was bound by collateral estoppel, as the issue before it was “virtually identical” to that the Bankruptcy Court decided. Alternatively, the Court held the Fund’s subrogation interest to be superior to that of Mrs. Rickard and counsel. Mrs. Rickard appealed, and a panel of the Superior Court affirmed the decision of the Orphans’ Court, in an unpublished memorandum opinion.


On re-argument en banc, the Superior Court held that the Bankruptcy Court’s order did not collaterally estop an Orphan’s Court claim for wrongful death damages after the bankruptcy proceedings had closed. The issues were not identical, because: 1) the decedent was alive during the bankruptcy proceedings; 2) the Bankruptcy Court did not address whether the Fund’s lien attached to a wrongful death recovery; 3) the minor daughter was not a party or in privity to a party in the bankruptcy case, and her right to recovery was separate and distinct from her mother’s; and 4) neither mother nor daughter had an opportunity to litigate the issue of whether the lien attached, because their rights to recovery accrued after the Bankruptcy Court’s Order. The Court further held that Mrs. Rickard and daughter did not receive benefits from the Fund, and that the decedent’s contractual obligations did not transfer to the wrongful death recovery.

Questions about this case can be directed to Matthew Ridley, at (717) 255-7239 or


Univ. of Md. Med. Sys. Corp. v. Kerrigan

Maryland Court of Appeals

September Term 2017, No. 3

Decided: November 28, 2017

A Trial Court’s decision to transfer a case on forum non conveniens grounds is reviewed under the abuse of discretion standard. The deference given to a plaintiff’s choice of venue is minimized when the plaintiff does not reside in the forum.


Brandon Kerrigan, a minor and Talbot County resident, received medical care related to a heart condition from various facilities in Talbot County and Baltimore City, Maryland. Along with his parents, he brought a medical malpractice action against seven defendants in the Circuit Court for Baltimore City. Defendants jointly moved to have the case transferred to Talbot County. The hearing judge considered the motion on forum non conveniens grounds and found that because seven of the ten parties, including the Plaintiffs, live in Talbot County, the Talbot County courts have fewer trials, and the sole institution in Talbot County providing medical care is a Defendant, the balance weighed heavily in favor of a transfer to Talbot County. The Court of Special Appeals reversed the decision holding that the balance of factors was nearly equal and the hearing judge abused his discretion by transferring the case. The Court of Appeals granted certiorari.


The Court of Appeals reversed the Court of Special Appeals’ decision. It held that a hearing judge’s decision to transfer a case for forum non conveniens is reviewed under an abuse of discretion standard and the Court did not abuse its discretion. Although the Trial Court must give the plaintiff’s choice of venue due deference, that choice is not an absolute privilege. The deference owed to a plaintiff choice of venue is calibrated in the non moving party’s burden of persuasion and is analyzed on a case-by-case basis using applicable factors. Here, the Court did not abuse its discretion because it gave some weight to the Plaintiff’s forum choice while factoring in that the majority of the parties, including the Plaintiffs, are in Talbot County, that the witnesses would not be inconvenienced by trying the case in Talbot County, that overall systemic integrity and fairness weighs in favor of Talbot County because its courts are less congested, the concerns outlined in the case are local to that jurisdiction, and a local jury pool should bear the burden of hearing the case. Therefore, it cannot be said that the hearing judge abused his discretion.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 or

Na v. Gillespie

Maryland Court of Special Appeals

September Term, 2016, No. 1919

Decided: December 1, 2017

Parties to private, voluntary mediations can contract to maintain the confidentiality of mediation communications.


Na and Gillespie are unmarried parents of a daughter. On November 20, 2015, Na filed a Complaint for Custody. An emergency pendente lite hearing was held that resulted in a temporary order granting joint legal custody to the parties with primary physical custody to Gillespie and visitation to Na until a merits hearing could be held. Prior to the hearing the parties attended a voluntary, private mediation, in which the parties agreed to maintain the confidentiality of statements made and documents created during the mediation. After nine hours of negotiation, the mediation was cut short due to a snowstorm. The parties ended the mediation session without reducing agreed-upon terms to writing. It was undisputed that both parties agreed to work toward drafting an outline of the terms discussed so that a consent order could be submitted to the Court. However, the parties and their counsel ultimately disagreed on the content and extent of the terms discussed during the mediation.

Na argued that the parties had reached a binding agreement. Gillespie disagreed. Accordingly, Na filed a Motion to Enforce Mediated Settlement, which Gillespie moved to dismiss. During the hearing, Na sought to introduce documents and testimony that was presented during the mediation in order to prove the terms of the parties’ alleged settlement agreement. Gillespie’s counsel objected, arguing that the confidential nature of the mediation barred such evidence. The Circuit Court agreed that the confidential statements and documents was inadmissible and denied Na’s Motion to Enforce. The Court then held a merits hearing at the close of which it awarded the parties joint legal custody and primary physical custody to Gillespie with visitation to Na. The Circuit Court also ordered Na to pay $85,000 of Gillespie’s attorney’s fees. Na filed an appeal arguing that because the parties opted for a voluntary, private mediation, none of Maryland’s mediation confidentiality statutes or rules apply.


The Court of Special Appeals considered the question whether the Circuit Court erred in denying Na’s Motion to Enforce by precluding the presentation of evidence to prove that he and Gillespie reached a final agreement during the voluntary mediation. The Court explained that while Maryland’s statutes governing the confidentiality of court-ordered mediations did not apply, both parties indisputably contracted to maintain the confidentiality of their private mediation communications and thereby were bound to such confidentiality. Accordingly, evidence of the terms of the mediation was not admissible to enforce a settlement agreement.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or


Osei-Amoaka v. Stafford FEC

New Jersey Superior Court, Appellate Division

No. A-5594-15T2

Decided: December 12, 2017

There is no breach of duty by an amusement attraction owner where Plaintiff is injured while engaged in the expected activity.


Plaintiff, Akua Osei-Amoako, broke her ankle when she slipped and fell on an amusement attraction, Foam Frenzy at the Funplex, owned and operated by Defendants Stafford FEC. The Foam Frenzy was an attraction for children, ages four through twelve, to play in 8000 to 10,000 foam balls, with adult supervision, if necessary. Participants chase each other, throw the foam balls at each other and attempt to dodge the foam balls while playing in the attraction. Plaintiff was supervising her son when she alleged she was walking towards him and slipped on one of more than fifty foam balls in her immediate area, which blended into the carpeted floor. Plaintiff contended that before she fell, she saw two employees trying to fix an inoperable vacuum that was used by participants to suck up and recirculate the loose foam balls back onto designated areas. Plaintiff’s expert opined that Plaintiff’s fall resulted from the lack of clear pathways, which prevented Plaintiff from avoiding stepping on the accumulation of foam balls which were camouflage by the multicolored carpet. Defendant moved for summary judgment contending it owed no duty to Plaintiff. The Trial Court granted the motion.


In affirming, the Superior Court agreed with the Trial Court’s determination that no reasonable juror could find Defendant breached its duty of care when Plaintiff was engaged in the very activity that she and her son expected. The main component of the attraction was to play in an area overfilled with foam balls, and Plaintiff’s injury was the result of slipping on a foam ball. The Superior Court reiterated that in the context of a business establishment, the owner “owe[s] to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation”.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or

Sabo v. Millennium Communications Group and Passaic County

New Jersey Superior Court, Appellate Division

No. A-4136-15T2

Decided: December 12, 2017

Superior Court affirms Trial Court’s denial of Defendant’s motion to vacate Plaintiffs’ arbitration award.


In June 2015, the parties arbitrated Plaintiff Sabo’s personal injury claims and an award was entered against Defendant Passaic County. The County thereafter failed to file a timely appeal for a trial de novo. Plaintiff Sabo then moved to confirm the award, and the County filed a cross-motion seeking the Trial Court’s permission to file a trial de novo, beyond the time limits prescribed, citing the vacation schedule of counsel as the reasons for the late filing.

The Trial Court granted Plaintiff Sabo’s motion to confirm the arbitration award. The County filed a motion for reconsideration, which was denied. Plaintiff Sabo attempted to execute on the judgment, and the County appealed the Trial Court’s order confirming the arbitration award. The Superior Court denied that appeal as untimely. The County then filed a motion to vacate the order with the Trial Court on substantive grounds arguing that the arbitration panel incorrectly found the County at fault for the accident, and the County was incorrectly named as a defendant. The County’s motion to vacate was also denied.


The Superior Court affirmed the Trial Court’s denial of the County’s motion to vacate. The Superior Court found that Plaintiff Sabo’s alleged incorrect naming of the County as a party did not constitute “truly exceptional circumstances” warranting vacating of an order confirming the arbitration award. The Superior Court noted that the County had procedural means to challenge the arbitration award, but failed to do so in a timely manner.

Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or

Jack v. Calvary Cemetery & Chapel Mausoleum

New Jersey Superior Court, Appellate Division

No. A-3082-15T4

Decided: December 11, 2017

The Charitable Immunity Act can apply to the ownership and operation of a cemetery by a non profitable organization even where it is not expressly listed as one of the purposes in the charitable organization’s corporate documents.


Plaintiff Gary Jack, and his wife, had just left the mausoleum chapel at Calvary Cemetery after attending a funeral service and were in the driveway area. As she was pushing him in a rolling walker, the front wheels lodged in a crack in the asphalt, causing Plaintiff to fall from the walker and break his wrist requiring surgery. The police officer who inspected the area noted “there was a crack in the asphalt that extended at least half way across the surface of the parking lot.” Defendant Calvary Cemetery is owned and operated by non profit corporations formed under N.J. Stat. § 16:15-1. The Defendants moved for summary judgment under the Charitable Immunity Act. The Trial Court granted the motion. Plaintiff appealed contending that the Act did not apply because the operation of Calvary Cemetery was not a charitable or religious work under the Act, and Plaintiff was not a beneficiary of any charitable or religious work by Defendants.


In affirming the Trial Court, the Superior Court concluded that there was no factual dispute that the cemetery was owned and operated by entities which were not-for-profit, organized for religious, charitable and educational purposes. Moreover, Defendants were engaged in promoting religious purposes when Plaintiff, who was a beneficiary of those religious works, was injured. The Superior Court was not persuaded that the lack of express reference to cemeteries in Defendants’ certificate of incorporation or bylaws was determinative in excluding cemeteries as a part of their religious purposes.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or


Reeves v. Wash. Metro. Area Transit Auth.

District of Columbia Court of Appeals

135 A.3d 807

Decided: April 14, 2016

A wet metro station floor is a “dangerous condition,” which danger is peculiarly foreseeable only to the Metro Authority and which the Metro Authority has notice of.


Plaintiff entered a DC Metro station on a rainy day. While walking through the station towards the track area, she slipped and fell. The Plaintiff’s expert testified that the friction coefficient of the metro station’s floor tiles had fallen well below safe levels due to continuous foot traffic over many years, such that even when dry, the floor would not be slip resistant, and when wet would by akin to ice. The Metro Authority moved for summary judgment, arguing that the wet floor did not constitute a dangerous condition, and that no reasonable jury could find that Plaintiff had proven a case under a failure to warn theory.

The Trial Court agreed with the Metro Authority, holding that water tracked into a metro station by the public did not constitute a “hidden or otherwise discrete danger” known only to the Metro Authority, and because Plaintiff had failed to remain conscious of her surroundings, the Metro Authority had no duty to warn her of the danger.


The Court of Appeals overturned the Trial Court’s decision. It pointed to precedent which stated that during rainstorms, landlords are on notice of potential slippery floors as dangerous conditions in their properties. The Court also noted that the question of knowledge was not just in regards to whether the floor was wet, but whether Plaintiff knew that wetness created a risk of slipping and falling. Lastly, the Court highlighted the Metro Authority’s knowledge of the dangerous condition that its wet floors presented, that the risk of slipping on wet tile floors had increased due to the wearing down of the floors to a degree not obvious to the general public, and that the Metro Authority knew that on the day of the accident it was raining and therefore had a duty to warn its customers. As such the Court vacated the judgment in favor of the Metro Authority and remanded.

Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or


MCR Federal v. JB&A, Inc.

Virginia Supreme Court

No. 161799

Decided: December 17, 2017

Virginia does not permit fraud claims arising from breaches of contractual duties, even in the event of misrepresentations, absent some other legal duty.


JB&A, Inc. was a government contractor seeking to sell itself to another government contracting firm. After searching for several years, JB&A entered into a Purchase Agreement whereby MCR Federal would purchase JB&A. The Purchase Agreement had several conditions precedent and warranties, including a Bring Down Certificate in which MCR certified that, among other things, it was not currently engaged in litigation and knew of no facts that could give rise to litigation or other claim. Before it delivered the Bring Down Certificate, MCR received notice from the Air Force that it would be suspending MCR from government contracting. As a result of the suspension, MC&R and JB&A, as a subsidiary of MCR, could not perform or bid for certain significant contracts, and JB&A failed to reach certain financial goals in the purchase Agreement and lost out on large financial incentives.

JB&A filed suit in the Circuit Court for Fairfax County alleging breach of contract and fraud based on MCR’s failure to disclose the Air Force investigation in the Bring Down Certificate. The Circuit Court ultimately entered judgment in favor of JB&A, finding that misrepresentations in regards to a condition precedent to contractual performance constituted a duty independent of the actual contract. MCR appealed, asserting that the Circuit Court had incorrectly applied Virginia’s “source of duty rule” in finding that the representations in the Bring Down Certificate were non-contractual.


The Supreme Court overruled, in part, and affirmed, in part. The Court held that MCR’s arguments as to the source of duty rule were correct; even though the misrepresentations in the Bring Down Certificate constituted a condition precedent to the remainder of the contract, the Bring Down Certificate ultimately related back to the warranties in the contract itself. Therefore, the Court held that the source of MCR’s duty was the Purchase Agreement. However, the Supreme Court agreed with the Circuit Court that JB&A had made a case for breach of contract and had proven damages sufficiently, and affirmed the award of compensatory damages to JB&A.

Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or