General Liability eNotes

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TT&H eNotes: Liability: February 2018


Gordon Einhorn wins subrogation trial arising from fire loss.

Plaintiff Mutual Benefit insured a property owned by Palm Management Company.  Palm Management leased one of the residential units in the property to Defendant Hope Mennonite Fellowship Missions, which then allowed a family suffering from financial hardship reside there.  A month after the family moved in, there was a fire in the second floor master bedroom which substantially damaged the property and Mutual Benefit paid its insured (Palm Management) $71,233.16 for property damage and lost rents.  Mutual Benefit, represented by Gordon Einhorn, subsequently brought a subrogation action against Hope Mennonite stating claims for negligence and breach of contract.  The contract claim was based on the lease between Hope Mennonite and Palm Management, which stated that the tenant (Hope Mennonite) would be liable for any damage caused by the tenant or its guests.  The lease also made Hope Mennonite liable for attorney’s fees.

At trial, Plaintiff’s cause and origin expert testified that the fire was caused because the bed in the master bedroom had been pushed too close to the wall, crushing the lamp plug, which was plugged into the receptacle at the head of the bed.  According to the expert, this caused a short and arcing, which ignited the mattress, resulting in the spread of the fire throughout the bedroom.  The parties stipulated that the amount of the damages was the full amount being sought by the Plaintiff and that the issue of attorneys’ fees would be reserved for a post-trial motion to be filed in the event that the jury found in Plaintiff’s favor on the question of liability.  Plaintiff successfully maintained that the negligence claim should not be put to the jury and that there need only be a determination of liability under the lease, which provided for damages if the fire was caused by the tenant or its guests.  As such, the only question submitted to the jury was whether it found by a preponderance of the evidence that Defendant Hope Mennonite, or its guests, caused the fire at the property.  The jury found for Plaintiff.  A post-trial motion for attorneys’ fees was then granted, and the Court entered judgment in favor of Mutual Benefit for the full amount of damages and attorneys’ fees.

Questions about this case can be directed to Gordon Einhorn, at 717-441-7054 or

Attorney Rebecca Sember-Izsak wins jury trial in negligence action claiming head injuries.

TT&H Attorney Rebecca Sember-Izsak won a defense verdict for Sam’s Club following a jury trial in the Allegheny County Court of Common Pleas.  The Plaintiff, an 83-year old patron of the store, claimed he was struck on the head while exiting through a vertical garage-style door.  A store employee was bringing the door down by pulling on a rope at the time of the incident.  The Plaintiff claimed post-concussion syndrome with claimed memory loss, constant headache and other symptoms as a result of the accident. Following two days of trial, the jury determined that the store and its employee were not negligent.

Questions about this case can be directed to Rebecca Sember-Izsak, at (412) 926-1446 or

Josh Bovender wins defense verdict for contractor sued in negligence action.

Attorney Joshua Bovender secured a defense arbitration award in Perry County.  Plaintiff was represented by a well-known Harrisburg law firm and asserted that the Defendant contractor negligently inspected and repaired the bathroom floor in her residence.  Plaintiff was injured when the bathroom floor collapsed two weeks after the contractor had inspected it.  At the arbitration, Josh successfully argued that the contractor did not breach the standard of care, and was without any notice that the flooring was structurally unsound.  The arbitration panel agreed and found no liability on the part of the contractor.

Questions about this case can be directed to Joshua Bovender, at (717) 237-7153 or

Renita Collins’ aggressive defense results in summary judgment and defeats appeal in apartment fire case.

The Maryland Court of Special Appeals recently dismissed an appeal and affirmed a summary judgment obtained by TT&H Attorney Renita L. Collins. The summary judgment dismissed claims for monetary damages after the fire department ruled an electrical fire, which originated from an outlet, was unintentional and accidental. The claim had been brought by an adult apartment lessee and her father, who failed to obtain renters’ insurance, despite being required to do so under the terms of the lease. Plaintiffs had claimed damage to personal property and resultant and residual emotional distress.

Granting Renita’s Motion for summary judgment, the Trial Court determined that the building’s owner and manager had no notice of a latent defect that caused the fire. The Court further concluded that Plaintiffs presented no evidence to support their claims for, inter alia, breach of contract, negligence, intentional inflection of emotional distress, and “failure to maintain premises and duty to repair defects capable of death.” Following the entry of summary judgment, Renita was able to successfully defeat two Notices of Appeal, one of which was untimely, and neither of which complied with the Maryland Rules of Civil Procedure.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 ext. 8719 or

Attorney Thomas Zumpella wins defense verdict in slip and fall case.

TT&H Attorney Tom Zumpella won a defense verdict in the Court of Common Pleas in Allegheny County.  The action involved claims of negligence against Tom’s client and certain co-defendants, all of whom allegedly failed to properly remove snow and ice from the parking lot outside a grocery store.  At trial, Attorney Zumpella pointed out that prior to the incident, his client provided maintenance on three separate occasions and, thereafter, received no notice that additional services were required.  At the conclusion of the trial, while the jury did find negligence on the part of the co-defendants, it found no negligence on the part of Tom’s client.

Questions about this case can be directed to Thomas Zumpella, at (412) 926-1422 or



Maryland’s General Assembly proposes four bills of particular interest to the property and casualty insurance industry.

Maryland’s legislative body, the General Assembly, began this year’s legislative session on January 10, 2018. Over 200 bills have been introduced to date. Of those, the following four bills are of particular interest to the property and casualty insurance industry. To be clear, the following are proposed pieces of legislation and are not yet law.

Senate Bill 5 - Civil Actions - Punitive Damages

This Code provision, sponsored by Senator Wayne Norman, seeks to replace Courts & Judicial Proceedings Article § 10-913, and to codify the basis for awarding punitive damages. Under the current statutory language, evidence of a defendant’s financial means to satisfy a punitive damages award is not admissible until after a factfinder concludes that punitive damages are justified. Additionally, common law currently defines the standard for awarding punitive damages.

The proposed Bill would require that plaintiffs prove by clear and convincing evidence that the defendant acted with wantonness, fraud, or malice to recover punitive damages. Additionally, the Bill requires that punitive damages be considered concurrently with all other issues presented during trial.

The Bill sets out the factors for the factfinder to consider when determining the amount of punitive damages. It also states that punitive damages may only be awarded when the jury unanimously reaches a decision regarding liability for punitive damages and the amount of said damages. Lastly, the Bill states that the Maryland Rules should be liberally construed to permit discovery of any information that would lead to admissible evidence on punitive damages.

Senate Bill 30 - Health Care Malpractice Qualified Expert

Senate Bill 30 seeks to repeal a requirement in Courts & Judicial Proceedings Article § 3-2A-04. The proposed Bill would apply to health care providers who attest in a certificate, or testify before an arbitration panel or court, concerning compliance or deviation from standards of care. At present, such health care providers are prohibited from devoting more than 20% of their professional activities to testimonial activities in personal injury actions. This Bill would remove that prohibition.

Senate Bill 36 - Non-Economic Damages Cap

Maryland has a statutory cap on non-economic damages. This proposed Bill seeks to increase the amount of non-economic damages two or more claimants/beneficiaries may seek in a wrongful death action. Under the Bill, the cap on such damages would increase from 150% of the statutory limit for one claimant/beneficiary to 450% of the limit. The Bill also seeks to permit informing the jury of the statutory limitations.

Senate Bill 124 - Direct Action by Third-Party Claimants Against Insurers

This Bill, sponsored by Senator Bobby Zirkin, proposes to allow third-party claimants – meaning anyone asserting an action against an insured under an automobile, homeowner’s, or renter’s insurance policy issued, sold or delivered in Maryland – to file an action directly against the insurer. The Bill would make insurers directly liable to third-party claimants within the terms and limits of the policy at issue. Under the Bill, in an action by a third-party claimant against an insurer, the insurer would be permitted to assert all defenses that would have been available had the third-party claimant brought suit against the insured. Under this Bill, if the third party claimant brings a direct action against the insurer, he/she agrees to cap recovery at the policy limits. Alternatively, the third party claimant could bring an action against the insurer and insured jointly and severally, with no policy limit cap.

Questions about any of these pieces of proposed legislation can be directed to Ben Peoples, at (202) 945-9501 or, and/or to Collin Shannon, at (202) 945-9504 or


PENNSYLVANIA   |    MD    |    NEW JERSEY    |    VA


Golon, Inc. v. Selective Ins.

United States District Court for the Western District of Pennsylvania

No. 17cv0819, 2017 US Dist. LEXIS 201792

Decided: December 7, 2017

Federal District Court grants Plaintiff’s Motion to Compel, in part, finding that the documents sought were not protected as mediation documents or mediation communications under 42 Pa.C.S.A. § 5949.


The underlying state court case was brought by a family that was involved in a motor vehicle accident with a vehicle owned by Golon and operated by one of its employees. Plaintiffs demanded a sum below the $11 million collective insurance policy provided by Selective, Golon’s insurer. Selective opted not to settle, and the jury returned a $32 million verdict against Golon and its driver. Golon initiated the instant lawsuit alleging that Selective had acted in bad faith when it refused to settle the underlying negligence case. Through this lawsuit, Golon sought to obtain access to 77 documents appearing on Selective’s privilege log.

Selective’s privilege log indicated that the documents were redacted or withheld because they either (1) were subject to the mediation privilege and/or settlement conference privilege, and (2) were not relevant to the litigation because they referenced or related to reinsurance. The issue before the Court was whether the disputed documents qualified as “mediation documents” or “mediation communications,” such that they were entitled to protection under 42 Pa.C.S.A. § 5949.


The Court held that only one of the documents qualified as a mediation document because Selective was not a party to the underlying litigation, which is a requirement for the privilege to apply. The Court further held that none of the disputed documents, with the exception of one portion of two documents, qualified as mediation communications. The Court explained that most of the documents contained redacted statements made by a person present at the mediation outside of the mediation session. Since none of those statements were made to the mediator or by the mediator, the privilege did not attach. Finally, the Court rejected Selective’s relevance argument, finding that the documents containing reinsurance information should be produced, with the caveat that they might not be admissible at the time of trial.

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or

Bielec v. Am. Int’l Group

Pennsylvania Superior Court

Nos. 336 EDA 2017, 418 EDA 2017

Decided: December 26, 2017

Superior Court holds that a waiver of underinsured motorist benefits was invalid because the insured’s signature did not appear directly after the rejection of coverage.


John Bielec was injured in an automobile accident while driving a vehicle owned by his employer. He subsequently sought underinsured motorist benefits (UIM) under his employer’s automobile policy. The employee’s claim was denied on the grounds that his employer had rejected UIM coverage. Under the Motor Vehicle Financial Responsibility Law (MVFRL), in order to validly waive UIM benefits, the insured must sign a form containing specific language set out in the MVFRL. The rejection form in this case contained a verbatim recitation of the words contained in the statute and was followed by lines for the date and signature. The form also contained boxes for the insured to check indicating that she did or did not desire UIM coverage. On the second page of the form, additional language appeared along with a second set of lines for the date and signature. The employer’s representative checked the box indicating that it was rejecting UIM coverage. However, this signature did not appear immediately after the rejection language. Rather, she signed and dated the second page of the form.


The Superior Court stated that the location of the signature in relation to the language rejecting UIM coverage was an important element in determining whether an insured had validly waived this type of insurance. Because the insured’s signature did not appear immediately after the statement that it was rejecting benefits, the rejection was held to be invalid, and the employee was found to be entitled to UIM benefits. This was the case even though there was no question that the employer did not intend to purchase UIM coverage.

The Trial Court had also held that the rejection of UIM benefits was invalid because public policy required an employer who intended to waive UIM coverage for its company-owned vehicles to inform its employees of this decision, and the employer had not done so. The Superior Court declined to address this issue.

Judge Fitzgerald filed a dissenting opinion noting that the employer’s representative signed at the end of the form after a paragraph that stated she understood the protections afforded by UIM insurance and that her selections would apply to the policy. In Judge Fitzgerald’s view, invalidating the waiver in this case elevated hyper-technical discrepancies over a form that contained the statutorily-mandated language and demonstrated that the insured understood that it was declining coverage.

An application for reargument has been filed and is currently pending before the Superior Court.

Questions about this case can be directed to Jeanette Ho, at (412) 926-1449 or

Flanagan v. Mine Run, Inc. d/b/a Eagle Stream Apts.

Pennsylvania Superior Court of

No. 187 EDA 2017

Decided: December 20, 2017

Superior Court reverses Trial Court’s grant of summary judgment, holding that Plaintiff was permitted to amend his complaint to add a new defendant after the statute of limitations has passed because he complied with existing case law and amended Rule 1033.


Plaintiff filed a complaint alleging he was injured when slipping on unsalted stairs at a housing complex known as Eagle Stream Apartments. Plaintiff’s counsel began communications with Greater New York Insurance Company (GNY), the insurer for the Apartments. Two months before the statutory deadline for filing suit, GNY sent Plaintiff’s counsel a letter indicating that its insured was not liable for Plaintiff’s loss. Plaintiff then filed his complaint which listed the defendant as “Mine Run, Inc., d/b/a Eagle Stream Apartments.” The Complaint was filed one month prior to the filing deadline. Mine Run filed preliminary objections which were approximately two weeks late. Plaintiff then filed an amended complaint 18 days after the status of limitations had run. The amended complaint changed the caption, excising Mine Run and identifying the defendant as “Eagle Stream Apartments.” Plaintiff argued that this amendment merely corrected the name of the defendant and did not identify a new entity beyond the statutory deadline for filing suit.

Mine Run continued to engage in the litigation despite being removed as a named defendant. Plaintiff then tried to file a second amended complaint but was not given leave of court. The Trial Court ultimately denied the preliminary objections to the amended complaint and which became the operative pleading. Mine Run filed an answer and new matter to the amended complaint which included the caption from the original complaint which named Mine Run. Mine Run argued that it was not associated with Eagle Stream Apartments and Plaintiff’s claims were barred by the statute of limitations. Mine Run then filed for summary judgment on behalf of Eagle Stream Apartments, despite alleging that it had no association with that entity. Summary judgment was granted by the Trial Court and Plaintiff appealed.


The Superior Court reversed the Trial Court and held that case-law, and amended Rule 1033, provide that an amendment correcting the name of a party after the statute of limitations had run is permissible so long as three conditions are met: 1) the affected party is given notice of the action within ninety days of the statutory deadline; 2) the affected party is not prejudiced in maintaining its defense on the merits; and 3) the affected party knew or should have known that it was the intended defendant despite the mistake in the original complaint. The Court found that Plaintiff satisfied all of the criteria, as Eagle Stream Apartments was served with the original complaint at the housing complex where Plaintiff fell before the statutory deadline, and it also should have known that it was the intended defendant despite Mine Run being the named defendant. Accordingly, Mine Run was dismissed as a defendant but Eagle Stream Apartments was not.

Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or

Menkowitz v. Peerless Publ'ns, Inc.

Pennsylvania Superior Court

Nos. 2048 EDA 2014, 2096 EDA 2014

Decided: December 15, 2017

In a defamation action, Superior Court holds Defendant newspaper was entitled to judgment n.o.v. because Plaintiff doctor could not meet his burden of proving that alleged injury resulted from the defamatory statement.


In 1998, Dr. Menkowitz filed a defamation suit against Peerless Publications and journalist Eric Engquist (collectively “the newspaper”) for an editorial that had run stating “Dr. Menkowitz's sudden absence from the hospital has spawned rampant rumors of professional misconduct regarding his treatment of an older female patient.” At the time of publication, Dr. Menkowitz was suspended due to behavioral concerns by the hospital with his treatment of patients and staff. In March 2016, the jury found for Dr. Menkowitz, awarding him compensatory and punitive damages.


On appeal, Dr. Menkowitz argued that although his staff privileges at the Hospital were suspended, the statements “sudden absence from the hospital has spawned rampant rumors” and “older female patient” were defamatory and false. In reviewing the evidence, the Superior Court held there was no defamation per se because an incident with an older, female, patient was one of the reasons for Dr. Menkowitz’s suspension, and there was ample evidence of “rampant rumors.” Based on its findings, the Superior Court vacated the judgment of the lower court and remanded for an entry of judgment in favor of the newspaper as Plaintiff doctor could not prove that the alleged injury to his reputation was caused by the article as opposed to the suspension itself.

Questions about this case can be directed to Jolee Bovender, at (717) 255-7626 or

Bouchon v. Citizen Care, Inc.

Pennsylvania Superior Court

2017 Pa. Super 379

Decided: December 6, 2017

Demurrer was inappropriate where a complaint’s otherwise defective allegations supported recovery. Dismissal with leave to amend was proper.


This wrongful death/survival action arose from the choking death of a group home occupant. In sustaining preliminary objections to the complaint, the Trial Court granted leave to file an amended complaint with individual and specific allegations as to each defendant in separate counts. Plaintiff filed an amended complaint with broad and conclusory statements of wrongdoing and single counts against several defendants, among other defects. Defendants again objected, with several arguing that Plaintiff failed to sufficiently allege the gross negligence necessary to trump their qualified immunity. The Court sustained the objections, and dismissed the action with prejudice, noting that amendment could not convert the averments into gross negligence, and because Plaintiff disregarded the prior order.


On appeal, Plaintiff argued, among other issues, that the Trial Court erred in granting demurrer on grounds that he failed to aver sufficient facts to state a valid claim. Plaintiff also argued that the amended complaint was properly pleaded and followed the Trial Court’s initial order. As to the first issue, the Superior Court reorganized and reworded allegations from the amended complaint to demonstrate that they might support recovery, if proven. As to the second issue, the Court noted, among other failures, that three of the negligence counts failed to identify their appropriate legal basis, several types of actions were combined and directed against multiple Defendants in single counts, and the allegations failed to specify what conduct was attributable to the particular Defendants. It was proper to dismiss a complaint, with leave to amend, with confusing allegations and combined causes of action, but error to grant demurrer, where it could not be said with certainty that recovery was impossible on the facts alleged.

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


Ben-Davis v. Blibaum & Assocs.; Moore v. Blibaum & Assocs.

Maryland Court of Appeals

September Term 2017, Misc. No. 4

Decided: January 19, 2018

When a landlord sues a tenant for breach of a residential lease and the court enters judgment in favor of the landlord for unpaid rent and other expenses, the post judgment interest rate is 6%.


In separate instances, Amber Ben-Davis and Bryione K. Moore (Tenants) failed to pay rent. Their respective landlords retained debt collector Blibaum & Associates to collect the rent and associated expenses. In each case, Blibaum obtained a money judgment that included damages for past due rent and other expenses such as unpaid utilities, cleaning, and trash disposal against the Tenants. Blibaum sought to collect the judgments and indicated that the 10% post judgment interest rate applied to the total judgment amount in each case. The Tenants filed separate actions against Blibaum in the U.S. District Court for the District of Maryland alleging that the post judgment interest was 6%, not 10%, because the money judgments related to “residential premises.” The Tenants alleged that Blibaum violated various fair debt collection laws by charging the incorrect amount of interest. The issue was certified to the Maryland Court of Appeals.


The Court of Appeals held that where a landlord sues a tenant for breach of contract based on a residential lease, and the Trial Court enters judgment in the landlord’s favor against the tenant, and the judgment includes damages for unpaid rent and other expenses, the post judgment interest rate of 6% applies pursuant to Md. Code Ann., Crts. & Jud. Proc. (1974, 2013 Repl. Vol.) §11-107(b). The Court reasoned that by its very language §11-107(b) applies to any judgment that includes unpaid rent for residential premises. Nothing in §11-107(b) indicates that it only applies to money judgments that are solely comprised of unpaid rent. Further, nothing in that provision indicates that it does not apply to actions for breach of contract between landlords and tenants. §11-107(b)’s plain purpose is to protect residential tenants from the general 10% post-judgment interest rate on money judgments.

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

Davis v. Frostburg Facility Operations, LLC

Maryland Court of Appeals

September Term, 2017, No. 12

Decided: January 19, 2018

Counts of a lawsuit sounding in medical negligence must first be submitted to the Health Care Alternative Dispute Resolution Office before being filed with a Trial Court if such counts involve medical injuries.


Following back surgery Shelia Davis was admitted to Frostburg Village, which is a nursing rehabilitation center. Her mattress came loose from her bed and “slid off the bed frame, causing Ms. Davis to fall to the floor.” The facility attempted to lift Ms. Davis back onto her bed. The facility used a mechanical lift to do so. However, the nurse controlling the lift allegedly did so improperly and dropped Ms. Davis onto the floor. The Plaintiffs’ alleged that the nurse had never used the lift before. Plaintiffs elected not to submit the case to the Maryland Health Claims Arbitration process because they believed that Ms. Davis was not receiving medical treatment or services when she was dropped to the floor. The Circuit Court Allegany County dismissed the Petitioners’ claims. It reasoned that the Plaintiffs’ complaint alleged medical injuries within coverage of the Health Claims Act and, as such, they were required to first file their claim with the Health Care Alternative Dispute Resolution Office before filing with the Circuit Court. Plantiffs’ filed a timely appeal and argued that Ms. Davis was not receiving medical treatment or services when she was dropped from the lift and, therefore, the claim did not involve injuries sustained while receiving medical care.


The Court of Appeals held that two of Davis’s counts alleged injuries sustained while receiving medical treatment within the HCA and, as such, those counts were properly dismissed. However, it held that the remaining negligence count, ordinary negligence, should not be dismissed because it did not allege a breach of the professional standard of care and, instead, involved only injuries stemming from Frostburg’s ordinary negligence in failing to properly secure a mattress to a bed frame. Davis’s counts sounding in Contract, Consumer Protection, and Loss of Consortium also survived dismissal because they did not involve injuries relating to the professional standard of care.

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


Green v. Monmouth Univ.

New Jersey Superior Court, Appellate Division

No. A-1652-15T2

Decided: January 8, 2018

Superior Court affirms Trial Court’s grant of Defendant’s motion for summary judgment under Charitable Immunity Act.


Plaintiff Green fell on a set of stairs on the campus of Defendant Monmouth University while attending a concert. The concert was organized pursuant to a contract between Monmouth and Concerts East. The contract provided Concerts East the right to book concerts at Monmouth in exchange for a rental fee for the use of the facilities and a split of merchandise sales. Concerts East assigned its rights under the contract to Thoroughbred Management. Thoroughbred and Monmouth entered into an event license agreement for the subject concert, with Monmouth handling the over-the-counter ticket sales and Thoroughbred handling the online ticket sales. Green purchased her ticket to the concert online. The ticket indicated the concert was to be held at the “MAC at Monmouth University.” Green contented she was a business invitee and that Monmouth breach its duty of care.

The Trial Court granted Monmouth’s summary judgment motion under the Charitable Immunity Act. On appeal, Green admitted that Monmouth was a non-profit corporation organized exclusively for educational purposes, but contended that Monmouth failed to meet certain criteria under the Act because it was not furthering its educational mission at the time of the fall.


The Superior Court affirmed the Trial Court’s grant of Monmouth’s motion for summary judgment. The Court noted that providing concerts to the public was one of Monmouth’s purposes and that non-profit corporations could provide educational experiences that were recreational. The Court held these purposes were served by the subject concert.

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

Perez v. Bator and Parraguez

New Jersey Superior Court, Appellate Division

No. A-1264-16T3

Decided: December 19, 2017

Abutting property owners have no duty to remove snow and ice from public sidewalks.


Plaintiff Perez was walking with her grandchild on a public sidewalk in front of the row-house residences of Defendants Joseph and Jane Bator, owners of 314 North 5th Street and Jose and Rosalyne Parraguez, owners of 312 North 5th Street. Both the Bators and Parraguezes have rooftop gutters and downspouts which channel water into the common alleyway between Defendants’ two buildings, and also spill water directly onto the public sidewalk. Weather reports reflect that it had snowed and rained at various times over the previous days and at the time of the Plaintiff’s fall the temperature was below freezing. Several children had played on the sidewalk that morning, pretending they were skating and several of them had fallen down. As the Plaintiff was walking down the sidewalk, Defendant Parraguez was outside attempting to remove snow and ice from the sidewalk from the front of the Bators’ residence, and Parageuze yelled out warning the Plaintiff. Plaintiff claimed she did not hear the warning, slipped on the ice and injured herself. The location at which Plaintiff fell was near the alleyway. Plaintiff’s liability expert, a professional engineer, concluded that the roof downspouts’ directly discharged onto the concrete sidewalk, subject to freezing and was a foreseeable hazardous and dangerous condition the Defendants knew about before the Plaintiff’s fall. Defendants retained an engineering expert which countered, opining that while the water might have come from the downspouts, the water might have come from snow uphill from the fall site. Additionally, Defendants’ expert opined that the homeowners had been “vigilant in their snow and ice mitigation measures”. The Defendants moved for summary judgment. The Trial Court granted the motion ruling that Defendants had no liability for a slippery condition of a public sidewalk created by refreezing of snow and ice and finding that the condition at issue was natural rather than artificial. Plaintiff appealed contending that the “artificial” role of Defendants’ gutters and downspouts in channeling water onto the sidewalk created, or at least worsened, the natural conditions of the sidewalk.


While the Superior Court affirmed the Trial Court’s decision, it disagreed the presence of refrozen precipitation on the sidewalk in this case was entirely the result of “natural” forces,” noting that a drainage system is a “structure erected upon land” and, as such, “a non-natural or artificial condition . . . irrespective of whether it is harmful itself or becomes so only because of the subsequent operation of natural forces.” The Superior Court concluded abutting property owners have no duty to remove snow and ice from public sidewalks. The exception to the sidewalk immunity for residential owners is where the owners “create or exacerbate a dangerous sidewalk condition”. The record demonstrated that Defendants endeavored to abate the hazard by shoveling and treating the sidewalk area.

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


Emerald Point, LLC v. Hawkins

Virginia Supreme Court

No. 161339

Decided: December 28, 2017

A spoliation instruction given without evidence that party disposing of evidence knew of probable litigation is inappropriate.


Co-tenants were leasing a property from Emerald Point. The unit was heated by a natural gas furnace, which began setting off a carbon monoxide alarm. Emerald Point took several months to resolve the carbon monoxide leak due to issues determining the source of the leak, and the tenants were injured by their exposure to carbon monoxide; some minimally and one severely. The tenants filed suit against Emerald Point and other parties to recover for their injuries, and prevailed at the circuit court level. Emerald Point appealed, assigning a number of errors including a spoliation instruction given by the circuit court permitting the jury to infer that Emerald Point’s decision to throw out the gas furnace a year after the leaks were fixed was based on the furnace being detrimental to its case.


The Court stated that absent a finding of bad faith, a spoliation instruction is not warranted unless the proponent of such instruction offers evidence that the party which disposed of the evidence knew or should have reasonably known that the evidence was material to probable or pending litigation. The Court held that without facts to support a finding of intentional loss or destruction, a spoliation instruction was too severe a punishment for what otherwise amounts to negligence, even if that negligence is gross. Because Emerald Point disposed of the furnace only after waiting a year, and before litigation began, the tenants had failed to show a design to deprive them of material evidence in probable litigation. As such, the circuit court’s spoliation instruction was a reversible error.

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