eNotes: Liability – January 2020
December 30, 2019
Thomas, Thomas & Hafer, LLP elevates five to partner.
Thomas, Thomas & Hafer, LLP (“TTH”) has promoted the following five attorneys to partner, effective January 1, 2020: Peter C. Biberstein, Christopher M. Gallagher, Julia A. Morrison, Karin M. Romano, and Christopher L. Scott.
Founded in 1977, Thomas, Thomas & Hafer, LLP is a regional civil litigation defense firm with over 80 lawyers in nine offices throughout the Mid-Atlantic region. This group of new partners represents four of the firm’s nine offices, and holds licenses to practice law in Pennsylvania, New Jersey, Maryland, DC, and Virginia, among other jurisdictions.
TTH’s Chief Executive Partner, Ed Jordan, commented, “We are proud of this year’s class of new partners. Their elevation recognizes the depth of their legal skills and knowledge, and their commitment to client service, which is a hallmark of our firm’s success. As a group, their various locations and bar admissions reflect TTH’s growing geographic reach, and their backgrounds in the insurance industry and defense litigation is well suited for our clients.”
Peter C. Biberstein resides in the firm’s Washington, DC office where he handles a wide variety of general liability matters. Peter is a 2009 graduate of the University of Kansas, and a 2012 graduate of the George Washington University Law School. Peter is barred in DC, Virginia, and Maryland, and holds a Chartered Property Casualty Underwriter designation. He worked at a large national insurer before joining TTH.
Christopher M. Gallagher works out of TTH’s Philadelphia office where he also handles general liability cases. Chris worked as a liability adjuster at a third-party administrator for casualty insurance carriers before joining the firm. Chris received his undergraduate degree from the University of Scranton in 2000, and his law degree from Quinnipiac University School of Law in 2005. Chris is licensed to practice law in Pennsylvania and Connecticut.
Julia A. Morrison works on a variety of general liability matters in the firm’s Harrisburg office. Julia has largely practiced insurance defense litigation since graduating from law school at The Dickinson School of Law at Pennsylvania State University in 2009. Julia received her undergraduate degree from Boston College in 2003. She is barred in Pennsylvania
Karin M. Romano resides in TTH’s Pittsburgh office where she has handled civil rights, employment, and general liability cases nearly her entire career. Karin graduated in the Order of the Coif from The University of Pittsburgh School of Law in 2003 where she also served on the Law Review. Karin received her undergraduate degree from the Pennsylvania State University in 1995. She is licensed to practice law in Pennsylvania.
Christopher L. Scott practices in TTH’s Harrisburg office. Chris has handled workers’ compensation and employment cases since graduating from The Dickinson School of Law at Pennsylvania State University in 2005. Chris received his undergraduate degree from Lafayette College in 2002. He is barred in Pennsylvania and New Jersey.
TT&H LAWYERS IN COURT
TT&H Attorney James Swartz, III, wins defense verdict in Philadelphia negligence action.
Attorney Swartz won a defense verdict following a jury trial in Philadelphia County. Plaintiff claimed a slip and fall on a patch of ice from melting-refreezing conditions on a sidewalk controlled by Mr. Swartz’ client. From the fall, Plaintiff sustained a trimalleolar fracture of his right ankle.
At trial, Plaintiff admitted having walked the sidewalk earlier in the day and was aware of the conditions. However, he claimed not to have seen the particular patch of ice on his way back along the sidewalk. Relying on Plaintiff’s admissions, Jim argued that there was no liability because Plaintiff was aware of the conditions and because Plaintiff was not paying reasonable attention to where he was walking in light of the circumstances. The jury found “no negligence” on Jim’s client. Accordingly, a verdict was entered in favor of the defense.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or firstname.lastname@example.org.
TT&H SPEAKING OUT
At 12:00 p.m. on January 23, 2020, TT&H will be presenting a one hour seminar for clients entitled “Valuing Personal Injury Cases.” The event will feature Retired Judge Monty Ahalt and will take place at Westminster American Insurance Company’s educational facility located at 8890 McDonogh Road, Suite 310, Owings Mills, MD 21117. This interactive seminar will teach traditional and contemporary methods for determining the settlement value of personal injury cases. Attendees will participate in live exercises to test what they have learned. Continuing education credit will be available, you must attend in person to qualify.
If you are interested in attending this seminar or would like additional information, please contact Tony Mariani, at (717) 237-7114 or email@example.com.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
Grimsley v. Manitowoc Co.
United States Court of Appeals for the Third Circuit
No. 19-1479, 2019 U.S. App. LEXIS 14580 (non-precedential)
Decided: November 9, 2019
Third Circuit affirms summary judgment for corporate parent of a deceased worker’s employer because the parent did not have independent duties to the worker and the parent’s functions were sufficiently distinct from the subsidiary that it had no control over the worksite.
Plaintiff’s deceased husband, Rickie Grimsley was employed by Defendant Grove U.S. and died in a workplace accident after becoming trapped between two industrial cranes. Plaintiff brought negligence claims against Grove, one of his co-workers, and numerous corporate entities including Grove’s parent company, Manitowoc. In the Middle District of Pennsylvania, the District Court granted summary judgment to all Defendants. The District Court found that both the co-worker and Grove, as the employer, were immune from suit under the Pennsylvania Workers Compensation Act (PWCA). The Court further found that Plaintiff failed to state a claim for negligence against the parent corporation, Manitowoc, because it did not owe any independent duties to Mr. Grimsley.
On appeal, the Third Circuit agreed that both Grove and the co-worker were immune from suit under the PWCA. The Court also found that Plaintiff failed to demonstrate a genuine issue of material fact regarding the functions between Manitowoc and Grove, such that only Grove, and not Manitowoc, could rightly be said to be Mr. Grimsley’s employer. Grove was listed on the deed as the owner of workplace. Evidence revealed that Grove managed all the operations of the workplace and was solely responsible for developing its safety policies. Manitowoc, by contrast, did not manufacture or produce anything, and while it did handle payroll for Grove and paid employee wages, it charged those wages back to Grove. Finally, because Manitowoc was not the employer, did not own the facility, and never undertook its own duty by issuing safety standards for the facility, the Court agreed that Manitowoc did not have any independent duties toward Mr. Grimsley to support Plaintiff’s claim of negligence.
The Third Circuit held that: (1) Plaintiff’s decedent’s employer, Grove, and his co-worker, were both immune from Plaintiff’s claims under the PWCA; (2) the Plaintiff failed to demonstrate a genuine dispute of material fact as to the corporate functions between Manitowoc and its subsidiary, Grove, such that Manitowoc could not be said to control Plaintiff’s decedent’s workplace; and (3) the parent corporation, Manitowoc, did not have any other duties toward Plaintiff’s decedent to support a claim for negligence. The Court affirmed the judgment of the District Court.
Watkin v. Gwaltney of Smithfield
United States District Court for the Middle District of Pennsylvania
2019 U.S. Dist. LEXIS 193060, 2019 WL 5815398
Decided: November 6, 2019
Plaintiff’s deposition testimony alone defeats summary judgment when he was injured on a piece of sharp metal inside his hot dog, despite Defendants’ unrefuted affidavits and an opinion from a metallurgist.
Plaintiff bought a sealed 3 pound package of hot dogs at Walmart and prepared 8 of them for his family and himself. After he placed one of hot dogs in a bun and bit into it, he immediately, broke a few teeth and lacerated his tongue. He then discovered a .85” x .4” piece of sharp metal inside his hot dog. Plaintiff commenced an action against the manufacturer and Walmart.
Plaintiff was deposed and, without any further discovery, Defendants jointly moved for summary judgment based upon affidavits from Smithfield’s food safety manager and Walmart’s assistant manager. The affiant for Smithfield swore that no knives were used in processing the hot dogs and the hot dogs were packaged by robots. In addition, the hot dogs and were x-rayed to detect foreign objects over 10 times smaller than the subject piece of metal at its narrowest dimension. The affiant for Walmart swore that only box cutters were used to unpack the boxes received from Smithfield. Additionally, the metallurgist opined that the metal fragment in the hot dog was not comprised of the same metal as Walmart’s box cutters, the wearing pattern was different, and the metal was actually the tip of a common kitchen knife.
Although Defendants argued that their evidence was irrefutable (Plaintiff failed to depose the affiants and to produce a contrary expert report), the Court found that Defendants’ evidence did not demonstrate that the metal in question could not have come from them and would have escaped detection. Moreover, the Court held that Plaintiff’s deposition testimony alone was sufficient to create an issue of fact that the harm suffered by him was caused by the negligence of the Defendants.
Importantly, the Court held that Plaintiff could rely upon the doctrine of res ipsa loquitur, i.e., the thing speaks for itself, because his testimony, if believed, would satisfactorily eliminate his own conduct as a cause of his injury since he prepared a hot dog from a sealed package without a knife, and a jury may infer the negligence of Defendants from those circumstances.
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or firstname.lastname@example.org.
Brown v. Teva Pharms., Inc.
United States District Court for the Eastern District of Pennsylvania
Decided: October 23, 2019
U.S. District Court for the Eastern District of Pennsylvania holds that all aspects of “pre-service removal” must be completed by the defendant before service of state court complaint.
All events relevant to the facts of this case took place on the same day, August 16, 2019. At this time, Plaintiff filed a complaint, in the Court of Common Pleas of Philadelphia County, at 10:06 a.m. Defendants, before they were served, filed a Notice of Removal to the U. S. District Court for the Eastern District of Pennsylvania. All Defendants were served with a copy of the complaint at 2:15 p.m. Approximately two hours later, Defendants, at 4:11 p.m., filed their Notice of Removal on the Court of Common Pleas docket.
Plaintiffs argued that removal was improper because several Defendants are citizens of the State of Pennsylvania, the forum state. The Court of Appeals for the Third Circuit previously held that removal by a forum Defendant is allowed if removal to the federal court occurs before the defendant has been served. Plaintiff sought remand to the Philadelphia County Court of Common Pleas arguing that this prior holding did not apply since all aspects of the removal did not take place before the Defendants were served with the Complaint.
The District Court granted Plaintiff’s Motion to Remand. In the words of the District Court: “Timing was everything, and plaintiff has won the race.” In order to avail oneself of the earlier case holding, all aspects of the removal process must be completed before the defendants are served. In the case at bar, the forum Defendants were served with a copy of the Complaint at 2:15 p.m. However, Defendants’ Notice of removal was not placed on the State Court docket until 4:11 p.m. The forum defendant rule bars Defendants’ removal as they had been “properly joined and served” before effectuating the removal. Consequently, while federal courts do allow forum defendants to remove cases to federal court, it is clear that all aspects of the removal process must be completed prior to service. This includes not only filing of the removal papers with the federal court, but also filing of the Notice of Removal on the docket of the state court before service.
Questions about this case can be directed to Hugh O’Neill, at (717) 255-7629 or email@example.com.
PENNSYLVANIA CASE SUMMARIES
Saksek v. Janssen Pharms., Inc. (In re Risperdal Litig.)
Pennsylvania Supreme Court
No. 23 EAP 2018, 2019 Pa. LEXIS 6480
Decided: November 20, 2019
The grant of summary judgment in favor of the pharmaceutical companies was reversed because genuine issues of material fact remained with respect to their statute of limitations defense.
Plaintiff Saksek was prescribed Risperdal in 1998 at age 11 in order to manage his attention deficit hyperactivity disorder and bipolar disorder. Plaintiff Winter was prescribed Risperdal in 1997 at age 17 for anger management issues. It was subsequently discovered that Risperdal could cause hyperprolactinemia or gynecomastia. Gynecomastia is an endocrine disorder that is characterized by swelling of the breast tissue in boys or men, caused by an imbalance of the hormones estrogen and testosterone. As of 2006 Risperdal came with a warning regarding gynecomastia, however, the warning was not included during the time period either Plaintiff was taking Risperdal. Plaintiff Saksek began gaining weight and breast tissue in 2001-2002. Plaintiff Winter developed breast tissue and psychological and emotional distress in 1998. Both Plaintiffs claim they did not become aware of the link between Risperdal and their symptoms until their mothers saw television commercials in 2013 and subsequently informed them of the relationship between gynecomastia and Risperdal.
Defendants moved for summary judgment on the issue of the statute of limitations. Defendants argued, among other matters, that Plaintiffs were on inquiry notice as of October 31, 2006, when Defendants changed the Risperdal packaging to reflect the gynecomastia warnings. The Trial Court in Winter granted summary judgment but declined to adopt the October 31, 2006 deadline, but rather, decided that June 31, 2009 would be the applicable deadline given the cumulative effect of medical literature, newspaper articles, and attorney advertising available at that time. The Trial Court in Saksek entered summary judgment citing the opinion and reasoning in Winter. On appeal the Superior Court affirmed in principal part, but moved back the accrual for causes of action to October 31, 2006 when the warnings were added to the packaging and Saksek and Winter should have known of their injuries and the relationship between those injuries and Risperdal. Subsequently, the Pennsylvania Supreme Court granted discretionary review.
The grant of summary judgment in favor of the pharmaceutical companies was reversed because genuine issues of material fact remained with respect to their statute of limitations defense. The Court held that a remand was necessary as the scope of the distribution and information linking the drug at issue to gynecomastia in the medical journal articles, media reports, and lawyer advertising did not cumulatively, as a matter of law, lead to the conclusion that the patients were put on inquiry notice sufficient to establish a June 30, 2009 accrual date for their causes of action.
Questions about this case can be directed to Jonathan Danko, at (717) 441-3957 or firstname.lastname@example.org.
Hydrojet Servs. v. Reading Area Water Auth.
Pennsylvania Commonwealth Court
No. 1272 C.D. 2018, 2019 Pa. Commw. LEXIS 1009
Decided: November 14, 2019, Filed
Commonwealth Court holds that the Court of Common Pleas did not err in granting Petition to Enforce a Settlement Agreement because it was a verbal agreement that met all of the requirements for an enforceable contract.
In early 2009, Hydrojet began business at a property located in Reading, Pennsylvania. For unknown reasons, Hydrojet did not receive water bills for the property until May 2017. At this time, Reading Area Water Authority (RAWA) sent Hydrojet an invoice for its current water usage, without mention of any outstanding or unpaid charges. On November 2, 2017, Hydrojet received an invoice from RAWA detailing outstanding charges of $242,043.14, representing charges for its water and sewer usage from 2009 until May 2017. On November 21, 2017, RAWA posted a shut-off notice at the property for nonpayment of the outstanding charges. This shut-off notice advised that water service would be discontinued by December 6, 2017, unless the outstanding charges were paid in full.
Following a December 2017 meeting, the parties verbally agreed to settle the outstanding charges and for these charges to be paid in installments over time. On December 27, 2017, counsel for RAWA forwarded a final version of the written settlement agreement to counsel for Hydrojet for execution. Hydrojet’s President, signed the written settlement agreement but struck out a paragraph stating the agreement was executed voluntarily and without any duress or undue influence.
On January 24, 2018, RAWA posted a second shutoff notice at the property, with a service discontinuance date of February 8, 2018. Two days later, Hydrojet paid its January invoice and also made a lump sum payment in accordance with the terms of the settlement agreement. RAWA cashed the check from Hydrojet. Thereafter, on January 30, 2018, counsel for Hydrojet contacted counsel for RAWA to confirm that RAWA had accepted the settlement agreement and would abide by its terms. However, counsel for RAWA advised that the written agreement was not accepted. The same day, counsel for Hydrojet forwarded the executed written settlement agreement to counsel for RAWA that included the paragraph that was previously stricken. Approximately one week later, counsel for RAWA advised counsel for Hydrojet that RAWA declined to enter into the settlement and that service would be discontinued the following day as set forth in the second shut-off notice.
On February 8, 2018, Hydrojet filed a Petition for Enforcement of the Settlement Agreement, along with a request for injunctive relief seeking to enjoin RAWA from discontinuing water service to the property. The same day, the Trial Court issued an order granting Hydrojet’s request for injunctive relief and enjoined RAWA from discontinuing water service. With respect to the settlement, the Trial Court, held that the verbal agreement reached by the parties in December 2017 constituted a binding agreement and any delay in executing a written agreement memorializing the agreed-upon terms does not defeat the agreement.
The Commonwealth Court held that where a verbal settlement agreement contains all of the requirements for a valid contract, a court must enforce the terms of the agreement even if they were never formalized in writing. Manifestations of assent that are sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial. Accordingly, the Commonwealth Court affirmed the ruling of the Trial Court and held that the Petition to Enforce the Settlement Agreement was properly granted.
Questions about this case can be directed to Christopher Gallagher, at (215) 564-2928 or email@example.com.
Evans v. Travelers Ins. Co.
Pennsylvania Superior Court
2019 Pa. Super. 353
Decided: December 4, 2019
To be eligible for first party benefits for PTSD, claimant must show that PTSD was caused by bodily harm sustained in accident.
Carol Evans sustained bodily injuries resulting from a motor vehicle accident including headaches, neck pain, dizziness, balance issues, fogginess of her mental processes, extreme exhaustion, nightmares, flashbacks, and panic attacks. Several months after the collision, she began treating with a psychiatrist for Post-Traumatic Stress Disorder (PTSD). Her psychiatrist stated that he was treating Ms. Evans for PTSD “related to the accident” and that continued treatment was medically necessary.
Ms. Evans submitted an application to her insurer, Travelers, for first party benefits coverage to pay her medical expenses, including those associated with treatment for PTSD. While Travelers initially paid for such treatment, it subsequently denied coverage for future treatment due to the language of its first party benefits endorsement which required Travelers to pay “medical expenses” of an “insured who sustained ‘bodily injury’ caused by an accident arising out of the maintenance or use of a motor vehicle.” The endorsement defined “medical expenses,” in relevant part, as “reasonable and necessary charges incurred for . . . medical and rehabilitative services, including but not limited to . . . psychiatric, and psychological services.” “Bodily injury” was defined as “accidental bodily harm to a person and that person’s resulting illness, disease, or death.” Due to these definitions, Travelers claimed that Ms. Evans’ PTSD did not constitute “bodily injury” as defined by the policy, as her psychiatrist claimed it resulted from the accident, rather than from bodily injuries.
After competing Motions for summary judgment were filed on the issue, the Trial Court granted Travelers’ Motion, finding that Evans “failed to produce evidence that her mental injuries resulted from her physical injuries, which is essential to the cause of action.”
The Superior Court reversed, finding that there was a “genuine issue of a material fact as to a necessary element of the cause of action: whether Evans’ PTSD and other mental injury was caused by her bodily harm sustained in the accident.” Where Ms. Evans presented evidence to support that her PTSD resulted from not only experiencing the traumatic collision, but also from her physical injuries which caused her continuous physical pain, affected her physical and emotional well-being, and required extensive medical testing, treatment, and rehabilitation over a period of several years, it was an error for the Trial Court to grant summary judgment in favor of Travelers.
Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or firstname.lastname@example.org.
Abney v. Am. Expo Corp.
Pennsylvania Superior Court
No. 1360 EDA 2019
Decided: November 25, 2019
Summary judgment entered for Defendants where Plaintiff fell while walking in the dark.
Plaintiff was a subcontractor hired to assemble trade booths for a show at the Expo Center. He tripped and fell over a dolly inside his employer’s trailer which had no lighting and was dark. Plaintiff claimed that the landowner and lessee of the Expo Center, and the producer of the particular show, were negligent in permitting insufficient lighting conditions to exist at the Expo Center. At his deposition, Plaintiff testified that there was sufficient lighting for him to get to the trailer, but the inside of the trailer had no lights; he could not see inside the trailer; and he was “totally blind” once he entered the trailer.
The Trial Court entered summary judgment in favor of all Defendants finding that they owed Plaintiff no duty arising from the dark condition of his employer’s trailer.
On appeal to the Superior Court, Plaintiff claimed error because there were genuine issues of material fact relative to whether Plaintiff was in possession of the site of the fall and the scope of the duty of the landowner with respect to the condition it created.
In affirming the Trial Court, the Superior Court found no abuse of discretion or error of law in the Trial Court’s determination that Defendants owed no duty to the Plaintiff. The Court further held that even if the landowner had owed a duty, Plaintiff’s own testimony established that he fell due to a lack of lighting inside the trailer and not due to a lack of lighting in the venue’s common areas.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or email@example.com.
Bollard & Assoc. v. Pa. Assoc.
Pennsylvania Superior Court
2019 Pa. Super. 345
Decided: November 19, 2019
Where stipulation to discontinue Plaintiff’s claims permits the continuance of cross-claims, the Cross-Claims between Defendants are not terminated.
Plaintiff’s action was to set aside transfers of one Defendant’s assets to another under the Pennsylvania Uniform Fraudulent Transfer Act. Cross-claims were filed by the Defendants for contribution and indemnification. Eventually, Plaintiff entered into a settlement resolving all of its claims that was entitled “STIPULATION TO DISCONTINUE PLAINTIFF’S CLAIMS ONLY.” Language in the stipulation stated: “All of the remaining cross claims by the Defendants shall continue to be prosecuted by the Defendants in due course.” After the stipulation was signed, one of the Defendants sought discovery from the other. The Trial Court found that Plaintiff’s discontinuance terminated the Cross-Claims and there were no justiciable issues existing in the case. The matter was appealed.
The Superior Court found that cross-claims for indemnity or contribution are not automatically terminated by the discontinuance of the plaintiff’s claims when a stipulation is entered into between the parties permitting the cross-claims to exist after the plaintiff’s claims are resolved.
Questions about this case can be directed to Jolee Bovender, at (717) 255-7626 or firstname.lastname@example.org.
Kline v. Travelers Personal Security Ins. Co.
Pennsylvania Superior Court
2019 Pa. Super. 343
Decided: November 18, 2019
Superior Court confirms the rule that a new stacking waiver form is required from the insured any time a vehicle is added to a policy.
In September, 2012, Kline was involved in a motor vehicle accident while operating an owned vehicle. This vehicle was the third to have been added to his policy after the inception of that policy in 2002. Each time a vehicle was added to the policy, a separate stacking waiver form had not been executed, although one had been executed at the initiation of the policy. As the result of this accident, Kline brought a UIM claim against Travelers.
Travelers, maintained that the benefits could not be stacked under Kline’s policy due to the initial waiver and Travelers tendered the $50,000 available. Kline brought a declaratory judgment action to seek clarification of his rights under each of the policies. In response to this litigation, the Trial Court entered an Order in favor of Kline and his claim for stacked UIM benefits under his policy, but granted partial summary judgment in favor of Travelers, noting that Travelers did not need to provide stacked UIM coverage under the mother’s policy due to the household vehicle exclusion. Beyond this, the Trial Court also entered judgment in favor of Kline and against Travelers in the amount of $100,000, which represented the remainder of the maximum available stacked UIM coverage under his policy only. Travelers filed a Notice of Appeal to the Superior Court.
The Court began its analysis by discussing that stacked UIM coverage is the default coverage available to every insured, providing stacked coverage on all vehicles and all policies. Further, an insurance company must offer the insured the opportunity to waive stacking of UIM coverage limits whenever they purchase UIM coverage for more than one vehicle under a policy. If the insurer does not obtain a stacking waiver at that time, the amount of UIM coverage available to an insured is the sum of the limits for each motor vehicle to which the injured person is an insured. The Court also noted that nothing within the Motor Vehicle Financial Responsibility Law limited the term “purchase” to an insured’s initial purchase of an insurance policy. The addition of another vehicle to an existing policy constitutes a “purchase” under the Motor Vehicle Financial Responsibility Law. Further, the policy premium had been increased each time Kline added a vehicle to the policy.
The Court thus concluded that Kline was entitled to full-stacked coverage under his own UIM policy. However, the Court reversed the Lower Court’s entry of judgment in favor of Kline in the amount of $100,000. While, certainly, Kline was free to seek this amount, he had not established his right to it and, therefore, the Court held that this award by the Trial Court was improper.
Questions about this case can be directed to Ryan Blazure, at (570) 820-0240 or email@example.com.
MARYLAND CASE SUMMARY
Macias v. Summit Mgmt.
Maryland Court of Special Appeals
No. 1130, Sept. Term 2018
Decided: November 21, 2019
Trial Court did not err in granting Defendant’s Motion for summary judgment because even though the minor child was an invitee, the Defendant had no notice of the dangerous or defective condition.
Eight-year-old child was playing outside with his brothers at his grandparents’ condominium in Germantown, Maryland. The child had climbed atop a community sign made of large stones. When he was jumping down from the sign, a stone dislodged, fell on the minor and caused the minor to suffer injuries. Suit was filed against the condominium association for negligence. During discovery, the minor child’s father stated that his children were the only ones he had seen playing on the sign and that it appeared secure and safe.
Defendant filed a Motion for summary judgment, arguing that the Plaintiff was a trespasser or, in the alternative, that the Plaintiff failed to produce evidence that the Defendant had knowledge that children climbed the sign or that there was any defect in the construction of the sign. The Trial Court granted the Defendant’s Motion, finding that the minor was a licensee when he was climbing on the community sign because he was climbing without the owner’s consent. Additionally, the Trial Court found that even if he was an invitee, there was no evidence to support the Defendants knew or should have known of the unsafe condition. Plaintiff appealed the grant of Defendant’s Motion for summary judgment.
The Court of Special Appeals applied the landlord-tenant paradigm as the appropriate standard of care for the condominium association. The minor child was an invitee while he was playing in a common area controlled by the condominium. Yet, the Court of Special Appeals agreed that the Plaintiff failed to establish that the Defendant had actual or constructive notice that the stone would fall or by the exercise of reasonable care, that they would have discovered the condition in time to warn the Plaintiff.
Questions about this case can be directed to Lauren Upton, at (410) 653-0460 or firstname.lastname@example.org.
NEW JERSEY CASE SUMMARY
Hernandez v. Otles
New Jersey Superior Court, Appellate Division
Decided: December 9, 2019
Superior Court affirms Trial Court’s grant of summary judgment on basis that driver of Defendant’s vehicle was not Defendant’s agent when accident occurred.
Plaintiff Scaturro was driving her vehicle, with Plaintiff Hernandez as a front seat passenger, when she was rear-ended by Defendant Otles’s vehicle being driven by Sen Turan. Plaintiffs filed separate complaints against Defendant Otles alleging negligence, but did not sue Mr. Turan, and Defendant did not join Mr. Turen as a third-party defendant. During discovery, Defendant provided interrogatory answers certifying that Turan was the driver, and she was not in the vehicle when the accident occurred. She stated her husband, without her knowledge, allowed Turan to use her vehicle to go shopping.
Defendant Otles’s moved for summary judgment based upon the fact that Turan was not Defendant’s agent when the accident occurred, and, therefore, Defendant could not be liable for Plaintiffs’ injuries under the theory of agency. The Trial Court granted the motion for summary judgment.
The Appellate Division affirmed the decision of the Trial Court. The Court noted that Plaintiffs failed to provide any facts rebutting the assertion in the form of deposition testimony or affidavits from Defendant’s husband, Turan, or anyone else to establish agency existed between Defendant and Turan. The Court held that Plaintiffs established no genuine issue of material fact regarding agency to defeat summary judgment.
Questions about this case can be directed to Michael Bishop, at (908) 574-0557 or email@example.com.
DC CASE SUMMARY
Civic v. Signature Collision Centers, LLC
District of Columbia Court of Appeals
Decided: December 19, 2019
D.C. Court of Appeals affirms jury verdict of contributory negligence where Court did not instruct jury on Plaintiff’s negligence per se theory.
Melanne Civic (“Civic”) was injured in February 2013 when she fell on a “handicap ramp” while walking out of an automobile repair shop owned and/or operated by the Defendants, Signature Collision Centers, LLP and H.P. West End, LLC (“Defendants”). Civic claimed that a gap between the ramp and the landing below caused her to fall. According to Civic’s liability expert, the condition of the ramp violated Section 1003.6 of the D.C. Building Code and violated the applicable standard of care. On cross-examination, Civic testified that she had previously used the ramp to exit the repair shop, was carrying items in her hand when she fell, and that she could not remember whether she used a handrail at the time that she fell.
At trial, Civic requested a jury instruction that if the jury found that the Defendants violated Section 1003.6 of the Building Code, then the jury was required to find that the Defendants were negligent. The Trial Court refused Civic’s proposed instruction and instead instructed the jury that it could consider any violation of Section 1003.6 as evidence of negligence. The Trial Court also instructed the jury that if it found that Civic’s own negligence proximately caused her injuries, then the jury could not find Defendants liable. After a trial, the jury found that Defendants were negligent, but also found that Civic’s claims were barred by her contributory negligence. Civic appealed, challenging the jury instructions given at trial. Civic contended that the Trial Court was required to instruct the jury that Defendants were per se negligent by violating Section 1003.6, meaning that the Defendants’ violation would render them negligent as a matter of law, without any room for the jury to decide fault. Civic also challenged the Trial Court’s exclusion of a portion of Civic’s expert’s testimony regarding a separate standard for safe walkways.
The D.C. Court of Appeals affirmed and found no error in the jury instructions, holding that violations of the D.C. Building Code do not generally rise to the level of per se negligence, such that they would bar the application of contributory negligence. The Court of Appeals also held that any error in excluding a portion of Civic’s expert’s testimony was harmless, as the jury did find that Defendants were negligent. The opinion reviewed prior decisions regarding the doctrine of negligence per se and reiterated that statutes or regulations are only a basis for lifting the contributory negligence bar where the statute or regulation in question is directed at “protect[ing] persons from their own negligence.” Here, there was no basis to suggest that Section 1003.6 was intended to provide heightened protections to an unusually vulnerable person or to excuse their own contributory negligence. The judgment was thus affirmed.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or firstname.lastname@example.org.
VIRGINIA CASE SUMMARY
Corriveau v. State Farm Mut. Auto. Ins. Co.
Virginia Supreme Court
2019 Va. LEXIS 160
Decided: December 19, 2019
Uninsured motorist coverage does not extend to injuries sustained from an action or actions wholly separate from the use of a vehicle as a means of transportation.
Plaintiff was a ten year old non-verbal child with autism. While on the bus to school, and while physically restrained in his seat by a harness, Plaintiff witnessed another child with special needs being physically and verbally abused. Plaintiff was also struck more than once during the incident. At the time of the incident, Plaintiff’s mother was insured by a State Farm policy that included an uninsured motorist (UM) provision. The UM provision covered an insured’s damages for bodily injuries that “arise out of the ownership, maintenance, or use” of the uninsured motor vehicle. The parties filed cross-motions for summary judgment, with State Farm arguing that the UM coverage did not apply as a matter of law because Plaintiff’s injuries did not arise from the use of the school bus as a vehicle in the ordinary manner for which it was designed; rather, it was merely an enclosure for the commission of the criminal acts.
Plaintiff argued that the school bus was a common carrier, which supplied the nexus between his injuries and the bus, and that it was a vehicle that contemplated contact between Plaintiff and his abusers. The Circuit Court granted summary judgment for State Farm, finding that the only role that the bus played was to provide a location for the assaults. Plaintiff appealed.
The Supreme Court concluded that Plaintiff’s injuries did not arise out of the ownership, maintenance, or use of the school bus. The bus was to be used as a means of transportation, and there was no causal connection between the use of the bus as a means of transportation and Plaintiff’s injuries. Rather, the bus was used merely as a situs for the assault, a use wholly separate from the intended use as a means of transportation. Moreover, the alleged actions of the abusers were not normally contemplated by the parties to an automobile liability policy and were not reasonably foreseeable risks associated with transporting students with special needs to school. In dicta, completely unrelated to the case at bar, the Supreme Court took the opportunity to overrule long standing Virginia law about the application of UM coverage to the accidental discharge of a gun in or around a vehicle. Going forward, UM coverage does not apply if the discharge or incident could have occurred regardless of the vehicle.
Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or email@example.com.